Dismissed

State of Hp v. Dass Ram Alias Shankar Singh

Himachal Pradesh HC16 Sept 2017CR.A/7/2017

Case brief

AI extract

What is this about?

State appeal against acquittal of an accused charged under Section 20 of the NDPS Act for recovery of 2 kg of charas from a bus. The court found material contradictions in the prosecution evidence as to the spot, the colour of the bag, the number of passengers and the time of recovery, held the acquittal based on proper appreciation of evidence, and dismissed the appeal.

What the court decided

AI extract

State of Hp Vs Dass Ram Alias Shankar Singh — Narcotics (NDPS) | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr.Appeal No.7 of 2017 Date of decision: 18.09.2017

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State of Himachal Pradesh ….Appellant Versus Dass Ram alias Shankar Singh ….Respondent

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Coram

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The Hon’ble Mr.Justice Sanjay Karol, ACJ. The Hon’ble Mr.Justice Sandeep Sharma, J.

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Whether approved for reporting ?¹ Yes.

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For the Appellant: Mr.R.S. Verma, Additional Advocate General.

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For the Respondent: Mr.Yudhbir Singh, Advocate.

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Per Sandeep Sharma,J.:

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Appellant-State, being aggrieved and dis-satisfied

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with the impugned judgment dated 30.8.2016 passed by learned Special Judge, Chamba Division, Chamba, H.P. in Sessions Trial No.30/2014, whereby respondent-accused came to be acquitted of charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’), has approached this Court in the instant proceedings, seeking therein conviction of respondent-accused after setting aside the judgment of acquittal recorded by learned Special Judge, Chamba Division, Chamba, H.P. in Sessions Trial No.30/2014.

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1 Whether the reporters of Local Papers may be allowed to see the judgement ? Yes.

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2. Mr.R.S. Verma, learned Additional Advocate General, while referring to impugned judgment, referred hereinabove, strenuously argued that the impugned judgment is not sustainable in the eye of law and as such the same deserves to be set aside. Mr.Verma further contended that bare perusal of impugned judgment of acquittal recorded by learned Court below itself suggests that the Court below has failed to appreciate the evidence adduced on record by prosecution in its right perspective, as a result of which erroneous findings have come on record and respondent-accused has been let off on very flimsy grounds. With a view to substantiate his aforesaid arguments, learned Additional Advocate General made this Court to travel through the evidence adduced by the prosecution on record vis-à-vis impugned judgment of acquittal recorded by the Court below to demonstrate that prosecution successfully proved beyond all reasonable doubts that on 24.3.2014, 2 Kg. of Charas was recovered from exclusive and conscious possession of respondent-accused, when he was travelling in a bus. Learned Additional Advocate General, while placing reliance upon documentary evidence adduced on record by prosecution, forcefully contended that police, while apprehending the respondent-accused with contraband, complied all codal formalities and as such there was no scope left for the Court below to acquit the respondent-accused.

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3. Lastly, Mr.R.S. Verma, learned Additional Advocate General, while praying for setting aside the impugned judgment of acquittal recorded by learned Special Judge, Chamba, vehemently argued that if evidence, be it ocular or documentary adduced on record, is read in its entirety, findings returned by learned Special Judge cannot be allowed to sustain that there are material contradictions in the testimonies of prosecution witnesses. Learned Additional Advocate General, while making this Court to travel through the statements having been made by prosecution witnesses, made serious attempts to persuade this Court that there are no major contradictions, which could persuade learned Court below to acquit respondent-accused of the charge framed against him under Section 20 of the NDPS Act.

