Criminal Misc. No. 407-MA of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Criminal Misc. No. 407-MA of 2009 Date of Decision: 17.8.2010 State of Punjab ..Applicant-Appellant Versus Mahesh Pal and others ..Respondents CORAM:- HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE H.S.BHALLA Present:- Mr. S.S.Bhinder, Additional Advocate General, Punjab for the applicant-appellant. Respondent No.3 Paramjit Singh @ Pamma produced from jail. H.S.BHALLA, J. Through this application filed under Section 378 (3) of the Code of Criminal Procedure, the appellant-State has sought permission to file an appeal against judgment dated 23.4.2009 passed by the Judge, Special Court, Ludhiana, vide which he acquitted the accused-respondents for an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “ the Act”) The detailed facts have been recapitulated in the judgment of the learned Special Court and in order to avoid repetition, they are not being reproduced in the judgment herein. That apart, the facts discussed by the learned Special Court are not being disputed by the parties in any manner. Criminal Misc. No. 407-MA of 2009 2 Accused were charge sheeted under Sections 15 of the Act, to which they did not plead guilty and claimed trial. Prosecution examined as many as seven witnesses and thereafter closed its evidence. We have heard learned counsel appearing for the appellant- State as also learned counsel appearing for the accused-respondents at length and with their able assistance have also gone through the evidence of the prosecution and the findings recorded by the learned Judge, Special Court, Ludhiana, meticulously. Learned Additional Advocate General appearing for the appellant-State has assiduously argued that the learned court below committed a grave error in acquitting the accused respondents in not taking into consideration the testimony of the witnesses produced by the prosecution in its correct perspective. Learned State counsel has further contended that some minor discrepancies are bound to occur when the witnesses do depose truthfully after a lapse of considerable time, but the learned court below wrongly held that there were material contradictions in the statements of the prosecution witnesses which go to the root of the case. Learned counsel further pointed out that approach of the learned Special Judge in acquitting the accused respondents on the ground that independent witness, namely, Karnail Singh, who was already with the raiding party was given up being won over by the accused respondents is not justified and thereby rendering the whole prosecution story doubtful. We have considered the submissions raised by the learned Additional Advocate General appearing for the appellant-State. We are not convinced to accept the submissions made by the learned counsel. The contentions raised by the learned State counsel, in our considered view, have been dealt with by the learned Special Judge effectively and comprehensively on the strength of evidence available on the record giving Criminal Misc. No. 407-MA of 2009 3 sound reasoning therein. However in order to examine the finding recorded the learned court below in its correct perspective, we would like to refer to some important discrepancies occurring in the statements of the witnesses with regard to use of vehicle bearing registration No.PB-10BP-5555 by the Investigating Officer; composition of raiding party, presence of the Deputy Superintendent of Police Satbir Singh Atwal (PW-6) at the spot and non- examination of independent witness, namely, Karnail Singh. So far as use of said vehicle at the time of raid by police party is concerned, it has been established on the record beyond reasonable doubt that this vehicle was not impounded by police in any case. As per the record maintained by the DTO Office, Ludhiana, the vehicle in question stands registered in the name of Pritam Singh Walia. He stepped into the witness box as DW-4 and deposed that this vehicle was not taken into possession in any case nor was taken by ASI Ram Ji Dass and ASI Balwinder Singh. He further categorically deposed that the vehicle was in his custody on 18.8.2006. It has not been explained by the Investigating Officer as to how this vehicle came into their possession. That apart, we find from the record that there is no reference of the vehicle that police party is going for checking at Khasi Kalan through this vehicle. In such like circumstances, observation made by the learned Special Judge that availability of this vehicle with the police party is doubtful appears to be correct. As regards composition of raiding party by the Investigating Officer, it may be mentioned here that the testimony of the star witnesses, as referred to above, are inconsistent as to how many members were there in the raiding party. Record clearly spells out that when ASI Ram Ji Dass left the Police Station, he was accompanied by Constable Swaran Singh and Constable Amarjit Singh whereas ruqa shows that ASI Ram Ji Dass was accompanied by ASI Balwinder Singh, Head Constable Rajinder Criminal Misc. No. 407-MA of 2009 4 Kumar, Head Constable Satnam Singh, Constable Sarwan Singh No.2792 and SPO Balwinder Kumar. In such like circumstances, reasoning given by the learned Special Judge that the Investigating Officer has not been able to explain when ASI Balwinder Singh, Head Constable Rajinder Kumar, Head Constable Singh, Constable Sarwan Singh No. 2792 and SPO Balwinder Kumar had joined the raiding party can not at all be said to be unjustified. We have also scanned the testimony of DSP Satbir Singh Atwal (PW-6) and find that he has not given the answers in a proper manner. He replied most of the questions that he does not remember and thereby rendering his presence at the spot doubtful. In such like circumstances, we are of the view that the learned Special Judge has rightly observed that the conduct of the witness is not above board and his presence at the spot is considered to be doubtful. So far as non-examination of independent witness, namely, Karnail Singh, who was already with the raiding party is concerned, this court is of the view that even if, as per the prosecution, he was given up as having been won over by the accused, still it was necessary for the prosecution to produce and examine such a witness so as to elicit the entire episode before the court. The testimony of the police official witnesses, unless they are corroborated by some independent witnesses, in our considered view, strike at the root of the prosecution case and in such like circumstances, approach of the learned Special Judge that the presence of the independent witness at the spot is doubtful can not at all be said to be erroneous, which may warrant interference by this court. That apart, reasons for the finding recorded by the learned Special Judge on other material particulars are not shown, in any manner, to be illegal or perverse. We are further of the view that even if two views are possible, there is no ground to set aside the well reasoned judgment of acquittal Criminal Misc. No. 407-MA of 2009 5 passed by the learned Special Judge. The Scope of appeal under section 378, Code of Criminal Procedure, is wide enough to allow the appellate court to re-appreciate the evidence and come to an independent conclusion. However, there are several cases in which the Hon'ble Supreme Court has made it clear that the courts must be careful in reversing the judgment or order of acquittal and that the order of acquittal should not be interfered with merely because another view than the one taken by the trial court is possible. In Shingara Singh Versus State of Haryana and another with Subha Singh Versus State of Haryana and others, reported in AIR 2004 Supreme Court 124 : (2004 Cri LJ 828), it has been held that “ where two views are reasonably possible on the basis of evidence on record, the one that favours the accused must be accepted. It was also held that in any event in a case of acquittal, if the view of the trial court is possible, reasonable view on the basis of evidence on record, interference by the High court may not be justified.” In C. Antony V. K.G. Raghavan Nair reported in AIR 2003 Supreme Court 182: (2003 Cri LJ 411), the Hon'ble Supreme Court has held that “though the appellate court has full power to re-appreciate evidence but without coming to a definite conclusion that findings by the trial court are perverse, it can not substitute the findings of the trial court by taking a totally different perspective and convict the accused. When such is the possible in case of appeal against acquittal, stronger grounds are needed to interfere with the order of acquittal by exercising the power of revision. In the light of what has been discussed above, we find no ground to interfere with the judgment of acquittal dated 23.4.2009 passed by the Judge, Special Court, Ludhiana. Accordingly, leave to appeal sought by the appellant-State through the instant application moved under Criminal Misc. No. 407-MA of 2009 6 Section 378 (4), Code of Criminal Procedure, is declined. ( H.S.BHALLA ) JUDGE 17.8.2010 ( MEHTAB S. GILL ) VK JUDGE