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Khekh Ram Versus State of H.P.

2017 (11) TMI 778 - SUPREME COURT

Charge under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HC reversing the verdict of acquittal of the appellant by the Trial Court - seriousness of offence - Held that:- This Court concluded that the finding of innocence recorded by Trial Court was a reasonably possible view taken on the basis of the evidence and materials on record and thus the High Court ought not to have disturbed the same even if, on a re-appreciation of the evidence it was inclined to ta .....

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itted the appellant holding that the prosecution had failed to prove the charge beyond reasonable doubt. In the appeal, filed by the State, the High Court convicted and sentenced the appellant as above. The principal plea of the appellant before this Court was that the High Court had failed to appreciate that in absence of any independent witness, the evidence of the police witnesses ought to have been scrutinized with greater care and as the police witnesses had contradicted themselves about th .....

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sed by the Trial Court on the shoddy investigation conducted in the case, having regard in particular to the seriousness of the offence involved and reiterate the direction issued by it to the Superintendent of Police, Kullu to enquire into the matter to ascertain the reason for the omission/lapses in the investigation, identify the person(s) responsible therefor and the action taken in connection therewith so as to ensure against repetition of such shortcomings in future - Criminal Appeal No. 1 .....

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fter referred to as the Act ). By the impugned decision, the appellant thus stand convicted under the above provisions of the Act and has been sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of ₹ 2 lakhs, in default to suffer rigorous imprisonment for a period of one year. 2. We have heard Mr. Ajay Marwah, learned counsel for the appellant and Mr. Varinder Kumar Sharma, learned counsel for the respondent/State. 3. The skeletal facts portraying the prosecution case .....

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earch lights, he could not be apprehended. As the place was secluded, the investigating officer, PW-8 directed HHC-Hira Singh, a member of the team to scout for independent witnesses to participate in the imminent search operations. The said constable however returned after 15-20 minutes to disclose that neither any independent witness was available at that hour nor any passerby was noticeable. At this, the investigating officer associated HHC-Kashmi Ram and HHC-Hira Singh as witnesses and initi .....

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ng, PO - Shallang showing a deposit of ₹ 1,79,029/- as on 03.10.2009. The contraband on being weighed was found to be of 14.750 kgs. The bag containing the contraband was put in a cloth parcel and sealed with seal of impression T . 4. In the report under Section 173 Cr.P.C. the driver of the vehicle who fled was described to be stoutly built with height of 5 5 and aged about 30-35 years and was referred to as Khekh Ram. After the completion of seizure, ruqqa was sent to the police station .....

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n arrested on 06.03.2010 and on completion of the investigation following the receipt of the report of the chemical analysis, proceedings under Sections 20 and 29 of the Act was instituted against the appellant and Govind Singh. The accused persons having denied the charge, they were put to trial. 5. The prosecution examined in all eight witnesses including the investigating officer. In course of their statements recorded under Section 313 Cr.P.C., the appellant and the co-accused stood by the d .....

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vidence, expedient it would be to briefly note the findings of the two forums before adverting to the rival assertions made in this appeal. Noticeably, in essence, whereas it was canvassed on behalf of the prosecution that the materials on record amply establish the charge against the accused persons, it was urged on behalf of the defence that there was no evidence worth the name either to identify the appellant Khekh Ram to be the driver of the offending vehicle who fled on seeing the police pa .....

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cation, it dealt in particular with the testimony of HHC-Hira Singh, PW-1 who though in his examination-in-chief stated that he could recognize the person fleeing from the vehicle, in the search light as Khekh Ram, he admitted in his cross-examination that prior to the incident, the appellant was not personally known to him and that he had seen him on that occasion from a distance of 40 to 50 yards. It also recorded that the investigating officer, PW-8 had not stated in his deposition that the a .....

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at he accordingly could recognize him was noted. The Trial Court thus discarded the evidence of these two witnesses to connect the appellant with the offence. It was also mentioned by the Trial Court that if the seizure memo, Ext.PW1/A in fact had been prepared by the investigating officer at the spot, the same ought to have contained the above facts bearing on the identification of the appellant and that absence thereof and the omission to refer the name of the appellant in the ruqqa Ext.PW8/A .....