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4. Per contra, Mr.Yudhbir Singh Thakur, learned legalaid-counsel, while refuting aforesaid submissions having been made by learned Additional Advocate General, strenuously argued that there is no illegality and infirmity in the judgment of acquittal recorded by learned Court below and as such same deserves to be upheld. Learned counsel representing the respondent-accused further contended that bare perusal of impugned judgment passed by learned Court below suggests that the Court below has dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to differ with the findings returned by Court below, which are

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based upon proper appreciation of evidence. While disagreeing with the submissions having been made by learned Additional Advocate General, Mr.Singh contended that bare perusal of evidence available on record itself suggests that there is no compliance of Section 50 of the NDPS Act. He further contended that if documentary evidence placed on record by prosecution is read in its entirety, it clearly suggests that respondent-accused was falsely implicated in the case and no Charas was recovered from bag (Pithu) allegedly carried out by him at the relevant time. Mr.Singh further contended that since seal remained with police official after sealing the contraband, possibility of contraband having been tampered could not be ruled out and as such learned trial Court below rightly held that since there is contradiction qua the colour of bag, omission on the part of investigating agency to handover seal after its use to independent witness is fatal to the case of prosecution. While inviting the attention of this Court to the oral evidence led on record by prosecution, learned legal-aid-counsel argued that there are material contradictions in the statements of prosecution witnesses and as such learned trial Court rightly not placed reliance upon the same while ascertaining the correctness of the story put forth by the prosecution. While making prayer for dismissal of the instant appeal preferred by the appellant-State, the learned legal-aid-counsel contended that there are material contradictions in the statements of the

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prosecution witnesses and by no stretch of imagination it can be said that prosecution proved its case against the accused beyond reasonable doubt and as such there is no illegality and infirmity in the judgment of acquittal recorded by the Court below.

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5. We have heard learned counsel for the parties and gone through the record of the case.

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6. Before ascertaining the correctness of the aforesaid submissions/arguments advanced on behalf of learned counsel representing the parties, we may observe that during proceedings of the case, this Court had an occasion to peruse the entire evidence led on record by the prosecution vis-à-vis impugned judgment of acquittal, perusal whereof though compel this Court to agree with the contention of learned legalaid-counsel that there are material contradictions in the statements having been made by prosecution witnesses, but this Court is not inclined to accept the contention put forth by learned legal-aid-counsel with regard to non-compliance of Section 50 of the NDPS Act as well as possibility of tampering of seal. This Court, after having carefully examined/analyzed oral evidence vis-à-vis documentary evidence led on record by prosecution to prove that it had complied with all codal formalities at the time of apprehending/nabbing of the respondent-accused with contraband, finds force in the arguments of learned Additional Advocate General that learned

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Court below arrived at wrong conclusion that no proper procedure was followed as prescribed under Section 50 of NDPS Act before effecting recovery from the respondent-accused, who at that relevant time was travelling in the bus. Similarly, we find no force in the findings returned by learned Court below that since seal remained with the police official after sealing the contraband, possibility of contraband having been tampered could not be ruled out, more particularly, when there is/was contradictions qua the colour of bag which allegedly contained Charas weighing 2 Kg.

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7. In nutshell, case of the prosecution, as emerged from the record, is that on 24.3.2014, police party headed by HC Virender Singh of SIU Chamba was on traffic checking and Nakabandi duty at Koti, Kandla, Badoh, Kalhel and Madhuwar side. As per story of prosecution, the aforesaid police party had laid a Nakka near Rakhalu Mata Mandir towards Chamba. At about 12.35 P.M., bus No.HP-73-3316 came from Tissa side, which was on its way from Mangli to Chamba. The aforesaid bus was stopped for checking and during checking, accused, who was sitting on seat No.1, found holding a bag in his lap, who, on seeing the police party, tried to keep that bag beneath the seat. However, fact remains that bag of accused was checked, which was found containing one shawl, one half sleeve sweater, three T-shirts, blue, black and piyaji in colours, one lady shirt of black flowery, one red colour carry bag in which

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one black coloured envelope and one transparent polythene envelope were found containing black substance in the shape of sticks. Police, on sniffing and on the basis of experience, found it to be Charas and accordingly, the recovered contraband was weighed and it was found to be 2 Kg.

