Khekh Ram vs State Of H.P.

3. The skeletal facts portraying the prosecution case 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. 3 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 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 Rs.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 4 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 thereto, the appellant, Khekh Ram was arrested on 21.10.2009 while he was driving another vehicle. Govind Singh was later on 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 denial of the 5 charge and alleged false implication. No defence evidence was however adduced.

6. The Trial Court on an analysis of the evidence on record acquitted both the accused persons. On appeal being filed by the State, as stated hereinabove, the High Court reversed the acquittal qua the appellant only while maintaining the exoneration of the co-accused Govind Singh.

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 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. 7 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 appellant in the ruqqa Ext.PW8/A and the special report Ext.PW3/A did bely as well the claim of his identification by the police party. It was of the view that as evident from the ruqqa Ext.PW8/A, the name of the appellant got mentioned therein on the basis of his passbook recovered from the vehicle. In the face of these anomalies, the Trial Court also concluded that the recovery memo Ext.PW1/A had not been prepared at the spot as claimed by the investigating officer. It also observed in this regard that in the special report Ext.PW3/A, the facts mentioned in the recovery memo 8 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 appellant on 21.10.2009, he had identified him as the person who had fled from the spot. It discarded as well the NCB Form, Ext.PW4/E (in which the name of the appellant was mentioned), 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 9 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-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 10 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.

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 Section 302 read with Section 34 of the Indian Penal Code (for short hereafter referred to as the “IPC”) and sentenced to undergo rigorous imprisonment for life. The appellant and the aforenamed co-accused had been acquitted by the Trial Court. All the seven accused persons were acquitted of the charge of murder of Siri Krishan who as per the prosecution 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. 14 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 was registered and on the completion of the investigation, charge-sheet was laid against the appellant and others under Sections 120-B, 148, 302 read with Section 149 IPC and Section 25 of the Arms Act, 1959. The investigation amongst others led to the recovery of firearms on the disclosure of the appellant and co-accused Ballu. Further, several empty cartridges and 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 15 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. State4. The legal proposition as enunciated in paragraph 21 of the said ruling, as quoted hereunder, was noted:

14. This Court in Krishan Chand2, was seized with the impugnment of the judgment of the territorial High Court convicting the appellant under Section 30 of the 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 Rs. 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 person was seen coming with a rucksack on his back. On seeing the police party, he tried to flee but was apprehended and he disclosed his name to be Krishan Chand. His bag was searched which revealed some black substance which appeared to be charas. The contraband on being weighed was found to be of 7 kgs. It was seized and sealed. The appellant was arrested. Ruqqa 21 was prepared and was sent 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.

25. 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 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. The Superintendent of Police, Kullu would complete the inquiry and submit a report to this Court within a period of three months herefrom. The appeal is 39 allowed. The appellant be released from custody if not required in connection with any other case.

NOVEMBER 10, 2017.