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xt.PW3/A, the facts mentioned in the recovery memo Ext.PW1/A were not referred to and held that either the identification of the appellant was not available to the investigating agency or was subsequently introduced by the investigating officer in order to connect him with the commission of the offence. The Trial Court recorded as well that no test identification parade had been conducted qua the appellant and also marked the absence of any claim by PW-1, HHC-Hira Singh that on the arrest of the .....

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regard to registration of the FIR on the ruqqa Ext.PW8/A. The Trial Court viewed with disapproval as well, the photographs Ex. PW-8/B-1 to Ex. PW-8/B-8 claimed to have been taken by the investigating officer with his digital camera, of the car and the seized article, as some of those did not bear any date and the rest were of 05.01.2008 at 7.06 a.m., different from the date of seizure of the contraband i.e. 20.10.2009. In the estimate of the Trial Court, these photographs thus could not be relat .....

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rol party. Decisive weight was also extended to the recovery of the passbook of the appellant from the chamber of the dashboard of the vehicle. It recorded that the name of the appellant was mentioned both in the ruqqa Ex. PW-8/A and the NCB form which according to it had been missed by the Trial Court. The High Court noted that the appellant had failed to offer any explanation about the presence of his passbook in the offending vehicle and by observing that there was no reason for the prosecuti .....

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o deal with the rival contentions. 11. Mr. Ajay Marwah, learned counsel for the appellant has insistently argued that the prosecution having utterly failed to establish the identity of the appellant with the driver of the vehicle from which the contraband had been allegedly seized, the view taken by the Trial Court on the basis of the evidence both oral and documentary being flawless and reasonable, the High Court had erred in law and on facts in reversing the same on grounds patently untenable. .....

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icle who had fled on seeing the patrol party, the recovery of his passbook from the car per se cannot prove beyond reasonable doubt his culpability. The learned counsel maintained that an overall consideration of the oral and documentary evidence adduced by the prosecution would unerringly indicate that the documents with regard to search and seizure had not been prepared at the spot but subsequently, to falsely foist the prosecution on the appellant only on the basis of his passbook and no othe .....

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he charge framed against him, absence of his identification is destructive of the substratum of the prosecution case. According to him, as the view taken by the Trial Court is not only formidably plausible but also irrefutably reasonable, the High Court had grossly erred in reversing the same by merely substituting its view, unsupported by the material available. In buttressal of his pleas, the learned counsel has placed reliance on the decisions of this Court in Prem Singh vs. State of Haryana .....

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law, his conviction is unassailable and ought to be affirmed. According to the learned counsel, the inferences drawn by the Trial Court are not borne out by the materials on record and therefore have been rightly repudiated in the impugned judgment and order. 13. It would next be expedient to briefly deal with the authorities cited at the Bar to recapitulate the judicial enunciation of the scope of an Appellate Court to reverse an order of acquittal in a criminal trial. In Prem Singh1, the chal .....

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secution case was on 26.11.1993 at about 6.30/6.45 a.m. gunned down by some persons while he was on his morning walk. The incident was reported to the brother of the deceased PW-16, Sohan Lal by one Vijay Kumar, a neighbour. On receipt of the information, PW-16 along with his nephew Navneet Kumar and Vijay Kumar went to the spot and found the deceased lying in a pool of blood. He was removed in injured condition to the Government Hospital where he was declared to have been brought dead. The FIR .....

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The investigating agency forwarded the firearms recovered along with the bullets retrieved from the dead body for forensic examination. Charge was framed against the accused persons on the provisions of law under which charge-sheet had been submitted. At the end of the trial however, all the accused persons were acquitted. In the appeal by the State, the High Court, as noted hereinabove, reversed the acquittal qua the appellant and the co-accused Vishwa Bandhu. This Court while reflecting on th .....

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ution since Sheo Swarup is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below: (SCC p.432) 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) .....

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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 eve .....

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ourt next analyzed the evidence adduced by the prosecution and the scrutiny thereof by the Trial Court in recording acquittal of the appellant and the co-accused. The fatal anomalies and deficiencies in the prosecution case, as noticed, by the Trial Court were enumerated thus: (a) Vijay Kumar who had reported about the incident to PW-16, Sohan Lal had not been examined by the prosecution, though it was its case that Vijay Kumar had witnessed the occurrence. (b) Though the prosecution tried to ju .....

