State of Himachal Pradesh vs Chhalo Devi

Sanjay Karol, J.—Assailing the judgment dated 12.03.2013, passed by Special Judge, Kullu, H.P., in Sessions Trial No. 67 of 2010 (RBT No. 118/12), titled as State Versus Chhalo Devi, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 16.10.2010, ASI Daya Ram (PW.8) alongwith Mastan Singh (PW.6), Om Prakash (PW.7), Anil Kumar, Lady Constable Harsha Lata, Meena Kumari (not examined) was on patrol duty at Nehru Kund (Manali). Accused, who was carrying a rucksack, seeing the police party, became nervous, hence on suspicion was apprehended. Suspecting that she may be carrying some contraband substance, Om Prakash (PW.7) was sent in search of independent witnesses. However, since none were available, Daya Ram (PW.8), after associating Om Prakash (PW.7) and Meena as witnesses and apprising the accused of her rights vide memo (Ex.PW.7/A), searched her. Though nothing was recovered from her personal possession, but however, from the rucksack charas wrapped in polythene, weighing 2.900 kilograms, was recovered. Two samples were drawn and sealed with four seals having impression ''T''. Special report (Ex.PW.1/A) was sent to the superior Officer. Om Prakash (PW.7) took Rukka (Ex.PW.4/A) to Police Station, Manali, on the basis of which FIR No. 241 of 2010, dated 16.10.2010 (Ex.PW.4/B) was registered, under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. Accused was arrested on the spot. SHO Mastan Singh (PW.6) reached the spot. Case property was entrusted to him, who in turn resealed the same with four seals having impression ''H''. Whereafter, Daya Ram (PW.8) deposited the same with MHC Sher Singh (PW.3). NCB forms were filled up on the spot. Man Chand (PW.2) took the sample for chemical analysis to the Forensic Science Laboratory, Junga. Report of the Chemical Analyst (Ex.4/C) was obtained by the 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.

The accused was charged for having committed an offence punishable under the provisions of Section 20 of the NDPS Act, to which she did not plead guilty and claimed trial.

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 she took the following defence:-

"I am innocent. On 15.10.10 I had visited P.S. Manali in connection to get my arrears of rent as my building in Prini is let out to the deptt. of Home on rent. SHO Mastan Singh abused me & planted/foisted a false case against me & told me that since he had planted huge quantity of charas on me I would not be able to go scot free even till Supreme Court".

In defence two witnesses were examined.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard Mr. B.S. Parmar, learned Addl. AG., assisted by Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. Bimal Gupta, 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.

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.

In Prandas Vs. The State, , 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 - 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.""

On record, we find the defence so taken by the accused to have been probabilized through the testimonies of Roop Chand (DW-1) and Smt. Harsh Lata (DW.2), who admit that arrears of rent for the premises taken on rent by the Police Department were disbursed only on 27.11.2010.

That apart, in our considered view, prosecution version of having made an endeavour of searching independent witnesses does not inspire confidence at all, for after all accused was apprehended on 16.10.2010 at 12.30 PM. It was broad day light. In the month of October, at Nehru Kund, there is heavy tourist rush. Also place being densely habitable, local residents are always available. In any case commercial as also Government organizations/establishments were within a radius of 500 meters from the place of occurrence of incident. No written Hukumnama (order) was issued to the witness to bring independent witnesses. Om Prakash (PW.7) admits that his version of being deputed to search for independent witnesses is not so recorded by the police in his statement recorded under the provisions of Section 161 of Cr.P.C. Daya Ram (PW.8) admits that police officials looking after the security at the residence of former Prime Minister were available close by, yet why were they not associated, has not been explained by the prosecution. Also when, from whom and on whose asking SHO Mastan Singh (PW.6) came on the spot, has not been explained. At best he could have got independent witnesses, for after all he was not member of the patrolling party.

We further find that there is contradiction in the testimony of Mastan Singh (PW.6), Om Prakash (PW.7) and Daya Ram (PW.8) with regard to the timing of incident. According to PW.7, incident took place at 12.30 PM. Whereas, according to Mastan Singh (PW.6) it was at about 3.15 PM.

There is yet another flaw in the prosecution story. Accused was allegedly searched by Meena Kumari, a lady constable, to whom original seal ''T'' was handed over. For unexplained reasons, she was not examined in Court, nor original seal produced.

Further, according to Sher Singh (PW.3), he received the case property and the NCB forms in triplicate, entry pertaining to which was made in the Malkhana register (Ex.PW.3/A). But perusal of this document reveals that it was Mastan Singh (PW.6) who deposited the case property and not Daya Ram as is so deposed by him. Thus, it becomes evident that case property recovered by Daya Ram was never deposited in the Malkhana and parcel allegedly sent to the FSL, Junga vide Road Certificate (Ex.PW.3/B) through constable Man Chand (PW.2), was perhaps different.

Also who brought the electronic weighing scales, has not been explained, for it is not the case of police party that they were carrying the I.O. kit, containing electronic scales on patrol duty. It is also not the case of police that they had any suspicion of any illegal activity being conducted in the area. So why would they carry an electronic scale?

We find there is interpolation in the NCB forms (Ex.PW.3/C) with regard to the date, time and place of seizure. Figure ''2'' has been re-written and timing changed to 1.50 PM. There is no explanation forthcoming with regard to the same.

The genesis of prosecution story of having left the Police Station on patrol duty itself does not inspire confidence. Though by placing daily station entry (Ext. PW.5/A) on record prosecution has tried to establish that police officials left the Police Station towards Nehru Kund for patrolling duty but curiously neither Mastan Singh (PW.6) nor Om Prakash (PW.7) or for that matter Daya Ram (PW.8) have deposed that they left the Police Station for such purpose towards Nehru Kund at 11.40 AM.

As per prosecution case, SHO Mastan Singh was present on the spot, but if statement (examination-in-chief) of the witness is seen he has nowhere stated the manner in which proceedings were initiated by Daya Ram (PW.8) after apprehending the accused.

Om Prakash (PW.7) states that carrying rukka he left the spot at 2.30 PM and reached the Police Station at 2.50 PM. He took the file back at 3.30 PM. However, if memo of arrest (Ex.PW.7/E) is seen, accused stood arrested at 3.10 PM. Difference in time remains unexplained, for it has come on record that Police Station, Manali, was at a distance of 7 kms from the spot and it is nobody''s case that Om Prakash went to the Police Station in a vehicle. When viewed in totality, the difference in time through negligible acquires significance, rendering the prosecution story to be doubtful impeaching the credit and reliability of the witnesses.

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 and embellishments in the statements of police officials are glaring, material and relevant, totally shaking the edifice of the prosecution story.

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.

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 Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , 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.