State of Himachal Pradesh vs Parveen Kumar

Sanjay Karol, J.—State has appealed against the judgment dated 14.11.2007 of the learned Special Judge (1), Kangra at Dharamshala, Himachal Pradesh, passed in Sessions Trial No. 14-K/VII/2006, titled as State v. Parveen Kumar, challenging the acquittal of respondent Parveen Kumar (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 17 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

It is the case of prosecution that on 7.9.2005, SHO Mohinder Singh (PW-10) alongwith police party, comprising of police officials HC Karan Singh (PW-3) and Constable Sandeep Kumar (PW-8), left Police Station, Shahpur, on patrol duty towards Chambi side. They laid naka at Chambi, near Rajat Hotel. At about 9.30 p.m., they saw the accused and suspected him of carrying some contraband substance. On suspicion, he was informed of his statutory right vide Memo (Ex. PW-1/A), whereafter he consented to be searched by the police officials present on the spot vide Memo (Ex. PW-1/B). From the Pyjama worn by him, contraband substance, which smelt like brown sugar, was recovered. The same was weighed and found to be 10 grams. Sample of five grams was drawn. Both the parcels were sealed with seal of impression ''M''. The same was seized. Ruka (Ex. PW-4/A) was sent to Police Station, Shahpur, on the basis of which FIR No. 122/05, dated 7.9.2005 (Ex. PW-4/B), under the provisions of Section 17 of the NDPS Act was registered. The file was taken back on the spot. Proceedings were completed by Mohinder Singh, who filled up NCB forms (Ex. PW-10/A); arrested the accused; and thereafter deposited the contraband substance with MHC Shiv Kanya (PW-4). Report (Ex. PW-7/A) was sent to the superior authorities. Constable Sohan Singh (PW-9) took the sealed sample for chemical analysis to the Central Forensic Science Laboratory, Chandigarh and report (Ex. PX) of the Chemical Examiner obtained. 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.

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

In order to establish its case, prosecution examined as many as 10 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication.

Based on the testimonies of the witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar, learned Additional Advocate General and Mr. Vikram Thakur, Deputy Advocate General, on behalf of the State as also Mr. R.L. Chaudhary, 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. (See: Prandas Vs. The State, ).

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.

In the instant case, independent witnesses, namely Harish Chand (PW-1) and Jan Mohammed (PW-2) have not supported the prosecution case. They were declared hostile and extensively cross-examined, but nothing fruitful could be elicited from their testimonies.

It is a settled proposition of law that merely because a witness has turned hostile, his entire evidence cannot be termed to be unworthy of credence. It is for the Court to consider, whether as a result of contradiction, witness stands fully discredited or part of his testimony can still be believed. If the credit of a witness is not fully shaken, Court can rely upon that part of the testimony which appears to be creditworthy. (See: State of Rajasthan Vs. Om Prakash, ).

From their unrebutted testimonies, we find the witnesses to have categorically deposed that there is no Karyana shop in the restaurant where witness Harish Chand was working nor was there weighing machine available. Witnesses are categorical that they signed the papers on the direction of owner of the restaurant, where they were working. Thus, this version contradicts the prosecution story, resulting into emergence of two views.

It is well established principle of law that (i) the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more probable; (ii) while dealing with a judgment of acquittal, the appellate court must consider entire evidence on record, so as to arrive at a finding as to whether views of the trial court are perverse or otherwise unsustainable; (iii) the appellate court is entitled to consider whether in arriving at a finding of fact, trial Court failed to take into consideration any admissible fact; and (iv) the trial Court failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. (See: Balak Ram Vs. State of U.P., ; Allarakha K. Mansuri Vs. State of Gujarat, ; Raghunath and Ram Kishan and Others Vs. State of Haryana and Others, ; State of Uttar Pradesh Vs. Ram Veer Singh and Others, ; S. Rama Krishna Vs. S. Rami Reddy (D) by his LRs. and Others, ; Sambhaji Hindurao Deshmukh and Others Vs. State of Maharashtra, ; Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, ; Perla Somasekhara Reddy and Others Vs. State of A.P. rep. by Public Prosecutor, ; and Ram Singh @ Chhaju Vs. State of Himachal Pradesh, ).

In AIR 1934 227 (Privy Council), the Privy Council held that:

"...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...."

In Chandrappa and Others Vs. State of Karnataka, , the apex Court observed as under:

"(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

In State of U.P. Vs. Banne @ Baijnath and Others, , the apex Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court, which principle, in our considered view, would squarely apply to the judgment under review by us. The circumstances include; (i) The High Court''s decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court''s conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court''s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) Apex Court must always give proper weight and consideration to the findings of the High Court; and (vi) the apex Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. The apex Court further held that "Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court''s acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference."

(Emphasis supplied)

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 overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.

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.

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 @ Govinda Vs. State by Sriramapuram P.S. and Another, ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ); Tahir Vs. State (Delhi), ; and Aher Raja Khima v. State of Saurashtra, AIR 1956]."

On first brush, it appears that testimony of Mohinder Singh, of having recovered the contraband substance from the accused to have been corroborated by Karan Singh (PW-3), but however close scrutiny of their testimonies would only reveal that there are material contradictions, rendering the prosecution case to be doubtful and the witnesses not worthy of credence.

Mohinder Singh admits that weights and scale were brought from the local shopkeeper, who, for unexplained reasons, was not associated as a witness. Why so? has not been explained. Afterall respected persons from the locality are the best witnesses. Mohinder Singh also states that owner of Rajat Hotel, Chambi, where naka was set up, was not associated as a witness. Non- examination of these persons acquires significance in view of major contradiction, which has emerged in the testimony of Karan Singh and Mohinder Singh. According to Karan Singh, weights of 5 grams and 10 grams were brought from Rajat Hotel, which were used for weighing the contraband substance. Significantly, there is no mention in the seizure memo to such effect. Be that as it may, Karan Singh categorically states that the contraband substance, being meager in quantity was weighed with one rupee coin. Thus the contradiction, which we find is major, renders the prosecution version of having effected recovery of the contraband substance to be doubtful. This only fortifies and lends credence to the testimony of independent witnesses.

HC Karan Singh could not depose as to whether seal used was official or personal seal of the SHO. Such version acquires significance, when we find that original seal was not produced in Court.

Shiv Kanya (PW-4) admits that there is overwriting on the ruka. Even on link evidence, the case is weak. There is delay in depositing the contraband substance in the Laboratory, for on 9.9.2005, Parvesh Kumar handed over the sample to Constable Sohan Singh, to be deposited at the Laboratory, which was so done only on 13.9.2005. Now, it does not take more than few hours for a person to travel from Kangra to Chandigarh by Bus. Sohan Singh (PW-9) faintly attempts to explain the delay by stating that he first went to the Laboratories at Junga and Kandaghat and then to Chandigarh. However, there is no record to such effect. Even otherwise, period of four days remains unexplained. As such we do not find testimony of this witness to be inspiring in confidence at all.

Hence, 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 the contraband substance.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

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 Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , 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 application(s), if any.