State v. Tule Ram

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.A. No. : 176 of 2012

Reserved on : 15.12.2023

Decided on : 29.12.2023

State of Himachal Pradesh.

...…Appellant.

Versus

Tule Ram.

….…Respondent.

Coram

Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No

For the appellant : Mr. Navlesh Verma and Ms.

Sharmila Patial, Additional

Advocate Generals.

For the respondent : Ms. Sheetal Vyas, Advocate.

Satyen Vaidya, Judge

By way of instant appeal State of Himachal Pradesh has questioned judgment of acquittal dated

Whether reporters of the local papers may be allowed to see the judgment?

14.12.2011, passed by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahar, H.P., in NDPS Act Case No. 18 of 2010.

2.

Respondent was allegedly apprehended with 5 Kilograms of Charas on 23.02.2010, at about 5:30 AM at place Kandadhar within the jurisdiction of Police Station Anni, District Kullu, H.P.

3.

The case as set up by the prosecution was that on 23.02.2010, PW-10, ASI Rattan Chand alongwith PW-3, HC Pushp Dev, PW-4, C. Mohinder Singh and HHC Kashmi Ram, had laid 'Nakka'(Picket) near place Kandadhar in Tehsil Anni, District Kullu H.P. At about 5:45 AM, respondent was sighted by the police with a yellow colored bag in his right hand. The police officials approached the respondent, who got perplexed. The police informed the respondent that they suspected him to be in possession of some contraband and for such purpose a search of his person was required. Respondent was also afforded option to get himself searched in presence of a Magistrate or a Gazetted Officer. Respondent offered

his search to be made by the police official. A search was accordingly conducted and 5 Kilograms of 'Charas' was recovered from yellow colored bag carried by the respondent.

4.

The recovered contraband was seized by keeping the same in a sealed cloth parcel. The facsimile of the seal was preserved. 'Rukka' was prepared and sent to police station for registration of FIR. The FIR was registered. Respondent was formally arrested.

5.

Respondent alongwith contraband and allied documents was forwarded to SHO, Police Station Anni, District Kullu, H.P. The SHO, after conducting resealing proceedings deposited the seized contraband alongwith collected evidence in the 'Malkhana' of Police Station. The contraband was sent for chemical analysis and was found to be sample of 'Charas'.

6.

On completion of investigation, report under Section 173 of Cr.P.C. was filed. Respondent was charged for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances, Act ( for

short "ND&PS" Act). Prosecution examined total ten witnesses besides proving on record various documents evidencing the conduct of the investigation.

7.

Respondent was examined under Section 313 of Cr.P.C. He examined two defence witnesses.

8.

Learned Trial Court acquitted respondent of all charges after coming to the conclusion that the charges against the respondent were not proved.

9.

We have heard learned counsel for the parties and have also gone through the entire record carefully.

¶10Learned Additional Advocate General has contended that the impugned judgment suffers from illegality and perversity as the respondent has been given benefit of such discrepancies in the prosecution evidence which were of a very minor nature. It has also been contended that the learned Trial Court has erred in disbelieving the prosecution story on the ground of non-association of independent witnesses.

¶11On the other hand, learned counsel for the appellant has supported the impugned judgment by pointing out the discrepancies in the prosecution evidence, which according to him, cannot be brushed aside by any stretch of imagination.

¶12The time of apprehension of respondent is stated to be 5:45 AM and the date was 23.02.2010. The police officials, namely, ASI Rattan Chand (PW-10), HC Pushp Dev (PW-3) and C. Mohinder Kumar (PW-4) alongwith HHC Kashmi Ram only were stated to be present on the spot.

¶13It is more than settled that a case of chance recovery under Section 20 of the ND&PS Act will not fail merely for non-association of independent witnesses. There is no legal requirement to associate independent witnesses. However, in such cases the courts are obligated to be more cautious in examining the evidence rendered by Police witnesses. In case the evidence of Police witnesses inspires confidence, it can be relied upon for recording conviction against the accused.

¶14In Pramod Kumar Vs. State (Government of NCT of Delhi) (2013) 6 SCC 588, Hon'ble Supreme Court has held as under:- "13. This Court, after referring to State of U.P. v. Anil Singh, State, Govt. of NCT of Delhi v. Sunil and another and Ramjee Rai and others v. State of Bihar, has laid down recently in Kashmiri Lal v. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence."

15.

In Sathyan Vs. State of Kerala 2023, INSC 703, the legal position has been reiterated as under:- "22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found

to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned and the same shall stand on firm ground…."

¶16Learned Trial Court, after analyzing the facts of the case at the touch stone of aforesaid principle has doubted the prosecution story.

