Dismissed

State of Hp v. Rakesh Rana

Himachal Pradesh HC4 Jul 2024CR.A/404/2014

Case brief

AI extract

What is this about?

On an appeal against acquittal in an NDPS case involving heroin seizure at Van Vihar, Manali, the High Court held that the prosecution failed to prove the accused was present at the spot and to establish the context of the seizure, thus upholding the trial court's acquittal.

What did the court decide?

Appeal dismissed; acquittal of the respondent confirmed.

State of Hp Vs Rakesh Rana — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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1 Neutral Citation No. ( 2024:HHC:4427 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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*Cr. Appeal No. 404 of 2014*
*Reserved on: 26.06.2024*
*Decided on: 04.07.2024*

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_____________________________________________________ State of H.P. …..Appellant. Versus

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Rakesh Rana ……Respondent.

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Coram

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The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? No.

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_____________________________________________________ For the appellant: Mr. I.N. Mehta, Mr. Yashwardhan Chauhan, Senior Additional Advocates General, with Ms. Sharmila Patial, Additional Advocate General, Mr. J.S. Guleria and Mr. Raj Negi, Deputy Advocates General. For the respondent/State: Mr. Chaman Negi, Advocate.

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Sushil Kukreja, Judge.

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The instant appeal has been maintained by appellant/State against judgment dated 18.06.2014, passed by learned Special judge, Kullu, H.P., in Sessions Trial No. 39/2012 (223/2013), whereby the respondent/accused (hereinafter referred to as “the accused”) was acquitted for the commission of the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2 Neutral Citation No. ( 2024:HHC:4427 )

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The facts giving rise to the present appeal, as per the

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prosecution story, can be summarized as under:

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On 18.05.2012 a police party was on patrolling duty

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and present at Van Vihar, Manali. Police spotted Rakesh Rana (accused) coming on pedestrian path and on seeing the police, the accused turned baffled, took a slew and tried to flee. The accused, while running, threw a polythene packet from his pocket on the road. On suspicion, the accused was nabbed by the police and on being asked, the accused did not give any satisfactory reply qua the polythene packet thrown by him. The police had suspicion that the accused might have thrown some contraband from his pocket, so police searched independent witnesses, but no independent witness was available, thus, HC Narayan Chand and LC Meena were associated as witnesses. The accused was apprised qua his right to be searched either before a Magistrate or a Gazetted Officer and the accused consented to be searched by the police. First of all police personnel gave their personal search to the accused, but nothing incriminating was found. Thereafter, the police checked the polythene envelope thrown by the accused and it was found containing some brownish substance, which was wrapped in a piece of newspaper and on checking, the same was found to be smack. Subsequently, the police completed all the

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3 Neutral Citation No. ( 2024:HHC:4427 )

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codal formalities and rukka was sent to police station, whereupon

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FIR was registered against the accused. On chemical examination, the recovered contraband was found to be diacetylmorphine (heroin). After completion of the investigation, the police presented the chargesheet in the trial Court.

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The prosecution, in order to prove its case, examined as many as seven witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. The accused did not examine any witness in his defence.

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The learned Trial Court, vide impugned judgment dated 18.06.2014 acquitted the accused, hence the instant appeal preferred by the appellant/State.

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The learned Senior Additional Advocate General for the appellant/State contended that the judgment passed by the trial Court is based on hypothesis, surmises and conjectures, thus liable to be set-aside. He further contended that the learned Trial Court did not appreciate the evidence in its right and true perspective and the learned Trial Court gave much weightage to the minor omissions. Lastly, he has prayed that the instant appeal be allowed and the accused be convicted.

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Conversely, the learned counsel for the

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respondent/accused contended that the learned Trial Court has

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4 Neutral Citation No. ( 2024:HHC:4427 )

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appreciated the evidence in its right and true perspective and the judgment rendered by the learned Trial Court is free from blemishes. He has contended that the judgment of the learned Trial Court needs no interference, as the same is the result of proper appreciation of facts and law. The appeal, which sans merits, be dismissed.

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We have heard the learned Senior Additional General

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for the appellant/State and the learned counsel for the respondent/accused and also gone through the record carefully.

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It is well settled by the Hon’ble Apex Court in a catena of decisions that an Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court 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. Further, if two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the

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5 Neutral Citation No. ( 2024:HHC:4427 )

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finding of acquittal recorded by the trial Court.

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The scope of power of appellate court in case of appeal against acquittal has been dealt with by the Hon’ble Apex Court in case titled Muralidhar alias Gidda & another vs. State

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of Karnatka reported in (2014)5 SCC 730 , which read as under :-

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"10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... 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." The opinion of the Lord Russell has been followed over the years.

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11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed,

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"7...........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.

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Neutral Citation No. ( 2024:HHC:4427 )

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12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

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(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,

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(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

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(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified.