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8. It also emerge from the record that after having recovered aforesaid contraband, Investigating Officer repacked the recovered Charas in the same manner and recovered clothes were also packed in the same bag (Pithu) and sealed in cloth parcel with seal ‘V’ at five places and retained specimen seal impression on a separate piece of cloth. It also emerge from the record that thereafter, Investigating Officer filled the NCB forms and recovered Charas was taken into possession through a seizure memo. The Investigating Officer, after having prepared Rukka, sent the same to Police Station for registration of case through Constable Yog Raj and its copy was sent to Superintendent of Police, Chamba in the hand of Constable Sunil Kumar. It also emerge from the record that the aforesaid proceedings were conducted by the Investigating Officer in the presence of driver and conductor of the bus, independent witness Kasam Deen and Constable Yog Raj, who have also signed on the memos prepared by Investigating Officer. After completion of investigation on spot, accused was brought by HC Varinder Singh to the Police Station and case property was

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produced before ASI Rajinder Kumar, who resealed the same and deposited with the MHC.

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9. On 25.3.2014, Investigating Officer prepared special report and sent the same to Superintendent of Police, Chamba and he also collected the extract of family register of accused during investigation, wherein name of accused was found to be Shankar Singh instead of Dass Ram and offence under Section 419 IPC was also added and accordingly, on the basis of information received by him that respondent-accused was found involved in similar offence vide FIR No.266/2009 and under Section 379 IPC vide FIR No.240/2008, registered the FIR at Police Station, Sadar, Chamba. On receipt of FSL report and after completion of investigation, challan was filed in the competent Court of law, who, being satisfied that prima facie case exists against the respondent-accused, charged him for the offence punishable under Section 20 of the NDPS Act, to which accused pleaded not guilty and claimed trial.

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10. Prosecution, with a view to prove its case beyond reasonable doubt, examined as many as 12 witnesses and also placed reliance upon certain documentary evidence, whereas accused-respondent in statement recorded under Section 313 Cr.P.C. denied the case of the prosecution in toto and claimed himself to be innocent. Respondent-accused in statement under Section 313 Cr.P.C. deposed that he has been falsely implicated by the Investigating Officer, who at one point of time

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told him that he will implicate him in a false case. Since, as has been observed above, this Court is satisfied that all necessary codal formalities were duly complied with by the police at the time of effecting recovery of contraband from respondentaccused, this Court shall confine itself to the findings returned by the learned Special Judge to the effect that there are material contradictions in the statements of prosecution witnesses.

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11. As per learned Additional Advocate General representing the appellant-State, 2 Kg. Charas was recovered from exclusive and conscious possession of the accused and prosecution successfully established on record the recovery of the same from the exclusive and conscious possession of the accused on 24.3.2014 at 12.35 P.M. near Rakhalu Mata Mandir, while the accused was travelling in a private bus bearing No.HP73-1316 enroute Mangli-Chamba and prayed for his conviction under Section 20 of the NDPS Act, whereas, learned legal-aidcounsel argued that witnesses examined by prosecution nowhere established the spot of recovery. It clearly emerge from the perusal of statements having been made by all the prosecution witnesses, save and except Investigating Officer Varinder Singh PW-12, all the prosecution witnesses categorically stated before the Court below that bus was stopped at Rakhalu Mata Mandir, where the police had laid Naka. 12. Similarly, independent witness PW-2 Kasam Deen stated before the Court below that police had brought the bag

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from the rack of the bus and was shown to him. He specifically denied the recovery, if any, from the exclusive and conscious possession of the accused. Similarly, there appears to be contradictions in the statements of PW-3 and PW-12 with regard to colour of the bag, which allegedly contained Charas. PW-3 and PW-12 categorically deposed before the Court below that bag was of red colour, whereas perusal of report submitted by FSL shows that bag containing Charas sent for chemical analysis was of pink colour.

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13. Apart from above, there appears to be material contradictions with regard to number of passengers travelling in the bus at that relevant time because all the prosecution witnesses have given different number of passengers travelling in the bus at that relevant time. Similarly, this Court finds that though as per record, police had associated driver of the bus namely; Kuldip Kumar as well as conductor as independent witnesses alongwith PW-3 Kasam Deen, but for the reasons best known to the prosecution, conductor was not cited as a prosecution witness.