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ed. (e) Though PW-11 and PW-12 claimed that they knew the deceased from before and that the house of the deceased was very near to the place of occurrence, they did neither visit the house of the deceased nor inform the family members of the deceased nor did they report the incident to the police. (f)They instead roamed about aimlessly in the streets of Karnal until they came to the place of occurrence when their statements were recorded by the police. (g) The recovery of weapons at the instance .....

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n the perpetration of the crime. In the above overwhelming factual premise, this Court concluded that the finding of innocence recorded by Trial Court was a reasonably possible view taken on the basis of the evidence and materials on record and thus the High Court ought not to have disturbed the same even if, on a re-appreciation of the evidence it was inclined to take a different view. This Court reiterated the oft quoted fundamental proposition that so long the view taken by the Trial Court in .....

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he Narcotic Drugs and Psychotropic Substances, Act, 1985 (for short hereafter referred to as the NDPS Act ) and sentencing him to undergo rigorous imprisonment for a period of 20 years and to pay fine of ₹ 2,00,000/- with default stipulation, by reversing the acquittal recorded by the Trial Court. The prosecution case, as noted in brief was that on 27.11.2010 at about 5 a.m. while the patrol party including the complainant-SHO Gurbachan Singh, PW-6 was on duty at the Patarna Bridge, a pers .....

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ent up for trial. Prosecution examined six witnesses. In course of his statement under Section 313 Cr.P.C. the appellant denied recovery of charas from him. He further claimed to be innocent and alleged that he had been falsely implicated. He also examined two witnesses Narain Singh and Govind Singh in defence. The Trial Court acquitted the appellant holding that the prosecution had failed to prove the charge beyond reasonable doubt. In the appeal, filed by the State, the High Court convicted an .....

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was referred to for reinforcing the above assertion. This Court noted that the Trial Court in acquitting the appellant had laid emphasis on two aspects, namely, no independent witness was examined and fatal contradictions in the testimonies of PW-4 and PW-6. This Court, analyzing the testimony of PW-4, Umesh Kumar recorded that this witness had stated that as the place of the occurrence was isolated having no habitation nearby, he was associated in the investigation by PW-6, Gurbachan (complaina .....

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him as well as Head Constable, Tain Singh. This witness disclosed further that the party was at the spot for about 1 hour 40 minutes and it was dark at the relevant point of time. Further they did neither have any search light nor the lights of the vehicle had been switched on. He expressed ignorance as to in whose handwriting the consent memo was written. He however stated that the search memo, seizure memo, arrest memo, sample seal and the NCB Form were all in the hand of SHO, Gurbachan Singh .....

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ch, seizure memo, noting on the sample seal, memo of personal search was not in his hands but was got written by him from one of the members of the police party under his dictation. This Court noticed the contradiction on the above aspects in the evidence of PW-4 and PW-6 and observed that those could not be glossed over as minor, more particularly in the background of the allegation of false implication made by the accused/appellant. It held the view, that from the evidence it appeared that the .....

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hat though there was a reference of recovery of knife at the time of opening of the bag allegedly carried by the accused/appellant, it did not find place in the seizure memo which further created doubt in the prosecution case. The conviction was set aside holding that the High Court had failed to take note of the contradictions in the evidence in the proper perspective and had failed thereby to appreciate that harsher is the punishment, the stricter ought to be the proof of the charge. 15. The e .....

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on law. As a corollary, the Appellate Court would be within its jurisdiction and authority to dislodge an acquittal on sound, cogent and persuasive reasons based on the recorded facts and the law applicable. If only when the view taken by the Trial Court in ordering acquittal is an equally plausible and reasonable one that the Appellate Court would not readily substitute the same by another view available to it, on its independent appraisal of the materials on record. This legally acknowledged r .....

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imperative that a guilty ought not to be let of casually lest justice is a casualty. 16. Having regard to the two irreconcilable views adopted by the Courts below, it is felt expedient to revisit the essential aspects of the evidence bearing in particular on the identification of the appellant as the possessor and carrier of the contraband. The FIR registered on 20.10.2009 discloses PW-8, Inspector Sanjeev Chauhan to be the complainant/informant. It sets out that on 20.10.2009 at about 4 a.m. t .....

