Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1495 (HP)

State Of Himachal Pradesh v. Jogi Ram

2015-10-13

PIAR SINGH RANA, SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 17.09.2008, passed by Special Judge, Kullu, H.P., in Sessions Trial No. 21/07, titled as State Versus Jogi Ram, whereby accused stands acquitted, 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 17.12.2006, police party comprising of Kishori Lal (PW.1), Gangbir Singh (PW.2), Ram Krishan (not examined), headed by Hem Raj (PW.3) were on patrol duty at Gamon Bridge. At about 4.30 AM, accused, who was coming from Rama Bai side, seeing the police party, tried to flee away. However, on suspicion, he was apprehended. Suspecting that he may be possessing some contraband substance, after associating Kishori Lal (PW.1) and Gangbir Singh (PW.2) as witnesses, accused, who was informed of h is statutory right and after obtaining his consent (Ex.PW.2/A), was searched. From the polythene bag, so carried by him, 1 kg of charas was recovered. Two samples of 25 grams each were drawn. Sample as also the bulk parcel were sealed with seal having impression 'A' and taken into possession vide recovery memo (Ex.PW.2/D). NCB form (Ex.PW.3/A) was filled up. Rukka (Ex.PW.3/B) was carried by Constable Kishori Lal (PW.1) to Police Station, Kullu, on the basis of which SI Mahinder Kumar (PW.7) registered FIR No. 664 of 2006, dated 17.12.2006 (Ex.PW.7/A), under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) against the accused. File was taken back to the spot. Whereafter proceedings were completed. Contraband substance was resealed by SI Mahinder Kumar (PW.7) and deposited with MHC Rup Singh (PW.8), who made entry of the same in the Malkhana register. Rup Singh sent the sample through Constable Tabe Ram (PW.5) for chemical analysis to CFSL, Chandigarh, report (Ex.PA) thereof obtained by the police. Special report (Ex.PW.6/A) was personally handed over by Hem Raj (PW.3) to the Deputy Superintendent of Police. 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. The accused was charged for having committed an offence punishable under the provisions of Sections 20 of the NDPS Act, to which he 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. The accused was charged for having committed an offence punishable under the provisions of Sections 20 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 eight witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took defence of innocence and false implication. No evidence in defence was led. 5. Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal. 6. We have heard M/s. Ashok Chaudhary, V.S. Chauhan, learned Additional Advocate Generals, assisted by Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. Ajay 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. 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 the essential ingredients so required to constitute the charged offence. 8. In Prandas Vs. 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 and Others vs. The King-Emperor 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." 9. In the instant case no independent witnesses were associated by the police. 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. 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. 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. 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. Such reliable and trustworthy statement can form the basis of conviction. "[See: Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760 ; Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) and Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) ]." 13. Apex Court in Sheo Swarup and Others vs. The King-Emperor AIR 1934 227 (Privy Council), 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. The genesis of the prosecution story of recovery of the contraband substance from the conscious and exclusive possession of the accused is rendered doubtful from the perusal of documents (Ex.PW.2/A, Ex.PW.2/B & Ex.PW.2/D). Document (Ex.PW.2/D) is the recovery memo, whereby recovery of charas from the conscious possession of the accused is stated to have been effected. Prior to recovery, as is so admitted by Kishori Lal (PW.1), Gangbir Singh (PW.2) and Mahinder Kumar (PW.7), police had no prior intimation that the accused was either dealing with or carrying psychotropic substance. If that be so, then reference of Section 20 of the NDPS Act in the memos (Ex.PW.2/A & Ex.PW.2/B) being the consent memo and memo of search of police officials, is misplaced. Bare perusal of these documents as also Ex.DA and Ex.DB only establishes that documents were prepared in one go and perhaps at the Police Station, most certainly not on the spot. 15. Gangbir Singh (PW.2) admits that signatures on the documents, of the Incharge, were obtained later on and carbon copies also prepared. Bare perusal of these documents as also Ex.DA and Ex.DB only establishes that documents were prepared in one go and perhaps at the Police Station, most certainly not on the spot. 15. Gangbir Singh (PW.2) admits that signatures on the documents, of the Incharge, were obtained later on and carbon copies also prepared. Why so? has not been explained. Further according to him, sample was not made homogeneous. In fact, we are not sure of his presence on the spot, for he does not remember having counted the sticks or the sample having been made homogeneous. 16. We further find that police party failed to associate independent witnesses while carrying out search and seizure operations. It is not a case of chance recovery, in the sense that police officials were searching the bag of the accused and found charas. Accused was apprehended and only after obtaining his consent vide memo (Ex.PW.2/A), searched. ASI Hem Raj (PW.3) admits that at the time of search and seizure operations vehicles were plying. Also it has come on record that area in question was inhabited, yet no serious endeavour was made to associate any independent witness. 17. Also there are contradictions in the statements of Kishori Lal (PW.1), Gangbir Singh (PW.2) and Hem Raj (PW.3) with regard to the exact spot, where the accused was apprehended and searched. According to Kishori Lal, proceedings were conducted on the spot, the place where accused was apprehended. Whereas, according to Gangbir Singh, they were carried out in the verandah of the temple and Hem Raj is silent on this aspect. Proceedings were conducted in the early hours of the morning. None has disclosed as to how in the darkness, memos could have been prepared on the spot, for it is not the case of prosecution that police party was having any vehicle or a torch. Further there is nothing on record to establish as to how the Constable took the Rukka to the Police Station and returned to the spot, carrying the file. 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 police officials are glaring, material and relevant, totally shaking the edifice of prosecution story. 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 police officials are glaring, material and relevant, totally shaking the edifice of prosecution story. Witnesses are unreliable and their testimonies not free from embellishments/contradictions/variations. 19. 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. 20. 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 Sheo Swarup and Others vs. The King-Emperor AIR 1934 227 (Privy Council), 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 application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.