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14. Similarly, as per statement of PW-6 ASI Ravinder Singh, he had recorded FIR Ex.PW-6/B on the basis of Rukka brought by Constable Yog Raj and had made his endorsement Ex.PW-6/A. As per this witness, he had resealed the parcel vide memo Ex.PW-6/B in the presence of Constable Rajesh Kumar and filled NCB forms Ex.PW-6/C and also embossed seal on it.

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He also deposed before Court below that he had resealed the case property and seal after use was handed over to Constable Rajesh Kumar, but interestingly Constable Rajesh Kumar was given up by the prosecution being a repetitive in nature.

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15. Apart from above, it also emerge from the record that no other Investigating Officer was called, rather complainant PW-12, who had allegedly apprehended/nabbed the respondent-accused, himself conducted investigation of the case. It has also come in the statement of one of the witnesses of the prosecution that they have already been examined in more than 40-50 cases and as such they can be termed as stock witnesses. It is also not in dispute that no bus ticket was taken into possession and seal was not produced in the Court. This Court, after having carefully examined statements of prosecution witnesses, finds substantial force in the arguments of learned legal aid counsel for the respondent-accused that prosecution was not able to prove/establish the spot and there are major contradictions in the statements of witnesses with regard to colour of the bag as well as recovery of the same from the conscious and exclusive possession of respondent-accused.

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16. Apart from PW-2 Kasam Deen i.e. independent witness and PW-11 Kuldip Kumar driver of bus, all the prosecution witnesses are official witnesses. In the instant case, spot witness i.e. PW-2 Kasam Deen nowhere supported the case of the prosecution. He specifically denied that accused was

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sitting on seat No.1 and recovery of contraband was effected from exclusive and conscious possession of respondentaccused. Though aforesaid witnesses admitted that parcel Ex.P-1, Pithu Ex.P-2, Shawl Ex.P-3, Sweater Ex.P-4, T-shirts Ex.P-5 to Ex.P-7, lady shirt Ex.P-8, carry bag Ex.P-9 and Charas Ex.P-10 are the same, which were shown to him by the police. But, he categorically stated that bag was brought by the police which was shown to him. It has nowhere come in his statement that bag was recovered from the lap of the respondent-accused and at that relevant time he was sitting on that seat. True, it is, that aforesaid witness admitted that the police had prepared seizure memo Ex.PW-2/B on which his signatures were obtained and sample seal Ex.PW-1/A was drawn, but he categorically denied that NCB forms were filled in by the Investigating Officer. This witness further deposed that at that relevant point of time, 40-50 passengers were in the bus. Candid statement of PW-2 that bag was recovered from the rack of the bus itself creates doubt with regard to sequence of events narrated by official witnesses in their statements before the Court below.

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17. Interestingly, in the case at hand, personal search of the respondent-accused was conducted after the search of bag. Though it emerge from the statement of Investigating Officer that he had conducted the Jamatalshi, but that also amounts to personal search. Though, as has been observed

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above, non-compliance of mandatory provisions of Section 50 of the NDPS Act may not be available in the given facts and circumstances of the case, but PW-2 Kasam Deen nowhere stated that respondent-accused was apprised of his legal right to be searched before the Gazetted Officer or a Magistrate. Another so-called independent witness PW-11 Kuldip Kumar though corroborated the version of the police, but he specifically deposed that his bus was stopped at Rakhalu Mata Mandir at 2.30 P.M., whereas, as per case of the prosecution, bus had reached on spot at 12.35 P.M. Otherwise also, all the other prosecution witnesses, save and except PW-2 and PW-11, deposed that bus had reached on the spot at 12.30 P.M. There is difference of two hours in the time given by PW-11 as well as other official witnesses. If the version put forth by PW-11 with regard to bus having reached at 2.30 P.M. is taken to be correct, the entire story of prosecution becomes doubtful because as per prosecution, police had completed its proceedings on the spot at 2.30 P.M. and thereafter Constable Yog Raj PW-9 was sent alongwith Rukka for registration of FIR. Aforesaid witness in his cross-examination categorically admitted that bus had started at 8.00 A.M. from Mangli, which is 65 Kilometers from the spot. He further admitted in his cross-examination that bus reached at Rakhalu Temple at 2.30 P.M. This witness in his cross-examination further admitted that he was summoned as a witness in this case thrice, but he was not examined by the

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Investigating Officer and police had asked him not to appear as a witness. It has also come in his cross-examination that they used to issue tickets to the passengers. He feigned ignorance whether any ticket was recovered from the accused by the police party or not.

