Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1513 (HP)

State of Himachal Pradesh v. Mujmil Khan

2015-10-14

P.S.RANA, SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. State has appealed against the judgment dated 4.8.2008, passed by the Special Judge, Kullu, District Kullu, Himchal Pradesh, in Sessions Trial No. 46/2006, titled as State v. Mujmil Khan, whereby accused-respondent Mujmil Khan, hereinafter referred to as the accused, stands acquitted of the offence, punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1984 (hereinafter referred to as the Act). 2. It is the case of prosecution that on 25.2.2006, police party, headed by HC Bhagat Ram (PW-3) and comprising of Constable Janesh Kumar (PW-1), was present at Sabzi Mandi Bazaar, Bhuntar, when it noticed the accused, carrying two bags, who on suspicion was stopped. Constable Janesh Kumar was sent in search of independent witnesses, who returned with Shri Jog Raj (PW-2) and Shri Manghru Ram (PW-3) and in their presence search of the bags was conducted. From one of the bags, Charas kept in gloves was found, which on weighment was found to be 200 grams. Two samples, each weighing 25 grams, were drawn and thereafter the samples and the bulk charas were separately sealed with three seals of seal impression 'T' and taken into possession vide Memo (Ex.PW-2/C). NCB form (Ex.PW-4/A), in triplicate, was filled up on the spot. Ruka (Ex.PW-1/B) was sent through Constable Janesh Kumar, on the basis of which FIR No.68, dated 25.2.2006 (Ex.PW-9/A), for commission of offence, punishable under the provisions of Section 20 of the Act, was registered at Police Station, Sadar, District Kullu, Himachal Pradesh. With the completion of proceedings on the spot, the case property was produced before SI Joginder Singh (PW-9), who resealed the same with his own seal of impression 'X' and handed it over to MHC Roop Singh (PW-7). Sealed sample was sent through HHC Jai Kishan (PW-8) to the CTL, Kandaghat for chemical examination and report (Ex. PA) 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. 4. PA) 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. 4. In order to establish its case, prosecution examined as many as nine 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, 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 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. In the instant case, independent witnesses, namely Shri Jog Raj and Shri Manghru Ram have not supported the prosecution case. They were declared hostile and extensively cross-examined, but nothing fruitful could be elicited from their testimonies. Shri Manghru Ram has studied only upto 5th standard and Shri Jog Raj is a tea-stall vendor, who has explained that HC Bhagat Ram used to visit his tea-stall and on the asking of the police documents were signed by him, though no search and seizure operations were carried out in his presence. 10. Now, this leaves us with the testimonies of the police officials. 11. 10. Now, this leaves us with the testimonies 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. 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. 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) 217 ]. 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. HC Bhagat Ram and Constable Janesh Kumar, who allegedly conducted the search and seizure operations. Conjoint reading of their testimonies only reveals them to be shaky and the witnesses not reliable. In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot. 16. HC Bhagat Ram and Constable Janesh Kumar, who allegedly conducted the search and seizure operations. Conjoint reading of their testimonies only reveals them to be shaky and the witnesses not reliable. HC Bhagat Ram states that he did not know Shri Jog Raj from before, which version stands belied and contradicted by Jog Raj, who was not cross-examined on this aspect. Prosecution story that it took half an hour to carry out the search and seizure operations, stands contradicted by Constable Janesh Kumar, who in fact carried the rukka at 3 p.m. and returned to the spot at 5 p.m. Thus, the police party ought to have stayed on the spot for more than two hours. 17. Even by way of link evidence, we do not find the prosecution case to have been established, beyond reasonable doubt. MHC Roop Singh, who allegedly sent the sample for chemical analysis, in his cross-examination, states as under: "I am posted as M.H.C. in P.S. Sadar Kullu since Oct. 2003. I have brought the summoned record. On 25.2.2006 at 7.50 PM SI SHO Joginder Singh has handed over to me three parcels sealed with 3-3seals of T and 3-3 of seal X along with NCB form in triplicate and samples of seal T and X. The other documents pertaining to this case were also handed over to me. I entered the case property at Sr. No. 40 of Malkhana register which I have brought today and thereafter retained the case property in my safe custody in malkhana. The abstract of Malkhana register Ex. PW- 7/A is true and correct as per the original. On 26.2.06 I handed over the sample parcel, NCB form in triplicate and sample of the seals as well as other documents vide RC No.46/06 to HHC Jai Kishan No. 188 after filling in column No.12 of the NCB form Ex. PW-4/A. HHC Jai Kishan was directed to deposit the same in CTL Kandaghat. The case property remained in my safe custody and it was not allowed to be tampered with in any manner. HHC Jai Kishan has produced the receipt on RC after depositing the same in CTL Kandaghat which is Ex.PW-7/C. xx xx xx By Sh. Chuneshwar Thakur ld. Defence counsel. The case property remained in my safe custody and it was not allowed to be tampered with in any manner. HHC Jai Kishan has produced the receipt on RC after depositing the same in CTL Kandaghat which is Ex.PW-7/C. xx xx xx By Sh. Chuneshwar Thakur ld. Defence counsel. It is correct that neither samples as well as case property deposited with me nor I sent one sample to CTL Kandaghat. It is correct that when the sample and other articles used 5 to be received in the laboratory the officials who receive the same issue receipt in this behalf." 18. He was not cross-examined by the learned Public Prosecutor. Now, if he did not send the sample then who did it. HHC Jai Kishan states that he took the samples, so handed over by MHC Roop Singh, but then even this witness, in his cross-examination, admits that the sample of the seal and the NCB form sent to the CTL were in an open parcel and not sealed. He does not state that the documents were not tampered with. This casts doubt with regard to the veracity of the prosecution case. 19. Hence, 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. 20. 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. 21. 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. 22. The accused has had the advantage of having been acquitted by the Court below. 21. 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. 22. 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.