State of Himachal Pradesh vs Vishal Sharma

Sanjay Karol, J.—Assailing the judgment dated 18.03.2008, passed by Special Judge (II), Una, District Una, H.P., in Sessions Case No. 18/05/Sessions Trial No. 6/06, titled as State Versus Vishal Sharma, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 25.05.2005 Sub Inspector Harbans Lal (PW. 10) deputed HHC Sher Bahadur (PW. 1) to gather information with regard to alleged violation of cases. Police got information that accused was indulging in an illegal trade of psychotropic substance, and as such, information (Ex. PW.1/A) sent to superior officer. Rukka was sent to Police Station, on the basis of which FIR No. 347/05 dated 25.05.2005 (Ex. PW.2/A) was registered at Police Station, Una, H.P., under the provisions of Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. Police party headed by Harbans Lal, after associating independent witnesses namely Rajesh Kumar (PW. 8) and Anil Kumar (PW. 9) obtained consent of the accused vide memo (Ex. PW.10/B) and searched him. From the right pocket of the pants worn by the accused, a polythene envelope containing opium was recovered which upon weighment was found to be of 250 grams. Two samples of 10 grams each were drawn. Sample and bulk parcel were sealed with a seal of seal impression ''B'', which were handed over to Rajesh Kumar (PW. 8). Accused was formally arrested. NCB forms were filled up on the spot. Contraband substance and NCB forms were handed over to SHO Ajay Rana (PW. 2), who resealed the same with his own seal ''N'' and deposited the same with MHC Rajesh Kumar (PW. 4). The case property was kept in the malkhana. One sample parcel along with sample of seals and NCB forms was taken by Vijay Kumar (PW. 5) and deposited at CTL Kandaghat. Report of the Chemical Analyst (Ex. PW.2/E), obtained by the police revealed the contraband substance to be opium. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

The accused was charged for having committed an offence punishable under the provisions of Section 18 of the NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as eleven witnesses. Statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard Mr. B.S. Parmar, learned Addl. Advocate General, on behalf of the State as also Mr. Sapan Gupta, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in- AIR 1934 227 (Privy Council) , in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

In the instant case, independent witnesses Rajesh Kumar (PW. 8) and Anil Kumar (PW. 9) have not supported the prosecution case at all. They were declared hostile and extensively cross-examined, but nothing fruitful could be elicited from their testimony.

It is a settled proposition of law that merely because a witness has turned hostile, his entire evidence cannot be termed to be unworthy of credence. It is for the Court to consider, whether as a result of contradiction, witness stands fully discredited or part of his testimony can still be believed. If the credit of a witness is not fully shaken, Court can rely upon that part of the testimony which appears to be creditworthy

It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.

It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration.

Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction.

[See: Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ; and Aher Raja Khima Vs. The State of Saurashtra, .

Apex Court in Tahir Vs. State (Delhi), , dealing with a similar question, held as under:-

"6.....In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

Perusal of testimony of Sher Bahadur (PW. 1), Harbans Lal (PW. 10) and Suresh Kumar (PW. 11), who conducted the search and seizure operations are relevant in the instant case. No doubt, in their examination-in-chief part, these witnesses have deposed in the manner in which the prosecution wants us to believe, of having recovered the contraband substance from the conscious possession of the accused, but however, careful scrutiny of their cross-examination part, only reveals them to be unreliable and their testimonies shaky.

It has come in the testimony of these witnesses that on 25.05.2005, Sher Bahadur (PW. 1) on the asking of Harbans Lal (PW. 10) had gone to gather information of commission of crime. Sher Bahadur states that at 6.30 PM, he received a secret information that accused was indulging in an illicit trade. Accordingly, he got his statement recorded to Harbans Lal and sent Rukka (Ex. PW.1/A) through Constable Mohinder Singh to the Police Station. Now Mohinder Singh has not been examined in Court. Why so? Has not been explained. His non examination acquires significance in view of the contradiction with regard to the timing emerging in the testimony of PW. 10, of the police party having left the office for the spot according to PW. 10 at 6.35 PM. But he also contradicts by stating that Sher Bahadur left the spot at 9.30 PM. This witness states that police party covered a distance of 8 kms. Now this version stands belied and contradicted by Sher Bhadur (PW. 1), according to whom, he left at 5.30 PM. Thus, genesis of the prosecution story of police party having left the Police Station and being present on the spot where search and seizure operations were carried out is rendered doubtful.

Also we find that in the statement of Ajay Rana (PW. 2) u/s 161 Cr.P.C., contraband substance recovered is shown to be 320 grams which fact belies the version of prosecution witnesses of having recovered 250 grams of opium.

Police officials admit that at the spot where search and seizure operations were carried out there were shops which were open. Admittedly independent witnesses Rajesh Kumar (PW. 8) and Anil Kumar (PW. 9) are not residents of the area. They live at a far off place. Police has not shown the purpose of their presence on the spot. Why is it that police chose to associate these persons over and above independent respectable persons present on the spot, has not been explained. Harbans Lal (PW. 10) admits presence of respectable persons i.e. members of Mandir Committee to be present on the spot. This renders the prosecution case to be doubtful.

We further find that police official Harbans Lal had not informed the accused of his right of being searched by police party. Version of this witness that he handed over the seals to Rajesh Kumar (PW. 8) stands materially contradicted. Also seals were not produced in Court, which further renders the prosecution case to be doubtful. On the issue of Rukka, we may again observe that there is material contradiction in the testimonies of Jaswinder Singh (PW. 7) and Harbans Lal (PW. 10). According to Jaswinder Singh (PW. 7), Rukka was taken to the Police Station at 7.10 PM, whereas it has come on record that it was at 9.10 PM.

Prosecution wants us to believe that contraband substance was weighed with the scales and weights kept in the I.O. Kit, but then none of the witnesses have come forward to remotely establish issuance thereof.

We do not find prosecution to have proved its case beyond reasonable doubt by leading clear, cogent, convincing piece of evidence with regard to recovery of contraband substance from the conscious possession of the accused. Contradictions in the statements of the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused person has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.