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TMI Blog2017 (11) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the authorship of the seizure memo, the arrest memo, consent memo and the NCB, no interference with the acquittal ought to have been made. The evidence of PW-4 and PW-6 was referred to for reinforcing the above assertion. The High Court in the attendant facts and circumstances, in our determination, erred in upturning the findings recorded by the Trial Court. The impugned judgment and order is thus set aside and the acquittal of the appellant is restored. This Court shares the concern expressed 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck substance which prima facie by its smell appeared to be charas. The search team also retrieved the registration certificate of the vehicle which was in the name of Ses Ram son of Shri Devi Singh as well as a bank passbook of Himachal Gramin Bank issued in the name of Khekh Ram son of Chuhru Ram, R/o village Gramang, 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 through HHC-Hira Singh for the registration thereof. In course of the investigation on 20.10.2009, the owner of the vehicle Ses Ram was summoned who disclosed that he had sold the vehicle to one Govind Singh on 03.08.2009. Govind Singh was intercepted on 20.10.2009 who in turn disclosed that on 19.10.2009 the vehicle was taken by Khekh Ram for some personal work. Subsequent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 absconding person was Khekh Ram and that he had been identified to be so by PW-1, HHC-Hira Singh and another member of the raiding party, namely, HHC-Kashmi Ram. The investigating officer deposed that the co-accused Govind Singh had disclosed on interrogation, that Khekh Ram had taken his vehicle for bringing his wife from Anni. The admission of the investigating officer, PW-8 that he did not record in the ruqqa the fact that the driver of the vehicle carrying the contraband was facing him and that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of PW-1, HHC-Hira Singh in the matter of identification of the appellant as the person who fled from the scene on seeing the patrol 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 prosecution to falsely implicate him, returned a finding that the charge against him had been proved beyond all reasonable doubt. It however reiterated that the prosecution had failed to prove the case against the co-accused Govind Singh and affirmed his acquittal. The appeal of the State was partly allowed and the appellant was convicted under Section 20 of the Act and was sentenced as mentioned hereinabove. 10. Before we move on to the analysis of the facts and the evidence on records apt it would be to deal with the rival contentions. 11. Mr. Ajay Marwah, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Prem Singh vs. State of Haryana (2013) 14 SCC 88, Krishan Chand vs. State of H.P. 2017(6) SCALE 468 and Mahinder Singh vs. State of Himachal Pradesh Criminal Appeal No.1286 of 2017 decided on 31.7.2017. . 12. Per contra, it has been assiduously argued on behalf of the respondent/State that the identification of the appellant as the driver of the vehicle carrying the contraband having been established beyond doubt and the search and seizure of the commodity having been undertaken strictly in accordance with the prescriptions of 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 challenge was to the judgment of reversal of the jurisdictional High Court whereby the appellant was convicted along with the co-accused Vishwa Bandhu under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 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) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y doubtful. (h) As per the report of the Forensic Science Laboratory, Madhuban, no nexus could be established between the bullets recovered from the dead body and the firearms allegedly recovered. (i) PW-11 and PW-12 had identified the accused including the appellant for the first time in Court. (j) The evidence of PW-11 and PW-12 was full of significant discrepancies with regard to the identity of the accused and the roles attributed to them in 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 awarding acquittal on a criminal charge was a possible one, the exercise of the appellate power of the High Court under Section 378 of the Code would remain circumscribed by the well-settled parameters noticed hereinabove. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (complainant) whereafter the person as well as the bag of the appellant was searched after making him aware of his right to have the said exercise undertaken before a Magistrate or a Gazetted Officer. This witness affirmed that on searching the bag of the appellant, charas weighing 7 kg. was detected which was seized, parceled and sealed whereafter NCB form was filled up, sample seal was taken in a separate piece of cloth and the seized contraband was taken in possession and the related memo was signed by 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s integra that an order of acquittal, if appealed against, ought not to be lightly interfered with, it is trite as well that the Appellate Court is fully empowered to review, re-appreciate and reconsider the evidence on record and to reach its own conclusions both on questions of fact and 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 restraint on the power of the Appellate Court would get attracted only if the two views are equally plausible and reasonable and not otherwise. If the view taken by the Trial Court is a possible but not a reasonable one when tested on the evidence on record and the legal principles applied, unquestionably it can and ought to be displaced by a plausible and reasonable view by the Appellate Court in furtheranc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 and that he was falsely implicated in the case. 18. PW-2, Ses Ram deposed that he was the owner of the Alto car and had on 13.08.2009 sold the same to Govind Singh. He clarified that though the sale transaction had occurred, as the vehicle had been privately financed and the loan was not repaid, the same could not be transferred in the name of Govind Singh. This witness in his cross-examination stated that after the purchase of the vehicle by Govind Singh, he had employed a Nepali, as a driver thereof. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the participation of any independent witness. The identification of the appellant to be the driver who had 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 absconding driver of the vehicle to be the appellant Khekh Ram in the search light, in cross-examination he stated to have seen along with the other members of the patrol party, his back portion. He endeavoured to improve his observation, by mentioning that he had seen also his side face from a distance of 40 to 50 yards, but admitted that Khekh Ram was not personally known to him before that incident. 21. PW-8 though was silent with regard to the identification of the fleeing driver, in cross-examination he mentioned that at the point of time when the two vehicles were face to face ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2009, some of those do not bear any date whereas the rest are dated 05.01.2008, 7.06 a.m. The prosecution has failed to offer any explanation whatsoever for this anomaly. It is thus more than apparent that the appellant has been implicated in the offence wholly due to the recovery of his bank passbook from the vehicle for which as a consequence his name was recorded in all the documents prepared in connection with the exercise undertaken. In absence of any other cogent, coherent and clinching evidence of his 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 is a common place proposition that in a criminal trial suspicion however grave cannot take the place of proof and the prosecution to succeed has to prove its case and establish the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riage 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 supplementation, it was held in affirmation of the view taken in Kali Ram v. State of H.P. 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. 69. In terms of this judgment, suspicion, howsoever grave cannot take the place of proof and the prosecution case to succeed has to be in the category of must be and not may be a distance to be covered by way of clear, cogent and unimpeachable evidence to rule out any possibility of wrongful conviction of the accused and resultant miscarriage of justice. For this, the Court has to essentially undertake an exhaustive and analytical appraisal of the evidence on record and register findings as warranted by the same. The above proposition is so we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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