¶17Prosecution examined PW-10, ASI Rattan Chand, PW-3, HC Pushp Dev and PW-4, C. Mohinder Singh, as spot witnesses. All these witnesses stated that at time when respondent was apprehended, there was none around for association as independent witness. They also stated that HHC Kashmi Ram, was sent in search of independent witnesses after apprehension of the respondent, but he returned back after fifteen minutes without getting any help.

¶18As noticed above, in the month of February, it is still dark and seclusion at 5:45 AM, that too, in a rural area. Hence, it was not unusual that except for police officials none else was available on spot. The question, however, remains, as to whether, the investigating officer had opportunity to call the

independent witnesses and had made sufficient efforts for the same for the purpose of lending credence to the investigation proceedings.

¶19Learned Trial Court has drawn an inference against prosecution on account of the fact that the 'Nakka' had been laid by the investigating officer at about 3:00 AM and he could have easily made efforts to associate independent witnesses before actual apprehension of the respondent. It has also been taken into consideration that there was no evidence regarding any attempt made by HHC Kashmi Ram to search for independent witnesses. Be that as it may, since, the non-association of independent witnesses by itself cannot be said to be sufficient to defeat the prosecution case, such fact has to be appreciated in light of other material on record to find credence in the version put forth by police witnesses.

¶20The circumstance that has weighed with learned Trial Court to doubt the statements of police witnesses is the manner in which the investigation has been conducted. It has been found that though

as per spot witnesses, the respondent was sighted with a yellow colored bag in his hand and the bag was suspected of containing some contraband, an attempt was made to comply with the provisions of Section 50 of the ND&PS Act, by affording an opportunity to the respondent to get himself searched in presence of either a Magistrate or a Gazetted Officer. Learned Trial Court has made reference to the contents of consent memo Ext. PW3/A, whereby an option was afforded to respondent to get the search conducted in presence of a Magistrate or a Gazetted Officer. In memo Ext. PW-3/A, admittedly, no reference has been made to any bag being carried by the respondent. It being so, learned Trial Court has drawn an inference that in case the respondent was sighted with a bag in his hand and the very first document prepared by the investigating officer was Ext. PW3/A, it could not have escaped from the notice of investigating officer to make mention of the bag being carried by respondent in memo Ext. PW-3/A.

¶21We have gone through the statements of prosecution witnesses. PW-10, ASI Rattan Chand, has categorically deposed as under in his examination-in-chief:- "Accused was told that the police has suspicion that in the bag which he was carrying in his right hand, there could have been some contraband substance and for this, his personal search was to be effected. He was further told that if he so required, his personal search could have been taken in the presence of Magistrate or gazette Officer."

¶22Thus, the investigating officer (PW-10) has categorically deposed that respondent was informed about the suspicion of police in respect of bag being carried by him in his right hand. In case, the investigating officer had apprehension regarding carriage of some contraband in the bag held by respondent, there was no requirement to afford the option to the respondent to be searched either in front of the Magistrate or a Gazetted Officer and if the bag was clearly visible in the hand of respondent, the omission to mention such a material fact in memo Ext. PW3/A, cannot be said to be a minor

discrepancy. We, therefore, have no hesitation to concur with learned Trial Court in so far as the notice on aforesaid omission is concerned.

¶23Learned Trial Court has also taken into consideration another discrepancy in prosecution evidence. In his cross-examination, PW-3 HC Pushp Dev, has clearly admitted that before carrying out the search of the bag carried by respondent, his person was searched by the investigating officer. To the contrary, PW-10, ASI Rattan Chand, has stated that it was the bag of respondent which was searched in the first instance. Learned trial court also cannot be faulted for having weighed such a contradictory statement to the benefit of accused.

¶24Noticeably, the seizure memo Ext. PW3/D, 'Rukka' Ext. PW4/A and FIR Ext. PW8/C, have no mention about the personal search of the respondent. These documents refer only to the search of the bag carried by the respondent. The aforesaid omission in Ext. PW3/A further gains importance for the reason that in case the personal search of respondent was

not required, why a memo in compliance to provisions of Section 50 of the ND&PS Act, was prepared.

¶25In above background we have found un-filled gaps in the prosecution case which gives reasons to doubt its veracity.

¶26It is more than settled that in appeal against acquittal, no interference is called for in case the view taken by learned trial Court is a possible one and its findings do not suffer from perversity. The accused always has a benefit of presumption of being innocent till proof of charges against him beyond reasonable doubt. The acquittal by the learned trial Court doubles the strength of such presumption.

