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Himachal Pradesh High Court · body

2014 DIGILAW 1244 (HP)

State of H. P. v. Babu Ram

2014-09-11

P.S.RANA, SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J. State has appealed against the judgment dated 18.9.2006 of the learned Special Judge, Fast Track, Kullu, District Kullu, Himachal Pradesh, passed in Sessions Trial No.5 of 2005, titled as State v. Babu Ram, challenging the acquittal of respondent Babu Ram (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. It is the case of prosecution that SI Dorje Ram (PW-5) alongwith Constable Partap Singh (PW-3), Constable Mehar Chand ((PW-4) and HC Narain Singh (not examined), left Police Station, Kullu on patrol duty and detection of crime. At about 12.30 a.m., police party laid Naka on a footpath, between Jai Nallah and Rasol Bridge. The footpath leads to Rasol Bridge constructed over Parbati River. On 25.8.2004 at about 3.15 a.m., accused was seen walking in a torch light carrying a sack. He was coming from the side of Rasol Bridge. In the flash of a torch light, police party saw the accused and stopped him. On query, accused disclosed that he was carrying Charas in the sack. Mehar Chand (PW-4), who was asked to search for independent witnesses, returned after 20 minutes, as Sadhus, who were present in the nearby temple, refused to associate themselves as witnesses. Consequently, after associating police officials Mehar Chand (PW-4) and Narain Singh (not examined) as witnesses, Dorje Ram (PW-5) searched the sack, from which Charas, in the shape of Chapattis, Tikkis and Battis, was recovered. The same was weighed and found to be 12.5 kgs. Two samples, each weighing 25 grams, were drawn. Sample parcels as also bulk parcel were sealed with six seals of impression ‘T’. Sample seals, four in number, were prepared. Column No.8 of the NCB form, in triplicate, was filled up by Dorje Ram. Seal after use was handed over to Narain Singh. Ruka (Ex.PW-5/B) was sent through Constable Partap Singh (PW-3) to Police Station, Kullu, where FIR No.408, dated 25.8.2004 (Ex. PW- 6/A), under the provisions of Section 20 of the NDPS Act, was registered. Partap Singh (PW-3) took the case file and handed it over to Dorje Ram. Accused was arrested on the spot and number of the FIR was recorded on all the documents so prepared on the spot. PW- 6/A), under the provisions of Section 20 of the NDPS Act, was registered. Partap Singh (PW-3) took the case file and handed it over to Dorje Ram. Accused was arrested on the spot and number of the FIR was recorded on all the documents so prepared on the spot. Thereafter, police party proceeded to the Police Station and handed over the case property to SHO Badri Singh (PW-6), who resealed the samples as also the bulk parcel with his seal impression ‘K’ (three in number). He also filled up Column Nos.9 to 11 of the NCB form. Thereafter he deposited the case property, including the NCB forms and the sample seals, with MHC Rup Singh (PW-1). On 25.8.2004, Rup Singh (PW-1) sent one sample through Constable Partap Singh (PW-3) which was deposited at CTL Kandaghat, vide Road Certificate (Ex. PW-1/D) on 26.8.2004. Report (Ex. PA) of the Chemical Analyst, which revealed the sample to be Charas, was obtained by the police and taken on record. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the NDPS Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as six witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded innocence and false implication. He also examined two witnesses in his defence. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State. 6. We have heard Mr. Ashok Chaudhary, learned Additional Advocate General, on behalf of the State as also Mr. Sanjeev Kuthiala, 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. 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. 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 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 – ‘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. 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.” ” 9. Having minutely perused the testimonies of prosecution witnesses, we find no reason to interfere with the impugned judgment. Testimonies of prosecution witnesses cannot be said to be inspiring in confidence. There are contradictions, material in nature, impeaching credit of the witnesses, rendering them to be unreliable and unbelievable. 10. In the instant case, we find that two witnesses i.e. Narain Singh and driver of the vehicle in which the police party went to the spot have not been examined in Court. Their examination was absolutely necessary, in view of material contradictions, which have emerged on record, which we shall discuss herein after. Also, explanation for non-association of independent witnesses cannot be said to be convincing or inspiring in confidence. 