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h was seized and sealed in presence of the members of the patrol team, namely, HHC-Kashmi Ram and HHC-Hira Singh (PW-1). That in course of the search a registration certificate in the name of Ses Ram s/o Devi Ram and a passbook of Himachal Gramin Bank, Kullu in the name of the appellant was recovered was stated as well. It was mentioned that the driver of the vehicle, who had run away after stopping the same, was well built with a height of 5 5 and aged about 30-35 years and the person was named .....

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he search light was focused on the person, the police party noticed the back portion of his and he claimed further to have seen his side face from a distance of 40 to 50 yards. He admitted as well that Khekh Ram was not personally known to him before the incident. This witness testified that photographs of the bag lying on the seat of the vehicle were taken at the spot. He denied the suggestion that Khekh Ram was lifted from his house in the night of 20.10.2009 merely on the basis of suspicion a .....

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ereof. 19. PW-8, Inspector Sanjeev Chauhan, the Investigating Officer, on oath reiterated his version in the FIR and stated in particular that after packing the bag containing the contraband with a cloth, he sealed the same with nine seals of T and thereafter filled the NCB forms, amongst others Ext.PW4/E. He drew up also the seizure memo of the car, the keys, the registration certificate, the passbook and the charas vide Ext.PW1/A. He stated to have prepared the ruqqa Ext.PW8/A and handed over .....

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to the police station and after the disclosures made by them about the sale of the vehicle and the temporary entrustment by Govind Singh of the vehicle to Khekh Ram, he arrested the appellant on 21.10.2009 at 4 p.m. He stated that after the arrest of the appellant, he prepared a special report, Ext.PW-3/A. In his examination-in-chief though this witness had reiterated his narration in the FIR that the driver of the Alto car on being stopped, jumped therefrom and fled, he did not claim to have id .....

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Act under which the appellant had been charged prescribes for punishment for contravention in relation to cannabis plant and cannabis. Section 29 of the Act ordains the punishment for abetment of and criminal conspiracy for commission of an offence punishable under Chapter IV. The gravamen of the charge against the appellant is possession and transportation of charas as punishable under the above provisions. It cannot be gainsaid thus, that the appellant to be guilty of the offence with which h .....

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absconded on seeing the patrol party therefore is the sine qua non for the proof of the charge leveled against him. The materials on record propel three pieces of evidence in this regard, firstly the testimony of PW-1 and PW-8, secondly the evidence of Govind Singh according to whom the vehicle had been taken by the appellant for bringing his wife from Anni and most importantly the recovery of the bank passbook in his name from the vehicle. To recall, though PW-1 claimed to have identified the .....

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xamination he mentioned that at the point of time when the two vehicles were face to face, the driver of the Alto car was facing towards the police vehicle and he could recognize him. This witness however did not claim to have identified the driver to be the appellant, Khekh Ram at that point of time. The testimony of PW-1 and PW-8 taken together by itself is not adequately persuasive to unimpeachably establish the identity of the driver of the Alto vehicle to be Khekh Ram, the appellant. In abs .....

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by the police party, the recovery of his passbook therefrom, albeit a factor weighing against him, cannot as well clinch by itself the issue of his identification in favour of the prosecution. With the evidence forthcoming that the registered owner of the vehicle was Ses Ram (PW-2) who deposed to have sold it to Govind Singh but the registration thereof had not been transferred and further that the vehicle had been temporarily lent to the appellant for his personal work, does not irrefutably ru .....

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lant to explain the presence of his bank passbook in the car also weighed considerably with the High Court against him. 22. The photographs, claimed by the prosecution to have been taken by the Investigating Officer, PW-8 with his digital camera to correlate the seized article with the one captured therein, to state the least, wholly lack in credence and persuasion. Not only, as expected, the photographs with the kind of camera used, do not record the date of the procedure i.e. 20.10.2009, some .....

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is identification as the driver of the Alto car carrying the contraband, this document to reiterate, cannot be acted in isolation to base his conviction. Having regard to the materials on record, it is clear that his arrest in connection with this case was due to the recovery of his bank passbook from the car and not on the basis of his spot identification. The prosecution, in our view, has failed to adduce conclusive and consistent evidence to bring home the charge against the appellant. 23. It .....

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ted thereon as hereunder: 66. It is well entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well established cannon of criminal justice is "fouler the crime higher the p .....

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quot;will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be&quo .....

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ive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. [Emphasis laid by the Court] 68. In supplementati .....

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