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2015 DIGILAW 1096 (HP)

State of H. P. v. Satish Kumar

2015-08-13

P.S.RANA, SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. 1. State has appealed against the judgment dated 5.7.2008, passed by the Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Himachal Pradesh, in N.D.P.S. Case No.6 of 2004, titled as State of Himachal Pradesh v. Satish Kumar, challenging the acquittal of accused-respondent Satish Kumar (hereinafter referred to as the accused) of the offence, punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. It is the case of prosecution that on 17.4.2004, SI Daya Sagar (Pw-6), along with Constable Tikkam Singh (PW-1), HHC Guddu Brahamchari, Constable Ramesh Chand, Constable Mohar Singh (PW- 5), HHC Hans Raj and Constable Devinder Singh, was on patrol duty at a place known as Thance Mor. At 6.30 a.m., they noticed the accused, carrying a bag, coming from Tikkri Kainchi side towards Nirmand. On seeing the police party, he got nervous and tried to flee away. On suspicion, he was apprehended and apprised of his right of being searched before a Magistrate of Gazetted Officer, but however he consented to be searched by the police party present on the spot, vide consent Memo (Ex. PW-1/A). On search of the bag, a polythene bag, containing Charas, weighing 1 kg was recovered. Two samples, each weighing 25 grams, were drawn. Samples and the bulk parcel were sealed separately with seal of impression 'T'. NCB form (Ex.PW-6/E) was filled up, in triplicate, on the spot. Rukka (Ex.PW-6/A) was sent through Constable Mohar Singh, on the basis of which FIR No.32/04, dated 17.4.2004 (Ex.PW-4/A), for commission of offence, punishable under the provisions of Section 20 of the Act, was registered at Police Station, Nirmand, District Kullu, Himachal Pradesh. Special report (Ex.PW-2/A) was also sent to the Deputy Superintendent of Police, Anr. With the completion of proceedings on the spot, the case property was handed over to MHC Amar Singh (PW-4), who sent the sealed sample, through Constable Jiwa Nand (PW-3), for Chemical Examination to the CTL, Kandaghat. Report (Ex.PW-6/F) of the Chemical Examiner was taken on record. 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. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 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. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as seven witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took defence of innocence and false implication. 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. Kush Sharma, learned Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General, on behalf of the State as also Ms. Komal Chaudhary, learned counsel appearing 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. 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. It is the case of the accused that he stands falsely implicated by the police officials, as the Investigating Officer wanted to be awarded, enhancing his chances of promotion. The quantity involved, in the instant case, is 1 kg. The defence stands probablized, inasmuch as the recoveries were effected in both the cases, on the very same date and by the very same Investigating Officer. 10. Undisputedly, in the instant case, prosecution has not associated any independent witness. So, the prosecution case depends upon the testimony of the police officials. 11. The defence stands probablized, inasmuch as the recoveries were effected in both the cases, on the very same date and by the very same Investigating Officer. 10. Undisputedly, in the instant case, prosecution has not associated any independent witness. So, the prosecution case depends upon the testimony of the police officials. 11. 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 over-zealousness 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. 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. [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 87 ]. 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 examine the testimonies of police officials present on the spot. 16. In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot. 16. According to SI Daya Sagar, recovery was effected on 17.4.2004 at about 6.30 a.m. This was when the police party, comprising of Constables Tikkam Singh, Mohar Singh and other police officials and headed by SI Daya Sagar (PW-6), saw the accused in suspicious circumstances at Thance Mor. At that time, police party was on patrol duty. Accused had hidden 1 kgs of Charas in his bag. Prior to the search of the bag, consent of the accused was obtained and the recovered contraband substance was weighed with the scales and weights kept in the IO Kit. 17. It has come in the testimony of Constable Tikkam Singh that village Thance was just 300 metres away from the spot and the Investigating Officer made no effort to associate any independent witnesses for carrying out search and seizure operations. Why so" remains unexplained. Place of recovery is a road and the police could have conveniently associated independent witnesses, more so, on suspicion, when the accused was apprehended. 18. Conjoint reading of testimonies of police officials, i.e. Constables Tikkam Singh, Mohar Singh and SI Daya Sagar, reveals major contradictions, improbabilities and embellishments, rendering their version to be absolutely shaky and the witnesses to be wholly unreliable. 19. Constable Tikkam Singh states that the accused never attempted to throw any bag so carried by him. Accused was travelling in a vehicle and had enough time to get rid of the bag, which he chose not to do so. 20. Contradictions in the testimony of the witnesses, with regard to nearby habitation, have emerged on record. SI Daya Sagar denies such fact, through the documents prepared by him, which stands admitted by Constables Tikkam Singh and Mohar Singh. 21. Even with regard to the filling up of the NCB form, as has been observed by the trial Court (Para- 21), there is doubt, with regard to the version, which the Investigating Officer wants the Court to believe. Further, in documents (Ex.PW-1/D & 1/E), Police Station, Banjar is mentioned, which remains unexplained. The police officials did not belong to Police Station, Banjar. 22. Even by way of link evidence, we do not find the prosecution case to have been established, beyond reasonable doubt. Sample seal 'T' has not been produced on record. Further, in documents (Ex.PW-1/D & 1/E), Police Station, Banjar is mentioned, which remains unexplained. The police officials did not belong to Police Station, Banjar. 22. Even by way of link evidence, we do not find the prosecution case to have been established, beyond reasonable doubt. Sample seal 'T' has not been produced on record. Constable Jiwa Nand, who took the sample for analysis to the CTL, Kandaghat, states that he had also taken another sample, in connection with another FIR, bearing the same seal 'T'. Significantly, he admits that NCB form (Ex.PW-6/E) was not sealed. In fact, the same was not even kept in any envelope. Thus, the sample as also the documents being tampered with and interpolated cannot be ruled out. What is crucial is the admission on the part of MHC Amar Singh that Constable Jiwa Nand had carried another sample, in connection with FIR No.33 of 2004, bearing the same seal impression 'T'. Now significantly, this FIR records the quantity of Charas recovered to be 10 kgs; whereas SI Daya Sagar (PW-6) states it to be of 11 kgs. 23. From the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he has been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same. Evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. 24. Hence, 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 Charas. 25. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties. 26. The accused has had the advantage of having been acquitted by the Court below. 25. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties. 26. 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 v. 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 applications, if any. Appeal dismissed.