11. There is no independent witness. 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. 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. 12. 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. 13. 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. 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]. 14. 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." 15. In view of the aforesaid statement of law, we shall now discuss the testimonies of police officials present on the spot, which we must state, on examination, we find to be absolutely uninspiring in confidence. 16. SI Dorje Ram (PW-5) admits that documents pertaining to search and seizure operations were scribed, under his instructions, by members of the police party, out of which only three have been examined in Court. Witness to recovery of the contraband substance is Mehar Chand (PW-4) and Narain Singh (not examined). Testimony of Mehar Chand (PW-4), as we shall discuss herein later, does not inspire confidence. Under these circumstances, non-examination of Narain Singh as also driver of the vehicle in which the police party proceeded to the spot acquires significance. 17. We find genesis of prosecution story of having left the Police Station in the late hours of night and having set up a Naka in the night intervening 24.8.2004 and 25.8.2004, not to be inspiring in confidence at all. 17. We find genesis of prosecution story of having left the Police Station in the late hours of night and having set up a Naka in the night intervening 24.8.2004 and 25.8.2004, not to be inspiring in confidence at all. This we say so for the contradictions/improbabilities/ variations/discrepancies in the testimonies of police officials, namely Partap Singh (PW-3), Mehar Chand (PW- 4) and Dorje Ram (PW-5). According to Dorje Ram (PW- 5), he left Police Station, Kullu alongwith Narain Singh, Constable Partap Singh and Constable Mehar Chand in a Police vehicle driven by Tej Ram. Police party left on 24.8.2004 at 10.15 p.m. The purpose was “patrolling and detection of crime towards Manikaran side”. Now, there is nothing on record to establish departure of the police party from the Police Station. What was the crime, which was sought to be detected towards Manikaran side, has not been disclosed. Now, if crime was to be detected at Manikaran side then why is it that police laid a Naka and that too on a foot path, at an isolated place between Jai Nallah and Rasol Bridge. This fact has not been disclosed. It is not the prosecution case that they had any prior intimation of drug trafficking and as such had set up a Naka at that point. How far was the Naka from the road, where the vehicle was parked, has not been disclosed by the prosecution. 18. Further, Rup Singh (PW-1) admits that Daily Diary does not record either the departure or arrival of the vehicle allegedly taken for patrol duty. Also, he could not state as to whether Tej Ram was posted as a driver at Police Station, Banjar or not. Thus, who took the police party in the vehicle remains unexplained and unestablished. The genesis of the prosecution story is thus rendered to be shaky and doubtful. 19. Partap Singh (PW-3) could not state as to whether there was any temple at a distance of 200-250 metres towards Manikaran side or not. He states not to have seen Katagla or Kalaith Bridge or for that matter Katagla village. It has nowhere come that Katagla Bridge is near Kasol. According to Mehar Chand (PW-4), Naka was laid at a place which is 100 metres behind Kasol Bridge. But then he does not know the distance between Kasol Bridge and Jai Nallah. He states not to have seen Katagla or Kalaith Bridge or for that matter Katagla village. It has nowhere come that Katagla Bridge is near Kasol. According to Mehar Chand (PW-4), Naka was laid at a place which is 100 metres behind Kasol Bridge. But then he does not know the distance between Kasol Bridge and Jai Nallah. He has not even seen village Rasol and does not know the distance between village Rasol and Parbati River. He has not even seen Katagal or Kalaith Bridge. Was he really a member of the Police Party? It does not appear so. 20. Also, testimony of this witness belies version of Dorje Ram (PW-5), according to whom Naka was laid between Jai Nallah and Rasol Bridge, which is constructed over Parbati River. Thus, there is major discrepancy, variation or contradiction with regard to the place of recovery of Charas, rendering the prosecution case to be doubtful, if not false. 