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2015 DIGILAW 584 (HP)

Tapat Bahadur Shahi v. State of Himachal Pradesh

2015-05-22

P.S.RANA, SANJAY KAROL

body2015
JUDGMENT Sanjay Karol, Judge Record reveals that no appeal stands filed by the State against the judgment of acquittal of four co-accused persons. In fact, under instructions from the State, learned Additional Advocate General made a specific statement that neither any appeal against the judgment of acquittal of these co-accused persons stands filed nor was it sought to be filed. Hence, we proceed to decide the appeal, so filed by the present appellant Tapat Bahadur, who alone stands convicted. 2. Appellant-convict Tapat Bahadur, hereinafter referred to as the appellant, has assailed the judgment dated 17.5.2011/20.5.2011, passed by Special Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No.6-S/7 of 2010, titled as State of Himachal Pradesh v. Rajiv alias Sanju & others, whereby he stands convicted of the offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.1,00,000/- and in default of payment thereof, to further undergo rigorous imprisonment for a period of one year. 3. It is the case of prosecution that in the night intervening 24.11.2009 & 25.11.2009, ASI Harjit Singh (PW-8) alongwith HHC Ram Lal (PW-7), was on a patrol duty and had set up a naka near Beas Dhaba, 16 Meel, District Shimla. At about 4.10 a.m., an Alto Car bearing number HP-01A-6515, driven by co-accused Rajiv Kumar alias Sanju, was stopped for checking. In the vehicle, coaccused Vinod Kumar was sitting on the front seat and the remaining accused persons namely Tapat Bahadur (appellant), Nain Bahadur and Zamil were sitting on the rear seat. Upon checking the vehicle, police recovered one bag, concealed under the driver’s seat, which contained charas like substance in the shape of Damru. Upon weighment, it was found to be 1.850 kgs. The same was sealed with seal impression ‘T’ and seized vide Memo (Ex. PW-1/B). Search and seizure operations were carried out in the presence of independent witnesses Dharam Parkash (PW-1), Sanjeev Sood (PW-2) and Virender (not examined). HHC Ram Lal took the ruka (Ex. PW-7/A), on the basis of which FIR No.229 dated 25.11.2009 (Ex. PW- 9/A), under the provisions of Section 20 of the Act, was registered at Police Station, Shimla West, District Shimla. HHC Ram Lal took the ruka (Ex. PW-7/A), on the basis of which FIR No.229 dated 25.11.2009 (Ex. PW- 9/A), under the provisions of Section 20 of the Act, was registered at Police Station, Shimla West, District Shimla. File was taken back to the spot and necessary formalities completed, including filling up of NCB form (Ex. PW-8/B). All the accused persons (occupants of the vehicle) were arrested and informed about the ground of arrest. Case property as also the accused were produced before Inspector Gurdeep Singh (PW-9), who resealed the parcel with his seal impression ‘B’. Thereafter, it was deposited with the MHC Nand Lal (PW-6), who kept the same in the Malkhana. Special Report (Ex. PW-5/A), so prepared by Harjit Singh, was presented before Madan Lal (PW-10), working in the Officer of ASP, Shimla. Contraband substance was sent to the Forensic Science Laboratory, Junga, for analysis, through Constable Kishori Lal (PW-3). Report of the Laboratory (Ex.PY) revealed the contraband substance to be Charas. On completion of investigation, which prima facie revealed complicity of the appellant and his co-accused in the alleged crime, challan was presented in the Court for trial. 4. All the accused persons, were charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which they did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as 12 witnesses and statements of the accused persons, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded. All the accused, though admitted their presence on the spot, pleaded false implication. 6. Based on the testimonies of the witnesses and the material on record, trial Court only convicted and sentenced appellant Tapat Bahadur. Remaining coaccused persons (Rajiv alias Sanju, Vinod, Nain Bahadur and Zamil) stand acquitted. 7. We have heard learned counsel for the parties as also perused the record. 8. It is a settled principle of law that when allegedly several persons commit an offence in furtherance of common intention and all except one are acquitted, it is open to the appellate court to find out, on reappraisal of evidence whether some of the accused persons stood wrongly acquitted, although it would not interfere with such acquittal in the absence of any appeal by the State Government. The effect of such finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. (See: Brathi alias Sukhdev Singh v. State of Punjab, (1991) 1 SCC 519 ). 9. Dharam Parkash (PW-1) categorically states that the vehicle in question was being driven by Sanju, whose friend Vinod was sitting on the front seat and the remaining accused were sitting on the back seat of the car, which was stopped by the police for checking. Witness clarifies that the vehicle was hired by the occupants, as was so disclosed by them to the police. But then which one of the occupants, he does not state. He also states that the occupants of the vehicle had not informed the police that the bag belonged to the driver or his friend. He categorically states that the bag was found concealed under the driver’s seat. In his testimony, there is nothing specific qua the present appellant. 10. Sanjeev Sood has not supported the prosecution and was extensively cross-examined by the Public Prosecutor. However, with regard to complicity of the present appellant Tapat Bahadur, he has not disclosed anything, save and except, recording presence on the spot, which fact, in any case, is not in dispute. 11. Thus from the testimony of independent witnesses, it cannot be proved that the bag, from which charas was recovered, belonged to appellant Tapat Bahadur. 12. Now, this brings us to the testimony of the police officials present on the spot. 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 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. 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. 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]. 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. 