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2014 DIGILAW 1154 (HP)

State of Himachal Pradesh v. Jasvinder Singh

2014-08-28

P.S.RANA, SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 18.07.2008, passed by learned Special Judge, Kullu, H.P., in Sessions Trial No.1/06, titled as State v. Jasvinder Singh, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 01.01.2005, Head Constable Ranjeet Singh (PW.3) along with Constables Deepak Kumar (PW.1), Netar Singh (PW.2) and other police officials, was on patrol duty at Dhalpur Chowk. At about 01.15 AM (mid night), seeing the police party, accused who was coming from Circuit House side got perplexed and tried to flee away. Police officials saw him throw his handkerchief which he had taken out from the pocket of his pants. Ranjeet Singh (PW.3) after covering some distance apprehended him. Since no independent witness was present on the spot, Ranjeet Singh, by associating Constable Netar Singh (PW.2) and Head Constable Jai Krishan (not examined) conducted further investigation. Handkerchief thrown by the accused was picked up, its knot opened. Smack was found therein. Upon weighment it was found to be 9.5 grams. Two samples of one gram each were separated and sealed with four seals of seal impression 'T'. Likewise remaining parcel (Ex.P-1) was sealed. NCB form (Ex.PW.3/B) was filled on the spot. Case property was seized vide seizure memo (Ex.PW.2/A). On the basis of Rukka (Ex.PW.1/A) carried by Constable Deepak Kumar, FIR No.1/05, dated 01.01.2005 (Ex.PW.7/A) was registered at Police Station, Kullu, District Kullu, H.P., by Inspector Badri Singh (PW.7) under the provisions of Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). File was taken back to the spot. With the completion of all formalities on the spot, Ranjeet Singh (PW.3) deposited the case property with Inspector Badri Singh (PW.7), who resealed the sealed parcels with his seal impression 'H'. The same was deposited with Head Constable Roop Singh (PW.5) and entry made in the malkhana register (Ex.PW.5/A). Sealed sample was taken for chemical analysis by Constable Bhader Singh (PW.4) who deposited the same at the Central Forensic Science Laboratory, Chandigarh. Report (Ex.PW.3/G) was taken on record by the police. With the completion of investigation, which revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial. 3. Sealed sample was taken for chemical analysis by Constable Bhader Singh (PW.4) who deposited the same at the Central Forensic Science Laboratory, Chandigarh. Report (Ex.PW.3/G) was taken on record by the police. With the completion of investigation, which revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under the provisions of Section 21 of the NDPS Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as seven witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up the following defence:- "I am innocent and has not committed any offence. During that night I was present at Dhalpur chowk to celebrate new year. I was sitting around 2.00 a.m. out side a hotel at Dhalpur some local persons namely Rajinder Kumar, Premi and Raju were also occupying another table there. I have consumed liquor. They were also consuming liquor. There were outsider and also local persons at Dhalpur chowk. Some quarrel took place between the outsiders and local persons and as such police came to disperse the crowd. It is nearby table where I was sitting where one polythene packet was found lying. The same was picked up by the police. The persons hereinabove were asked as to whom that polythene packet belonged, however, they expressed their ignorance. I was also asked about that bag and I told that the same was not of mine but of no avail and I was apprehended by the police on suspicion being an outsider and this case has been falsely registered against me." The accused also examined one witness Raj Kumar (DW.1) in his defence. 5. Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal. 6. Having heard learned counsel for the parties as also perused the record, we are of the considered view that no case for interference is made out in the present appeal. 7. 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 heard learned counsel for the parties as also perused the record, we are of the considered view that no case for interference is made out in the present appeal. 7. 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. 8. In Prandas v. The State, AIR 1954 SC 36 , 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 Section 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 Section 417, Criminal Procedure Code in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), 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 recognised in the administration of justice."" 9. Close scrutiny of testimonies of relevant prosecution witnesses (PW.1 to PW.3) would only render them to be uninspiring in confidence. There are contradictions which are material. Their version absolutely knocks down the prosecution case rendering it to be doubtful, if not false. We find non association of independent witness, in the instant case, to be absolutely fatal. 10. 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 over zealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness. 11. 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. 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. 12. 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 alias Govinda v. State by Srirampuram Police Station and another, (2012) 4 SCC 722 ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad v. State of M.P., (2007) 7 SCC 625 ); and Aher Raja Khima v. State of Saurashtra, AIR 1956 (SC) 217 ]. 13. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338 , 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." 14. Noticeably alleged crime took place in the heart of Kullu town. Noticeably alleged crime took place in the heart of Kullu town. Dhalpur chowk is in the heart of the town and Police Station is also close by. The alleged incident took place in the night intervening 31.12.2004 and 01.01.2005. Version of PW.3 that no independent witnesses were available on the spot is uninspiring in confidence as new year's eve celebrations generally go on throughout the night. That apart, police party could have taken the accused to the Police Station or made efforts to call residents from the close by locality, but no efforts were made in that regard. Incident took place at 1.15 AM (midnight). Also we find version of PW.3 to have been contradicted and belied by PW.1, who states that "it is correct that people were present at Dhalpur chowk till morning and playing with crackers and also enjoying with other modes of enjoyment." Witness further admits that English wine and liquor shops as also 3-4 dhabas are there at Dhalpur chowk. 15. That apart, there is yet another major contradiction in the testimony of police officials. According to Ranjeet Singh (PW.3), all proceedings, including recording of statements of witnesses, took place on the spot. He states that Rukka (Ex.PW.1/A) was prepared by Constable Netar Singh (PW.2) and Deepak Kumar wrote his own statement Mark 'C', which version stands belied by Netar Singh, according to whom, Rukka was reduced into writing by Ranjeet Singh (PW.3). However, according to Netar Singh as also Deepak Kumar, Rukka and statements respectively were written by Ranjeet Singh and not by them. 16. Further Constable Netar Singh (PW.2) states that a sum of Rs. 3,035/-, a bus ticket and purse were recovered by the police which fact is not so disclosed by Head Constable Ranjeet Singh (PW.3). 17. There is yet another glaring illegality in the present case. According to Constable Bhader Singh (PW.4), on 02.01.2005, he took sample to be deposited at the CFSL Chandigarh. Undisputedly sample was deposited with the Laboratory on 05.01.2005. PW.5 tried to explain the delay in depositing the sample with the Laboratory. Three days delay is explainable. According to Roop Singh (PW.5) certain oral objections were raised by the Laboratory at Chandigarh and as such, sample was brought back by Bhader Singh. After removal of objections the same was again sent to the very same Laboratory. PW.5 tried to explain the delay in depositing the sample with the Laboratory. Three days delay is explainable. According to Roop Singh (PW.5) certain oral objections were raised by the Laboratory at Chandigarh and as such, sample was brought back by Bhader Singh. After removal of objections the same was again sent to the very same Laboratory. But significantly there is neither any reference of such fact in the road certificate nor in the malkhana register so produced on record. Concoctions are manifold. 18. 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. 19. The improbabilities, contradictions, improvements and discrepancies in the prosecution case coupled with the testimony of witnesses to be absolutely shaky and unreliable no interference is warranted. 20. 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. 21. 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 Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , 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 applications, if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back. Appeal dismissed.