21. In the instant case, it has come on record through the testimony of Dorje Ram (PW-5) that a temple where Sadhus were residing was just at a distance of 150 metres. Also, village Katagla was just at a distance of 500 to 600 metres from the place where Naka had been set up. Dorje Ram admits that from the place where Naka was set up, he brought the accused alongwith the sack containing Charas, to the vehicle. The reason being that it had started to drizzle. Now, if search and seizure operations were not carried out on the spot i.e. the place of Naka, where he came to know that the sack contained Charas, then why is it that he did not deem it appropriate to take the accused either directly to the Police Station or the place where Sadhus were sleeping or the nearby village. Undisputedly, in the instant case no independent witness was associated for carrying out the search and seizure operations. By the time Dorje Ram brought the accused to the vehicle parked on the road he knew that Sadhus sleeping in the closeby temple had refused to associate themselves as witnesses. Under these circumstances, he could have conveniently driven the vehicle to the nearest place of habitation to associate independent witnesses. 22. By the time Dorje Ram brought the accused to the vehicle parked on the road he knew that Sadhus sleeping in the closeby temple had refused to associate themselves as witnesses. Under these circumstances, he could have conveniently driven the vehicle to the nearest place of habitation to associate independent witnesses. 22. What further renders the prosecution case to be doubtful is the version of Mehar Chand (PW-4) and Dorje Ram (PW-5), on the point of non-association of independent witnesses. According to Mehar Chand, on the asking of Dorje Ram he went to the nearby temple and despite his request, 2-3 Sadhus present there refused to associate themselves as witnesses. As such, he returned and informed Dorje Ram about the same. We do not find his version to be trustworthy, which in fact is self contradictory, for he could not state the exact number of Sadhus, who were sleeping and also clarifies to have spoken only with one Sadhu, whose name also he does not remember. Be that as it may, why is it that then Dorje Ram did not take the contraband substance to the Police Station or nearby village for carrying out search and seizure operations, instead of choosing to associate PW-4 and Narain Singh as witnesses for such purpose. It is not that police party had any threat from the accused or apprehension of his fleeing away from the spot. Also Dorje Ram (PW-5) admits not to have taken any action against the Sadhus for their refusal to be associated as witnesses. 23. Still further, Dorje Ram (PW-5) states that there were 3-4 Sadhus who had refused to associate themselves as witnesses but admits that “he had no talk with those Sadhus”. Then on what basis does he depose such fact. If Mehar Chand had spoken with only one Sadhu then how could Dorje Ram depose that 3-4 Sadhus had expressed their unwillingness to be associated as witnesses. Thus, either of the witnesses has deposed falsely. Further, Dorje Ram (PW-5) did not make any inquiry about the Sadhus or the place of temple or the name of Pujari. It is not that Dorje Ram was not aware of the temple. He admits to have seen it for the last 2-3 years. 24. There is yet another unexplained circumstance. Dorje Ram (PW-5) does not state from where he got the scales or the weights. It is not that Dorje Ram was not aware of the temple. He admits to have seen it for the last 2-3 years. 24. There is yet another unexplained circumstance. Dorje Ram (PW-5) does not state from where he got the scales or the weights. According to him, upon weighment, Charas was found to be 12.5 kgs, which was packed in a sack (Ex. P-3). Now, it is not the proven case that police party was carrying the IO Kit. 25. Further, we find there is discrepancy in the testimonies of Partap Singh (PW-3), Mehar Chand (PW-4) and Dorje Ram (PW-5), with regard to the form of the contraband substance. According to PW-3 accused was carrying a white coloured bag from which Charas wrapped in a polythene envelope was recovered. He is silent with regard to the form of Charas. PW-4 states that Charas was in the shape of Chappatis, Tikkis and Battis, which version is contradicted by PW-5, according to whom it was in the shape of Chappatis and sticks. 26. Noticeably, there is discrepancy with regard to the number of samples of seal impression ‘T’. PW-5 states that four sample seals of seal impression ‘T’ were prepared whereas according to Rup Singh (PW-1) and Partap Singh (PW-3) only one such sample was prepared. Also, PW-5 states that sample seal was handed over to Narain Singh, who remains unexamined in Court. 27. Contradiction with regard to sample seal acquires significance when we further examine the prosecution case on the point of link evidence. 