¶27In Chandrappa and others Vs. State of Karnataka (2007) 4 SCC 415, it has been observed as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts 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 emphasize 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 available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

¶28In State of Rajasthan Vs. Kistoora Ram, 2022 SCC Online SC 984, the Hon'ble Supreme Court has observed as under:

"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."

¶29Similar reiteration of law can be found in Ravi Sharma vs. State (Government of NCT of Delhi) and another (2022) 8 SCC 536 as under.

"8. Before venturing into the merits of the case, we would like to reiterate the scope of Section 378 of the Code of Criminal Procedure (for short 'Cr.P.C.') while deciding an appeal by the High Court, as the position of law is rather settled. We would like to quote the relevant portion of a recent judgment of this Court in Jafarudheen and Others v. State of Kerala (2022) 8 SCC 440 as follows: (SCC p. 454, para 25)

¶25While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of

the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

¶9This Court in the aforesaid judgment has noted the following decision while laying down the law: (Jafarudheen case, SCC pp. 454-62, paras 26-27)

"Precedents:

¶26Mohan vs. State of Karnataka, (2022) 12 SCC 619 as hereunder: (SCC paras 20-23) '20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with advantage of having seen witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

¶21Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity, nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial

court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

¶22At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

¶23This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166: (SCC pp. 182-85, para 14).

14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: [Babu v. State of Kerala, [(2010) 9 SCC 189, SCC p.199)

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/ inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so

outrageously defies logic as to suffer from vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501], Arulvelu v. State, [(2009) 10 SCC 206] and Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636])."

It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, conclusions would not be treated as perverse, and the findings would not be interfered with.

14.3. In the recent decision of Vijay Mohan Singh v. State of Karnataka, [(2019) 5 SCC 436], this Court again had an occasion to consider the scope of Section 378 CrPC and interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under: (Vijay Mohan Singh case, SCC pp. 447-49) "31. An identical question came to be considered before this Court in Umedbhai Jadavbhai v. State of Gujarat, [(1978) 1 SCC 228]. In the case before this Court, the High

Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting accused. Confirming judgment of the High Court, this Court observed and held in para 10 as under: Umedbhai Jadavbhai case, SCC p. 233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala, [(1998) 5 SCC 412], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal

passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p.416)

'8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the

other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala, [(1999) 3 SCC 309], after observing that though there is some substance in grievance of learned counsel appearing on behalf of the accused that High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding testimony of the eyewitnesses were not at all sound. This

Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P., [AIR 1955 SC 807], in para 5, this Court observed and held as under: (AIR pp. 809-10)

"5. It has been argued by the learned counsel for appellant that the judgment of the trial court being one of acquittal, High Court should not have set it aside on mere appreciation of evidence led on behalf of the prosecution unless it came to conclusion that judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to riders that the presumption of innocence with which accused person starts in the trial court continues even up to appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [1951 SCC 1207]; Wilayat Khan v. State of U.P. [1951 SCC 898]. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.'

31.4. In K. Gopal Reddy v. State of A.P., [(1979) 1 SCC 355], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

¶27N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: (SCC pp. 695-99, paras 20-21 & 23-24)

'20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, [(2007) 4 SCC 415] has laid down the general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432)

"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate 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 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 every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured his acquittal, presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on basis of evidence on record, the appellate court should

not disturb the finding of acquittal recorded by the trial court."

¶21Further in judgment in Murugesan v. State, [(2012) 10 SCC 383] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction.

xxx xxx xxx

¶23Further, in Hakeem Khan v. State of M.P., [(2017) 5 SCC 719] this Court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23)

"9. Having heard the learned counsel for the parties, we are of the view that the trial court's

judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to

7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for respondent may be right in stating that the trial court went overboard in stating that the complainant party was aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."

¶24By applying abovesaid principles and the evidence on record

in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to appellant at

5.45 p.m. recordings were made and appellant was not tested by PW 11 till 7.00 p.m."

¶30Keeping in view the aforesaid exposition of law as also the facts of the case, the view taken by learned Special Judge cannot be said to be illegal or perverse. It is a possible view borne from the material on record and this Court finds no reason to interfere therewith.

¶31In light of the above discussion, there is no merit in the instant appeal and the same is accordingly dismissed. Consequently, the impugned judgment dated 14.12.2011, passed by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P, in NDPS Act Case No. 18 of 2010, is affirmed.

¶32The respondent is directed to execute personal bond in sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the Registrar (Judicial) of this Court in terms of provisions of Section 437-A Cr.P.C.

¶33The appeal is, accordingly, disposed of, so also the miscellaneous pending application(s), if any. Records be sent back forthwith.

(Tarlok Singh Chauhan)

Judge

(Satyen Vaidya) 29th December,2023

Judge (sushma)