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18. PW-3 Constable Vishwal Vernhal, PW-6 Investigating Officer Ravinder Singh, PW-11 Kuldip Kumar, PW12 HC Virender Singh deposed that at the time of Naka at place Rakhalu Mata Mandir, accused was travelling in Sahil Bus Service bearing No.HP-73-1316 enroute Mangli to Chamba, which was stopped for checking. One thing clearly emerge from the close reading of aforesaid statements having been given by witnesses that a red coloured bag was recovered from accused, whereas, as has been taken note above, colour of bag has been written as pink by SFL in its report Ex.P-9. Though this Court sees no reasons to differ with the submissions of learned Additional Advocate General that contradiction, if any, with regard to colour of bag cannot be termed to be a material contradiction, but this contradiction, be it minor in nature, certainly creates doubt with regard to correctness of story put forth by the prosecution, especially in the light of statements/depositions made by independent prosecution witnesses i.e. PW-2 Kasam Deen and PW-11 Kuldip Kumar. As per PW-11, bus reached at Rakhalu Mata Mandir at 2.30 P.M., whereas, as per other official witnesses bus reached at the spot

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i.e. Rakhalu Mata Mandi at 12.30 P.M., therefore, there is difference of almost two hours in time given by official witnesses as well as independent witness PW-11 Kuldip Kumar, driver of the bus. Similarly, all the prosecution witnesses gave altogether different version with regard to number of passengers travelling in the bus at that relevant time.

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19. PW-2 Kasam Deen specifically stated that there were 40-50 passengers in the bus, whereas, PW-9 Constable Yog Raj stated that approximately 15-20 passengers were in the bus, PW-10 Constable Sunil Kumar deposed that about 15 passengers were in the bus, whereas, PW-11 driver Kuldip Kumar stated that about 25 passengers were travelling in the bus at that relevant time. Most interestingly, Investigating Officer Varinder Singh deposed before the Court below that about 15 passengers were travelling in the bus at the time of checking. Similarly, all the prosecution witnesses, save and except Investigating Officer PW-12 stated that bus was signaled to stop at Rakhalu Mata Mandir, where the Naka had laid, whereas Investigating Officer Varinder Singh stated that police party had laid Naka one kilometer away towards Chamba side. Versions put forth by the prosecution witnesses with regard to spot and place of recovery, if read in its entirety, juxtaposing each other, certainly create doubt with regard to correctness of story of prosecution. Contradiction, if any, with regard to spot cannot be termed to be a minor contradiction; rather it was

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incumbent upon the prosecution witnesses with regard to prove the spot of incident beyond all reasonable doubts.

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20. Leaving everything aside, it clearly emerge from the statement of PW-2 Kasam Deen, whose testimony in this respect remains unsheltered that bag was recovered from the rack of the bus, lateron which was shown to him, certainly persuade this Court to agree with the findings of learned Court below that prosecution has not been able to prove its case beyond reasonable doubt. As per prosecution, PW-2 Kasam Deen was sitting next to the respondent-accused at the time of alleged recovery, but this witness categorically denied that bag carrying Charas was recovered from the lap of respondent-accused. Rather, he categorically stated that bag was recovered from the rack of the bus and subsequently it was shown to him. There appears to be no attempt on the part of the prosecution to associate other passengers, who were traveling in the bus at that relevant time. Since, as per own case of prosecution, 15-20 passengers were travelling in the bus at that relevant time which has further been contradicted by PW-2 Kasam Deen in his statement, where he has stated that 40-50 passengers were travelling in the bus, prosecution could always associate one or two independent witnesses to give strength to its case. Similarly, as has been taken note above, though conductor of the bus was made witness of recovery, but he was not cited as a prosecution witness. True, it is, that in case of sudden recovery

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independent witness may not be available but if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot be allowed to discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In this regard Hon’ble Apex Court in Naresh

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Kumar alias Nitu vs. State of Himachal Pradesh, Latest HLJ 2017 (SC) 935, has held as under:-

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“8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused. Karamjit Singh vs. State (Delhi Administration), 2003 AIR(SC) 1311, is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevananthanan vs. State, 2004(5) SCC 230, also does not appear to be a case where independent witnesses were available.