28. While recording statement of Mehar Chand (PW-4), trial Court observed that :- “(At this stage the learned P.P. has produced parcel Ex. P-1 (larger) and has put forth a request that the same may be allowed to be opened by him in order to get the case property identified from the witnesses. The sealed parcel is containing two seal impressions of seal K and 3 seal impressions of seal T which are intact. Two seal impressions are partially broken and the seal impressions are nto visible. There are signs of two seal impressions but neither there is vax nor seal impressions but it appears from the parcel that same is fully stitched on and has not been tampered with in any manner. Hence allowed to be opened. Two seal impressions are partially broken and the seal impressions are nto visible. There are signs of two seal impressions but neither there is vax nor seal impressions but it appears from the parcel that same is fully stitched on and has not been tampered with in any manner. Hence allowed to be opened. It is found t o contain sack and charas in the shape of Chapati Tikki and Baties.” (Emphasis supplied) 29. This observation of the Court totally knocks down the prosecution case, rendering the testimony of Dorje Ram (PW-5) to be unbelievable, according to whom, he had affixed six seal impressions of impression ‘T’ on each parcel. Significantly, Court observed that the parcel produced was having three seal impressions of seal ‘T’. Further report of CTL does not record that sample of the seal was received or tallied, though it is so recorded in the Road Certificate (Ex. PW-1/D) that three seals of impression ‘K’ were sent but whether they were handed over or not remains unexplained and proven on record. 30. According to Dorje Ram (PW-5), four samples of seal impression ‘T’ were prepared. Sample seal was handed over by him to Narain Singh who has not been examined in Court. Why so? has not been explained. In view of weak evidence on the point of link evidence, it became incumbent upon the prosecution to have examined the witness and produce the sample seal in Court. Absence thereof has seriously prejudiced the accused as major link of evidence stands concealed. 31. Be that as it may, Dorje Ram states that he handed over the case property alongwith the sample seals to Badri Singh (PW-6), who in turn states that he deposited the same with Rup Singh (PW-1). In Court PW-1 states that he received only two seal samples but in the Road Certificate there is mention of three seals and as per the record only one sample was deposited with the CTL. Significantly, in the report of the expert, it is not so recorded that seal on the sample was compared with the sample seal. This is to be seen in the backdrop of contradiction pertaining to the number of seals affixed on the samples and the observation made by the trial Court with regard to the broken seals on the contraband substance. Link evidence is not complete. This is to be seen in the backdrop of contradiction pertaining to the number of seals affixed on the samples and the observation made by the trial Court with regard to the broken seals on the contraband substance. Link evidence is not complete. Most importantly, bulk parcel produced in the Court was having broken seals for which no explanation is forthcoming. This has caused serious apprehension and doubt about the factum of search and seizure of the contraband substance from the conscious possession of the accused. 32. Also identity of the seized contraband substance produced in the Court itself is in doubt. Dorje Ram had also raided the video parlour of the accused at a place known as Jari. This was on 26.8.2004 when an unclaimed sack (Ex. P-3) was recovered. While exhibiting this parcel in Court there is no typographical error. Now if Ex. P-3 was recovered at the time when video parlour was raided, then how is it that the sack having same exhibit was recovered on 25.8.2004. Rup Singh (PW-1) admits that alongwith the sample in question he had also sent samples of other cases to the laboratory. Hence, possibility of the samples being mixed up cannot be ruled out, particularly when Partap Singh (PW-3) states that only one sample seal was prepared on the spot. 33. There is yet another contradiction on record. According to Dorje Ram (PW-5), he gave his personal search to the accused whereas according to Mehar Chand (PW-4) same was given to Narain Singh, the person who scribed such memo has not been examined in Court. 34. The testimonies of prosecution witnesses are uninspiring in confidence. No reasonable explanation for non-association of independent witness is forthcoming. Also, link evidence is weak. As such, 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 was found in conscious and exclusive possession of 12.5 kgs of Charas. 35. 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. 36. The accused has had the advantage of having been acquitted by the Court below. 35. 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. 36. 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 Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , 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.