State of H.P. vs Yog Raj

Sanjay Karol, J.—State has appealed against the judgment dated 12.7.2010, passed by Special Judge, Fast Track, Kullu, Himachal Pradesh, in Sessions Trial No. 26 of 2009, titled as State of H.P. v. Yog Raj and another, challenging the acquittal of respondents Yog Raj and Beli Ram (hereinafter referred to as the accused), who stand charged for having committed an offence punishable under the provisions of Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

It is the case of prosecution that on 27.4.2008 at about 1 p.m., Dy. S.P. Amar Nath (PW-13), SI Parshotam Dutt (PW-2), HC Piare Lal (PW-16), Sunil Kumar, Constable Ajay Kumar, Ward Member Chaman Lal (PW-1), Kanungo Kishore Chand (PW-3) and Patwari Durga Singh (PW-14), were present in village Taratan, when they saw opium poppy cultivated in three fields. Demarcation of the fields was conducted by Kanungo Kishore Chand, which revealed the opium poppy to be grown on Khasra No. 1725, belonging to the accused and other co-sharers. Opium poppy plants were counted and found to be 3000. The spot was also got photographed and photographs (Ex. PW-16/A-1 to Ex.PW-16/A-11) taken on record. Two samples, each containing 5 plants, were removed and sealed in separate parcels. Remaining plants were removed from the fields and put in a gunny bag (Ex. P-1). The samples and bulk parcel were sealed with seal impression ''X''. NCB form (Ex. PW-6/C) was filled up in triplicate. The parcels were seized vide Memo (Ex.PW-1/A). On the basis of Ruka (Ex. PW-16/B), which was sent to Police Station, Kullu, FIR No. 262, dated 27.4.2008, under the provisions of Section 18 of the NDPS Act, was registered. The bulk parcel alongwith the sample parcels was produced before Inspector Partap Chand (PW-9), who resealed the same with his own seal of impression ''T''. Thereafter, case property was handed over to MHC Ram Krishan, who handed over the sample alongwith other documents to Constable Narender Kumar for being deposited in the Forensic Science Laboratory, Junga for chemical analysis. Report (Ex.PW-11/A) obtained by the police was taken on record. On completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused were charged for having committed an offence punishable under the provisions of Section 18 of the NDPS Act, to which they did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 16 witnesses and statements of the accused under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which they took plea of innocence and false implication.

Based on the testimonies of witnesses and the material on record, trial Court acquitted both the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. Vikram Thakur, learned Deputy Advocate General, on behalf of the State as also Mr. R.S. Chandel, 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." "

We find that witnesses Thailu Devi (PW-4), mother of the accused; Leela Devi (PW-5), sister of the accused; and Budh Ram (PW-15), brother of the accused, have not supported the prosecution case at all. Despite their extensive cross-examination, nothing fruitful could be elicited from their testimonies.

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. But then in the instant case there is none.

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 eyewitness 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, ; Tahir Vs. State (Delhi), ; and Aher Raja Khima v. State of Saurashtra, AIR 1956]."

In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot.

Dy. SP Shri Amar Nath (PW-13) states that on 27.4.2008, when he alongwith other police and revenue officials was on patrolling duty in village Taratan, at about 1 p.m. they found that opium was cultivated in 2-3 fields. Revenue officials, Kanungo Kishore Chand (PW-3) and Patwari Durga Singh (PW14), after seeing the record, told that the fields belonged to the accused persons. Witness states that they left the Police Station for the purpose of patrolling. However, there is nothing on record to establish Ravangi (departure) of the police to the spot, in connection with the same. Genesis of the prosecution story, to our mind, does not inspire confidence at all.

Further, Kanungo Kishore Chand and Patwari Durga Singh state that they conducted demarcation of Khasra No. 1725, on the asking of police, to ascertain the exact location of the plants. They have proved jamabandi (Ex. PW-3/A) and copy of Shajra (Ex. PW-3/B). Both the witnesses admit that in revenue record, Khasra No. 1725 is recorded as jointly owned and possessed by the land owners. They are categorical that the land has not been partitioned and could not state with certainty, who is in possession thereof. Kishore Chand states that accused were not called on the spot at the time of demarcation. He admits not to have issued any report pertaining to demarcation. He does not even remember the permanent points so fixed by him, while conducting demarcation in presence of police. He admits not to have prepared any Tatima. Thus, demarcation was not carried out in accordance with law. Also, exclusive possession, much less ownership that of the accused, stands not proved on record.

Chaman Singh (PW-1) states that land stood partitioned through a family partition and Khasra No. 1725 fell in the share of the accused. However, there is nothing on record to this effect. Also, deposition of this witness qua partition cannot be said to be convincing, for he does not know whether the estate was inherited by the sons, daughter and widow of the original owner. In fact, he contradicts himself by stating that "I have seen all the brothers cultivating this Khasra number jointly". Further the witness is inimical to the accused, for he admits accused Yog Raj to have deposed against him in a civil litigation. Thus, testimony of this witness cannot be relied upon, not being free from contradictions, embellishments and falsehood.

Hence, in our considered view, it cannot be said that prosecution has been able to establish, beyond reasonable doubt, the fact that the accused persons exclusively owned or possessed the fields, comprising in Khasra No. 1725, over which opium poppy is alleged to have been cultivated.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. It cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused are exclusive owners and in possession of Khasra No. 1725, over which opium poppy plants were found to be cultivated and that it were they who had cultivated the same.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

The accused 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., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.