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9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417, observing:-

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“58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

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59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”

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10. In the facts of the present case, and the nature of evidence as discussed, the prosecution had failed to establish the foundational facts beyond all reasonable doubt. The special judge committed no error in acquitting the appellant. The High Court ought not to have interfered with the same. The submissions regarding noncompliance with Section 50 of the Act, or that the complainant could not be the investigating officer are not considered necessary to deal with in the facts of the case.

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11. In Basappa (supra), it was observed that the High Court before setting aside an order of acquittal was required to record a finding that the conclusions of the Trial Court were so perverse and wholly unreasonable, so as not to be a plausible view by misreading and incorrect appreciation of evidence. The conclusions of the High Court in the facts of the present case are more speculative, based on conjectures and surmises, contrary to the weight of the evidence on record.”

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21. Lastly, as per case of prosecution, respondent-

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accused was travelling in the bus when this contraband was

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recovered from him, but no ticket was taken into possession by

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the police. It is not the case of the prosecution that no ticket was issued to the respondent-accused, rather PW-11 driver Kuldip Kumar categorically admitted in his cross-examination that they used to give tickets to their passengers travelling in the bus. Omission on the part of the prosecution to place on record, ticket, if any, recovered from the respondent-accused also creates doubt with regard to story of prosecution.

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22. By now it is well settled that in a criminal trial, evidence of the eye witness requires a careful assessment and needs to be evaluated for its credibility. Hon’ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that “no man is guilty until proved so”, utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon’ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in C. Magesh and others versus State of Karnataka, (2010) 5 SCC 645 , wherein it has been held as under:-

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“45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on

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the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14)

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“ 14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

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46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “ no man is guilty until proven so,” hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses”.

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23. After perusing the statements of the prosecution witnesses as well exhibits placed on record, two views are possible in the present case and as such, the respondentaccused is entitled to the benefit of doubt. The learned legalaid-counsel for the respondent-accused has placed reliance on the judgment passed by Hon’ble Apex Court reported in State

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of UP vs. Ghambhir Singh & others , AIR 2005 (92) SC 2439 ,

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wherein the Hon’ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:-

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“6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only

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a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.”

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24. Reliance is also placed on judgment rendered by the

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Hon’ble Apex Court in Harbeer Singh v. Sheeshpal and Ors., (2016) 16 SCC 418, relevant para whereof is being reproduced herein below:-

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“11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242].”

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25. The Hon’ble Division Bench of this Court vide

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judgment reported in Pawan Kumar and Kamal Bhardwaj vs. State of H.P., Latest HLJ 2008 (HP) 1150 has also concluded

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here-in-below:-

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“25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue.

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26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed.

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27. Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature.

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26. In view of the detailed discussion made hereinabove

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as well as law cited hereinabove, we find no valid reason to interfere with the judgment passed by the learned trial Court below, which otherwise appears to be based upon correct appreciation of oral as well as documentary evidence on record. Accordingly, the present appeal is dismissed being devoid of any merit. Bail bonds furnished by the respondent are discharged.

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(Sanjay Karol)

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Acting Chief Justice

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September 18, 2017 (aks)

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(Sandeep Sharma) Judge

State of Hp v. Dass Ram Alias Shankar Singh

Case brief

What is this about?

What the court decided

State of Hp v. Dass Ram Alias Shankar Singh

Case brief

What is this about?

What the court decided

A compact analysis

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Cases cited

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Parties & counsel

Coram

Case details

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