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2017 (11) TMI 778
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.... originate from the wee hours of 20.10.2009, precisely 4 a.m when the police patrol party led by Inspector/SHO Sanjeev Chauhan (PW-8), while located at a place known as Kelti Dhar noticed an Alto vehicle bearing registration No.HP-01K-0805 moving towards them from Shallang onward to Kullu. On seeing the patrol party, the driver of the vehicle stopped it, alighted therefrom and made good his escape in the adjacent apple orchard so much so that in spite of vigorous search operations by using the search 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 initiated a search of the vehicle in their presence. In course of the search, a black and red bag was found by the side of the seat of the driver and when opened the search party found black substance whic....
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....ting 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 patrol party or that either or both the accused persons were in conscious possession of the contraband claim to be seized therefrom. 8. The Trial Court in assessing the evidence adduced by the prosecution was cognizant of the legal proposition that graver the offence and severer the punishment, greater ought to be the care taken to ensure that all statutory safeguards have been scrupulously adhered to and that a heightened scrutiny of such compliance thereof is warranted. On the aspect of identification, 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 app....
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....on the ground that as this document was supposed to be prepared prior in point of time to ruqqa, it was inexplicable as to why then the name of the appellant was not mentioned in the ruqqa which was sent to the police for registration of the case. According to the Trial Court, there was also no endorsement with 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 related to the seizure claimed. Vis-à-vis the co-accused Govind Singh, the Trial Court noticed that there was no incriminating material to prove his involvement in the commission of the offence. Consequently, it acquitted the appellant and the co-accused of the charge. 9. The High Court however on a reappraisal of the evidence on record laid emphasis on the testimony of PW-1, HHC....
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....d 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 other evidence whatsoever. Mr. Marwah argued that the photographs relied upon by the prosecution as contemporaneous documents in support of the search and seizure also bely the prosecution case as none of those, though clicked with a digital camera, depict the date thereof i.e. 20.10.2009 and therefore cannot by any stretch of imagination be related thereto. The learned counsel argued that as conscious possession of the contraband is an indispensable prerequisite for conviction of the appellant on the 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....
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.... lead bullets were also recovered from the place of occurrence. In the postmortem, three bullets were extricated from the dead body. 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 the scope of the power of the High Court under Section 378 of the Code of Criminal Procedure, 1973 (for short hereafter referred to as the "Code") in dealing with an order of acquittal referred amongst others to an extract from its earlier verdict in Murugesan and others vs. State (2012) 10 SCC 383. The legal proposition as enunciated in paragraph 21 of the said ruling, as quoted hereunder, was noted: "21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup is to be found in para 42 of the ....
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....y the prosecution, though it was its case that Vijay Kumar had witnessed the occurrence. (b) Though the prosecution tried to justify the non-examination of Vijay Kumar by contending that it was his daughter who had witnessed the occurrence, even she was not adduced as a witness. (c) The testimony of PW-11, Sohan Lal and PW-12, Bharat Lal were not worthy of any credence as they conceded that they had not received any summons to appear as witness and in fact had appeared at the request of the son of the deceased. (d) PW-11, Sohan Lal was an employee of the brother of PW-13, Smt. Pushpa Devi, who was the wife of the deceased. (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 of the appellant a....
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.... to the police station and after obtaining the report from the Forensic Science Laboratory, the appellant was sent 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 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. This Court noted that the Tria....
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....ce it appeared that the place where the accused/appellant had been apprehended was not an isolated one as one house of Govind Singh, DW-2 was located nearby. This Court thus rejected the version of the prosecution that independent witnesses could not be associated as the place was desolate. In all, in view of the above inconsistencies and the deficiencies in prosecution evidence, this Court held that the possession of the contraband by the accused/appellant and seizure thereof from him was doubtful. It noted as well that 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 elaboration of the facts in the decisions cited at the Bar has been to underline the factual setting in which reversal of the orders of acquittal had been interfered with by t....
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....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 as Khekh Ram. 17. PW-1, HHC-Hira Singh, who was a member of the patrol as well as search team substantially reiterated the facts leading to the spotting of the vehicle, the escape of the driver, recovery of the contraband and the seizure thereof. Qua the aspect of identification, this witness stated that at the time of his fleeing from the spot, he could recognize him in the search light as Khekh Ram and also located him in the Court. In cross-examination however this witness stated that when the 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. Th....
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....ing him and he could thus recognize him. He denied the suggestion that he had not mentioned in the ruqqa that he could see the face of Khekh Ram. As the identification of the appellant is of determinative significance, the instant scrutiny of the evidence has been, for obvious reasons, confined chiefly to this aspect. 20. Section 20 of the 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 he had been charged, he must be proved to be in conscious possession of the contraband seized. This assumes great significance as admittedly the procedure of search of the Alto vehicle which allegedly he had been driving and the seizure of charas, the registration certificate of the vehicle and the passbook in the name of the appellant in particular had b....
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....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 rule out the possibility of use thereof by anyone of them at the relevant time. In the overall state of evidence with regard to identification, in our comprehension, the view taken by the Trial Court is overwhelmingly reasonable. To the contrary, the conclusion of the High Court on this issue seems to be dominantly guided by the recovery of the bank passbook in the name of the appellant from the vehicle and the reference of his name in the ruqqa Ext.PW8/A and the NCB form. The failure of the appellant 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 recor....
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....under: 21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "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" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence broug....