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2015 DIGILAW 1357 (HP)

State of H. P. v. Dalip Singh

2015-09-23

P.S.RANA, SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. State has appealed against the judgment dated 10.6.2008 of the Additional Sessions Judge, Solan (Camp at Nalagarh), passed in Session Trial No.6-NL/7 of 2007/06, titled as State of Himachal Pradesh v. Dalip Singh and another, challenging the acquittal of respondents Dalip Singh and Ishwar Dutt (hereinafter referred to as the accused), who stand charged for having committed an offence, punishable under the provisions of Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. It is the case of prosecution that on 8.5.2005, a police party, headed by Inspector Kamal Kishore (PW-10), was on a traffic checking duty at Sirsa Bridge. At 6.06 p.m., they saw accused Dalip Singh coming on his scooter bearing registration No. HNA- 1390. Co-accused Ishwar Dutt was the pillion rider. Seeing the police party, Dalip Singh stopped the scooter and Ishwar Dutt fled away. On suspicion, after associating independent witnesses Shri Anil Kumar (PW-1) and Shri Ramu Sahani (PW-2), scooter was searched, from which 1.250 kgs of poppy straw was recovered. Two samples of 100 grams each were drawn. Samples as also the bulk parcel were sealed with seal of impression A. NCB form (Ex.PW-6/C) was filled up on the spot. Constable Satish Kumar (not examined) took rukka, on the basis of which FIR No.95/05, dated 8.5.2005 (Ex. PW-8/B), for commission of offence, punishable under the provisions of Section 15 of the Act, was registered at Police Station, Nalagarh, District Solan, Himachal Pradesh. The scooter and the contraband substance were seized and accused Dalip Singh arrested. At the Police Station, case property was resealed by SHO Shamsher Singh (PW-6) and deposited in the Malkhana with MHC Kamal Nain. HHC Roop Singh (PW-4) took the sealed sample to the CTL, Kandaghat. Report (Ex.PW-10/E) of the Chemical Examiner was taken on record. Special Report (Ex.PW-4/A) was also sent, which was received in the Office of Superintendent of Police, Solan. 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 were charged for having committed an offence punishable under the provisions of Section 15 of the Act, to which they did not plead guilty and claimed trial. 4. 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 were charged for having committed an offence punishable under the provisions of Section 15 of the Act, to which they did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as ten witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they pleaded innocence. 5. 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. 6. It be observed that accused Dalip Singh, who was driving the scooter from where the contraband substance was recovered, has since died. Hence, appeal qua him already stands abated. 7. We have heard Mr. Ashok Chaudhary, learned Additional Advocate General, and Mr. J.S. Guleria, Assistant Advocate General, on behalf of the State as also Mr. Rakesh Thakur, 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. 8. 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. 9. 8. 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. 9. 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." 10. We notice that independent witnesses Shri Anil Kumar and Shri Ramu Sahani have not supported the prosecution case and despite extensive cross-examination, nothing fruitful could be elicited from their testimony. Through their testimonies, two views have emerged on record. 11. They have explained that they were neither called, nor associated by the police in any search or seizure operations. In fact, Shri Ramu Sahani is illiterate. They denied having made any statement to the police or signed any document. It is not the case of prosecution that these witnesses were either won over or have sided with the accused. Their testimonies only belie the version of Inspector Kamal Kishore, of having recovered the contraband substance in their presence or on seeing the police party, accused Ishwar Dutt fled away from the spot. 12. Trial Court has correctly and completely appreciated their testimonies, both with regard to recovery of the contraband substance and the complicity of accused Ishwar Dutt. 13. 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. 14. 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. 14. 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. 15. 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. 16. 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. 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." 17. The genesis of the prosecution story does not appear to be true. Inspector Kamal Kishore records his presence on the spot being head of the police party, deputed for checking the traffic. Now, there is no Rawangi report on record. Absence thereof gains significance, rendering the prosecution case to be doubtful, since this witness does not even remember how many vehicles were checked or challaned. Further, he admits that vehicles kept on passing by, yet none was checked. Why so? he does not explain. Why is it that only the scooter in question was checked, remains unexplained. He admits not to have associated two independent witnesses of the locality. Independent witnesses associated are of distant place. Police party, according to this witness, comprised of eight persons. Any one of them could have gone to fetch independent witnesses from the nearby school or Gurudwara. It is not the case of this witness that accused Dalip Singh tried to flee away. It has also come on record that accused Ishwar Dutt was arrested on 9.5.2005. Who disclosed the identity of Ishwar Dutt, has not come on record. It is not the case of prosecution that Ishwar Dutt was known to the police officials from before or accused Dalip Singh had disclosed his identity to the police. 18. Shri Rajinder Kumar (PW-5) is another police official, in whose presence search and seizure operations were conducted. We do not find his version to be inspiring in confidence. He states that the weighing scales were kept by Inspector Kamal Kishore in his kit, which fact remains uncorroborated on record. After all, police had no prior information and Inspector Kamal Kishore does not state that he was carrying the kit with himself. Also, there is no document, corroborating version of Shri Rajinder Kumar. 19. Further, according to Inspector Kamal Kishore, the vehicle in question was owned by Shri Amarjeet Singh. After all, police had no prior information and Inspector Kamal Kishore does not state that he was carrying the kit with himself. Also, there is no document, corroborating version of Shri Rajinder Kumar. 19. Further, according to Inspector Kamal Kishore, the vehicle in question was owned by Shri Amarjeet Singh. Noticeably, the Investigating Officer, instead of querying the true owner, after a period of one month, took on record an affidavit of sale of scooter in favour of accused Dalip Singh. This one sided document would not prove sale or transfer of the vehicle in favour of the accused. When was the vehicle sold? What was the sale consideration? Why steps for registering change of ownership not taken? remain unexplained on record. Complicity of the owner has not been ruled out. 20. We may also observe that Shri Satish Kumar, who took the rukka to the Police Station, has not been examined. Whether after registration of the FIR, he took the file to the spot or not, remains unexplained. This acquires significance, as we find the number of the FIR to be written in the same flow. It appears that the document were prepared at the Police Station. 21. Thus, we do not find testimony of the police officials to be inspiring in confidence. 22. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence charged for. 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. 23. 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 were found in conscious and exclusive possession of poppy straw. 24. 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. 25. 24. 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. 25. The accused have 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.