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2017 DIGILAW 1266 (HP)

Davinder Kumar v. State Of Himachal Pradesh

2017-11-17

SANJAY KAROL

body2017
JUDGMENT Sanjay Karol, A.C.J. - Assailing the judgment dated 30.3.2009, passed by the learned Special Judge, Hamirpur, H.P., in Sessions Trial No. 21 of 2008, titled as State of Himachal Pradesh vs. Davinder Kumar, whereby the appellant-accused stands convicted for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of six months and pay fine of Rs. 2,000/-, he has filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 12.2.2008, police party headed by SI Fauja Singh (PW-8) were travelling in a vehicle and at about 3.00 p.m. at a place known as Kot, they saw the accused, who seeing the police party got perplexed and tried to flee. However while doing so, he threw a packet which the police picked and on opening found charas. Total quantity was of 200 grams. Two samples of 10 grams each were drawn. The samples as also the bulk parcel were separately sealed with seal impression - S and taken into possession vide recovery memo (Ext. PW-1/A). Fauja Singh filled up NCB forms (Ext. PW-8/A) on the spot, where after, ruka (Ext. PW-4/A) was sent through Const. Jitender Kumar (PW-4) which led to registration of F.I.R. No. 35/2008, dated 12.2.2008 (Ext. PW 9/A) at Police Station Sadar, Hamirpur, Distt. Hamirpur, H.P., against the accused under the provisions of Section 20 of the Act. With the completion of codal formalities on the spot, accused was arrested. The case property was produced before SHO Anjni Kumar (PW-9), who after resealing the same with seal impression-H, entrusted MHC Vijay Parkash (PW-6), Incharge of the Maalkhana, with the same for keeping it in safe custody. Const. Sant Ram (PW-5) took the sample parcel for chemical analysis to the State Forensic Science Laboratory, Junga, and report (Ext. PW-9/E) taken on record. Also special report (Ext. PW-7/A) was sent to the office of Superintendent of Police, Hamirpur. 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. PW-9/E) taken on record. Also special report (Ext. PW-7/A) was sent to the office of Superintendent of Police, Hamirpur. 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 Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence: "... I am innocent. I have been falsely implicated. In fact, a bus had collided with a car because of which, the road was blocked and I alongwith my friend were forcibly apprehended and thrown in the vehicle and mercilessly beaten. A false case has been planted upon me by the police" 5. It is a matter of record that accused did not lead any evidence in defence. 6. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offence and sentenced as aforesaid. Hence the present appeal. 7. Having heard learned counsel for the parties as also perused the record, this Court is of the considered view that the reasoning adopted by the trial Court is perverse and not based on correct and complete appreciation of testimonies of the witnesses, evidence and other material placed on record, causing serious prejudice to the accused, resulting into miscarriage of justice. 8. In Shivaji Sahabrao Bobade and another vs. State of Maharashtra, (1973) 2 SCC 793 , the apex Court, has held that: ".......Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code"......... Emphasis supplied) 9. Emphasis supplied) 9. The apex Court in Lal Mandi vs. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. 10. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences. 11. Undoubtedly, no independent witness has been associated by the police, in carrying out the search and seizure operations. The issue as to whether in every case, and under the all circumstances, police must associate independent witnesses, while carrying out search and seizure operations, is no longer res integra. 12. It is also a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other 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 cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If 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 the 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. 13. 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. 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. 14. 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 vs. State by Srirampuram Police Station and another, (2012) 4 SCC 722 ; Tika Ram vs. State of Madhya Pradesh, (2007) 15 SCC 760 ; Girja Prasad vs. State of M.P., (2007) 7 SCC 625 ); and Aher Raja Khima vs. State of Saurashtra, AIR 1956 SC 217 ). 15. Apex Court in Tahir vs. 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." 16. In view of the aforesaid statement of law, we shall now examine the testimony of police officials. 17. We shall first examine the testimonies of spot witnesses in whose presence the contraband substance was recovered from the accused. They are Const. Ashok Kumar (PW-1), Const. Krishan Chand (PW-2), Const. Jitender Kumar (PW-4) and SI Fauja Singh (PW-8). Having carefully gone through their statements, this Court is of the considered view that the genesis of the prosecution story of the police party having travelled together to village Kot and recovered the contraband substance from the conscious possession of the accused appears to be doubtful. Doubt is with regard to the (a) presence of the police party on the spot; (b) time and place from where the contraband substance was recovered; (c) persons present on the spot; and (d) non association of independent witnesses. All this renders the genesis of the prosecution story of having recovered the contraband substance from the conscious possession of the accused to be extremely doubtful. 18. Fauja Singh states that he alongwith other police officials were travelling in a vehicle. At Kot they saw the accused. Seeing the police party he tried to run away. On suspicion he was overpowered but in this process accused threw a packet which he had kept in his pant. It contained charas. Const. Krishan Chand brought weights and scale from the shop of Krishan Pal (PW-3) and when weighed, charas was found to be 200 grams. Two samples of 10 grams each were drawn from the recovered charas. The samples as also the remaining bulk charas were separately sealed with seal impression-S. Well this is what the witness states in his examination-in-chief. 