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. Harjit Singh categorically states that the vehicle in question was stopped for checking. At that time, all the accused persons were sitting in the vehicle. Rajiv alias Sanju was on the wheels, whereas Vinod Kumar was sitting on the front seat and the remaining three accused persons were sitting on the rear seat. He specifically does not state who was sitting in the centre or on the sides. He further states that upon checking the vehicle, a bag, kept under the driver’s seat, was recovered, which contained Charas, in the shape of Damru. This was in the presence of witnesses Sanjiv Sood and Dharam Parkash. On weighment, Charas was found to be 1.850 kgs, which was seized and sealed with seal impression ‘T’. NCB form (Ex. PW-8/B) was filled up on the spot. Also, Ruka (Ex. PW-7/A) was sent to the Police Station. All the accused persons were arrested on the spot and informed of their rights. On weighment, Charas was found to be 1.850 kgs, which was seized and sealed with seal impression ‘T’. NCB form (Ex. PW-8/B) was filled up on the spot. Also, Ruka (Ex. PW-7/A) was sent to the Police Station. All the accused persons were arrested on the spot and informed of their rights. Witness states that during interrogation, it so revealed that Charas was brought by Tapat Bahadur and he had negotiated with Nain Bahadur and Zamil, who further had conversation with Rajiv. Now, this version of his is mere exaggeration and improvement. We find testimony of the witness not to be inspiring in confidence at all. Where did Tapat Bahadur bring the charas from, has not been disclosed. Why was the investigation not taken to the source? All this remains unexplained, rendering such version to be further doubtful, if not false. There are improvements, exaggerations and embellishments. The witness admits absence of any reference to the weighing scales in his previous statement. Also, there is no reference of either Zamil or Tapat Bahadur indulging in the trade of contraband substance. Crucially, witness admits that when the vehicle was checked, all the passengers were standing outside. The only incriminating evidence, in his version, against Tapat Bahadur is that “when I asked the occupants of the vehicle about the bag, Tapat Bahadur told that it belonged to him”, but then this version has come out, for the first time, in Court, as the witness admits it not to be there in his previous statement, so recorded under the provisions of Section 161 of the Code of Criminal Procedure and corroborated by any evidence. Significantly, Ruka (Ex. PW-7/A), FIR (Ex. PW-9/A) and Special Report (Ex.PW-5/A) do not record such fact. What is recorded is only that Tapat Bahadur was sitting immediately behind the driver’s seat. Now, it is not the case of the prosecution that the co-passengers, during investigation, had revealed that the bag either belonged to or was concealed by Tapat Bahadur. It is also not the case of prosecution that Tapat Bahadur was holding the bag. In fact, it is the positive case of the prosecution that the bag was concealed underneath the driver’s seat. It is also not the case of prosecution that the passengers sitting on the rear seat could have seen the same. It is also not the case of prosecution that Tapat Bahadur was holding the bag. In fact, it is the positive case of the prosecution that the bag was concealed underneath the driver’s seat. It is also not the case of prosecution that the passengers sitting on the rear seat could have seen the same. If at all, anyone was accusable, it was the driver, who incidentally was also the owner of the vehicle. Thus, this version is absolutely uninspiring in confidence. 18. HHC Ram Lal also categorically does not state that the bag, from which Charas was recovered, belonged to Tapat Bahadur or was so concealed by him. In fact, he is categorical that “the passengers sitting on the back seat, did not say that the bag did not belong to them and it belonged to the driver”. 19. Though it stands established that at the time when the vehicle was checked, all the accused persons were travelling together, but however, none has come forward to establish that the vehicle was either hired by Tapat Bahadur alone or that the passengers sitting on the rear seat were his relatives, friends, acquaintances or business associates. Prosecution also has not been able to establish that the bag in question was concealed by Tapat Bahadur or that it belonged to him. Then how can it be presumed that recovery was effected from the conscious possession of the appellant. There is no past history of appellant Tapat Bahadur being involved in any crime. He was also not under any suspicion. Police party was not suspecting any trafficking of the contraband substance at the relevant point in time. Also the area in question is not prone to trafficking of such substance. 20. It is in this backdrop the Court below erred in relying upon Ruka (Ex. PW-7/A), wherein it is recorded that Tapat Bahadur was sitting immediately behind the driver’s seat, hence, he was in the control and supervision of the bag (Ex. P-2). Trial Court erred in invoking the statutory presumption of having recovered the contraband substance from his conscious possession. Trial Court also erred in relying upon the provisions of Sections 7 & 8 of the Indian Evidence Act, while coming to the conclusion that admission so made by Tapat Bahadur before the Police officer, not being a concession, was admissible in evidence. Trial Court also erred in relying upon the provisions of Sections 7 & 8 of the Indian Evidence Act, while coming to the conclusion that admission so made by Tapat Bahadur before the Police officer, not being a concession, was admissible in evidence. Admission of ownership of bag, before the Police Officer, was absolutely inculpatory, and hit by statutory provisions, which, in any case, we do not find to be inspiring in confidence. Action, if any, had to be taken against the owner/driver and no appeal of acquittal stands filed against him. 21. Charge against the accused is not under the provisions of Section 29 of the Act. In any event, in Balkar Singh v. State of Haryana, (2015) 2 SCC 746 , Hon’ble the Supreme Court of India held that one alleged conspirator cannot be convicted if all co-conspirators are acquitted. Under these circumstances, conspiracy would remain unestablished. 22. In view of the aforesaid discussion, thus, it cannot be said that the prosecution, by leading clear, cogent, convincing and reliable piece of evidence, has been able to establish, beyond reasonable doubt, recovery of the contraband substance from conscious possession of the appellant. 23. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of appellant Tapat Bahadur. 24. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 17.5.2011/20.5.2011, passed by Special Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No.6-S/7 of 2010, titled as State of Himachal Pradesh v. Rajiv alias Sanju & others, is set aside and appellant Tapat Bahadur is acquitted of the charged offence. He be released from jail, if not required in any other case. Amount of fine, if deposited by the appellant, be refunded to him accordingly. Release warrants be immediately prepared. Appeal stands disposed of, so also pending application(s), if any.