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Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed

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to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and

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(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”

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10. The Hon’ble Supreme Court in Rajesh Prasad vs. State of Bihar & another, (2022) 3 Supreme Court Cases 471,

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observed as under:

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“31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:

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31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is

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8 Neutral Citation No. ( 2024:HHC:4427 )

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held by a superior court. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir 1991 Supp (1) SCC 35

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31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows:

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31.2.1. Where the approach or reasoning of the High Court is perverse;

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(a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489]

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(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were “interested” witnesses. [State of U.P. v. Hakim Singh (1980)

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(c) Where testimony of witnesses had

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been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393]

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(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site

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Neutral Citation No. ( 2024:HHC:4427 )

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of occurrence of the crime. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297]

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(e) Where the High Court applied an unrealistic standard of “implicit proof” rather than that of “proof beyond reasonable doubt” and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99]

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(f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]

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(g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish “motive”. [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445]

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31.2.2. Where acquittal would result is gross miscarriage of justice;

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(a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on entenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502]

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(b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]”

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10 Neutral Citation No. ( 2024:HHC:4427 )

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11. In H.D. Sundara & others vs. State of Karnataka,

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(2023) 9 Supreme Court Cases 581, the Hon’ble Supreme Court has observed that the appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. The relevant portion of the above judgment is as under:

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“8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows:

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8.1. The acquittal of the accused further strengthens the presumption of innocence;

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8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

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8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record;

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8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

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11 Neutral Citation No. ( 2024:HHC:4427 )

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8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.

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9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After reappreciating the oral and documentary evidence, the appellate court must first decide whether the trial court’s view was a possible view. The appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken.”

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Thus, the law on the issue can be summarized to the

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effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be

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12 Neutral Citation No. ( 2024:HHC:4427 )

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perverse, the appellate court can interfere with the order of acquittal. Further, if two views were possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court.

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By applying the abovesaid principles in the case on hand, we are of the considered opinion that the view taken by the trial Court while acquitting the accused is a reasonable view based on the evidence on the record and the same cannot be said to be

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perverse or contrary to the material on record.

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It is a settled law that the case of the prosecution cannot be thrown away merely on the basis of the non-association of the independent witnesses, however, in the instant case the non-association of independent witnesses assumes significance. The accused was admittedly nabbed at Van Vihar at 04:30 p.m. and Van Vihar is a busy area, therefore, it cannot be said that there was any dearth of independent witnesses. HC Narayan Chand (PW-2) admitted that there were so many tourists, who were present in Van Vihar. He also admitted that SDM Office, Tehsil Office and Court of JMIC are about 150 meters from Van Vihar. The I.O. (PW-7) also admitted that at a distance of 50 meters from

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13 Neutral Citation No. ( 2024:HHC:4427 )

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Van Vihar, there are hotels, and the bus stand is about 200 meters away. Therefore, it cannot be believed that no independent witnesses were available. The case of the prosecution is that when the police party was present in Van Vihar, Manali, the accused was intercepted with the contraband in question, but the presence of the police party at Van Vihar has not been established. PW-2 HC Narayan Chand deposed that police party had gone to bazaar and subsequently they went to Van Vihar, Manali but the Investigating Officer did not state anything that the police party went to Manali bazaar also. PW-3 HC Sher Singh made the entry in daily diary report Ex.PW-3/A, qua the departure of the police party headed by ASI Daya Ram towards Manali bazaar for patrolling. Thus, it is clear that the police party went to Manali bazaar for patrolling, hence the Investigating Officer was duty bound to explain as to what made the police party to go to Van Vihar. It is not in the statement of the Investigating Officer that the police party received some secret information qua the accused with contraband in Van Vihar. Therefore, the presence of the police party at Van Vihar, Manali, at 04:30 p.m., has not been established on record. Moreover, it has also come in the evidence on record that a ticket is required to enter Van Vihar, Manali, but the Investigating Officer has specifically admitted, in his cross-examination, that no such

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14 Neutral Citation No. ( 2024:HHC:4427 )

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ticket was recovered from the possession of the accused. Therefore, the learned Trial Court had rightly held that the burden was upon the prosecution to specifically prove the presence of the

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accused in Van Vihar and the recovery of contraband in question. However, the prosecution could not establish the presence of the accused in Van Vihar, Manali, thus had failed to discharge its burden beyond the scope of all reasonable doubt.

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In view of what has been discussed hereinabove, no interference in the judgment of acquittal, rendered by the learned Trial Court, is required, as the same is the result of proper appreciation of evidence and law. The appeal, which sans merits, deserves dismissal and is accordingly dismissed.

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Pending application(s), if any, shall also stand(s)

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disposed of.

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( Tarlok Singh Chauhan ) Judge

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( Sushil Kukreja ) Judge

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4^th July, 2024 (virender)

State of Hp v. Rakesh Rana

Case brief

What is this about?

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State of Hp v. Rakesh Rana

Case brief

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