19. To begin with, it be only observed that there is no cogent documentary evidence on record establishing presence of this witness on the spot. The samples as also the remaining bulk charas were separately sealed with seal impression-S. Well this is what the witness states in his examination-in-chief. 19. To begin with, it be only observed that there is no cogent documentary evidence on record establishing presence of this witness on the spot. Constable Jitender Kumar states that he received a telephone call from Fauja Singh and as such, in his vehicle went to Anu Chowk from where police party left towards village Kot. But then there is no evidence establishing such fact and such version is not corroborated by Constables Krishan Chand and Ashok Kumar. Which is that vehicle? who owns the same? what was the vehicle used for? what was the police party doing at Anu Chowk? and for what purpose they were proceeding towards Kot? itself remains unexplained, rendering the genesis of the prosecution version to be highly doubtful. 20. This takes us to the cross examination part of testimony of Fauja Singh who admits that close by there were residences, shops and a temple. Yet none from the locality was associated before carrying out the seizure operations. Witness does try to state that there was no requirement as police officials were present on the spot but then if scale and weights could have been brought from the shop of a goldsmith so could they have endeavoured to bring an independent witness. It is not that police was not aware about the contents of the packet. It contained charas, for according to Fauja Singh from the smell and looks of the packet, he could made out that the stuff was charas. This Court is of the view that non association of independent witnesses, more so, when presence of the police officials on the spot itself is in doubt, would have only lend credence to their story. 21. Further one notices the contradictions and improbabilities in their statements. 22. Const. Jitender Kumar states that the accused was made to sit in the vehicle which is not the case of Fauja Singh. Const. Ashok Kumar states that accused was apprehended after he had covered certain distance which is not so stated by other police officials. 23. 21. Further one notices the contradictions and improbabilities in their statements. 22. Const. Jitender Kumar states that the accused was made to sit in the vehicle which is not the case of Fauja Singh. Const. Ashok Kumar states that accused was apprehended after he had covered certain distance which is not so stated by other police officials. 23. Krishan Chand states that Jitender Kumar and Fauja Singh (police party) reached Kot at about 3.00 p.m. which version stands contradicted by Ashok Kumar according to whom it was at about 2.15/2.45 p.m. Further as per the version of Krishan Chand, the place of incident was secluded and no house or shop was found to be close by, which version stands contradicted by other police officials present on the spot. 24. Further, Ashok Kumar and Krishan Chand state that they were present at Anu Chowk where Fauja Singh met them and from there they proceeded towards village Kot. Whereas Jitender Kumar states that when he alongwith other police officials had gone to Anu they were telephonically instructed by Fauja Singh to come to Anu Chowk. 25. In this view of the matter, this Court finds testimony of the prosecution witnesses not to be inspiring in confidence. 26. There is yet another reason for disbelieving the prosecution version. Weighing scale was brought from Krishan Pal who is a shop keeper at Hamirpur Town. He is categorical that he accompanied police official Krishan Chand to the spot for weighing the contraband substance. Well this totally knocks down the prosecution story of non availability of any independent witness who could have been associated in conducting the seizure operations. 27. As has come in the testimony of Fauja Singh, Hamirpur is at a distance of 8 k.m. from the spot. Now if a goldsmith could be brought from such a distance, why no endeavour was made to fetch scales from close by shops or why accused was not taken straightaway to the police station for carrying out seizure operations. 28. Further timing of apprehension of the accused stands contradicted by the goldsmith, according to whom Krishan Chand had reached his shop at about 3.15 p.m. 29. Not only that, even by way of corroborative evidence, prosecution has not been able to establish its case beyond reasonable doubt. 30. 28. Further timing of apprehension of the accused stands contradicted by the goldsmith, according to whom Krishan Chand had reached his shop at about 3.15 p.m. 29. Not only that, even by way of corroborative evidence, prosecution has not been able to establish its case beyond reasonable doubt. 30. All these contradictions, improbabilities, embellishments stood ignored by the trial Court and as such, findings returned on all the points being perverse and contrary to law are unsustainable in law. 31. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings 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 the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. 32. Since prosecution has not been able to establish its case of having recovered the contraband substance from the conscious possession of the accused, no statutory presumption as envisaged under Section 35 of the Act, can be drawn against the accused. 33. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence dated 30.3.2009, passed by the learned Special Judge, Hamirpur, H.P., in Sessions Trial No. 21 of 2008, titled as State of Himachal Pradesh vs. Davinder Kumar, is set aside and the accused is acquitted of the charged offence. Fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged. 34. Efforts put in by Ms. Shreya Chauhan, learned Amicus Curiae in rendering valuable assistance to the Court are highly appreciable. Appeal stands disposed of, so also pending application(s), if any.