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Monday, July 29, 2013

mere non-joining of an independent witness - not fatal to the prosecution = Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.= In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. - Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed.

                            published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40594
                                    REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 2302 of 2010




      Gian Chand & Ors.
           …Appellants


                                   Versus




      State of Haryana
            …Respondent


                               J U D G M E N T

      Dr. B.S. Chauhan, J.




      1.    This appeal has been filed against the judgment and order  dated
      4.11.2008 passed by the High Court of Punjab and Haryana at Chandigarh
      in Criminal Appeal No. 392-SB of 2001, by which it  has  affirmed  the
      judgment and order dated 2.2.2001 passed by the trial court, Sirsa  by
      which the appellants were 
convicted under the provisions of Section 15
 of Narcotic Drugs and Psychotropic Substances Act,  1985  (hereinafter referred to as the ‘Act’). 
 By that  order,  they  were  sentenced  to
      undergo RI for a period of 10 years each and to pay a fine of rupees 1
      lakh each, and in default of payment of fine, to  undergo  further  RI
      for a period of one year.
      2.    Facts and circumstances giving rise to this appeal are that:
      A.    On 5.9.1996, at about 2.15  a.m.,  Bhan  Singh,  ASI  of  Police
      Station, Rania alongwith other police officials  was  present  in  the
      village Chakka Bhuna in an official jeep. The police party saw a  jeep
      coming at high speed from the opposite direction and  asked  the  said
      jeep to stop.  However, instead of stopping,  the  driver  accelerated
      the speed of the jeep. This created suspicion  in  the  minds  of  the
      police officials. Thus, they chased the jeep.  The  occupants  of  the
      jeep took a U-turn and in that process the jeep struck the wall  of  a
      house in the village.  The three occupants of the jeep  tried  to  run
      away but they were caught by the police.   The  said  three  occupants
      were later identified as the appellants. They were asked whether  they
      would like to be searched before a Gazetted officer or  a  Magistrate,
      however, they chose the former. The Deputy  Superintendent  of  Police
      was called and a search was conducted in his presence. The vehicle had
      10 bags containing 41 kg poppy  husk  each.   The  police  party  took
      samples of 200 grams of poppy husk from each  bag  and  the  same  was
      sealed by the Dy.S.P.


      B.    On the basis of same, an FIR was lodged on  5.9.1996  itself  at
      3.15 a.m. at the Rania Police Station against the  appellants-accused.
      After investigation, a chargesheet was  filed  against  them  and  the
      appellants claimed trial. Hence, the trial commenced.


      C.    The prosecution led the evidence in support of its case and also
      produced the case property in the court alongwith the damaged jeep  in
      which the appellants were carrying 410 kg. poppy  husk.   In  the  FSL
      report all positive results were shown.  Appellants did not  lead  any
      evidence in defence and pleaded that they had falsely been  implicated
      in the crime.


      D.    After conclusion of the trial, the appellants were convicted and
      sentenced as referred to hereinbefore vide judgment  and  order  dated
      2.2.2001, and the said judgment and order has  been  affirmed  by  the
      High Court vide its judgment and order dated 4.11.2008.
            Hence, this appeal.


      3.    Mr. J.P. Dhanda, learned counsel appearing  for  the  appellants
      has  submitted  that  no  independent  witness  was  examined  by  the
      prosecution in the case, though a large number of people had  gathered
      at the place of the alleged incident  which  led  to  the  appellants-
      accused being apprehended. No  independent  witness  was  involved  in
      preparation of the panchnama of the recovered substances. Further, the
      prosecution failed  to  prove  that  the  appellants-accused  were  in
      conscious possession of the contraband material.   This  incriminating
      circumstance had not even been put  to  the  appellants-accused  while
      recording their statements under  Section  313  of  Code  of  Criminal
      Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’). The appellants
      have already served about  8  years  of  sentence.  Thus,  the  appeal
      deserves to be allowed.


      4.     Per  contra,  Mr.  Brijender  Chahar,  learned  senior  counsel
      appearing for the State has opposed the appeal contending that even if
      some persons  had  gathered  at  the  place  of  occurrence  when  the
      appellants were apprehended, nobody was willing to become  a  witness.
      Therefore, the prosecution could not examine any independent  witness.
      The case of the prosecution does not deserve to get disbelieved simply
      because police officials themselves are the witnesses,  nor  there  is
      any requirement in law that  in  every  case  an  independent  witness
      should be examined. Further all incriminating material was put to  the
      appellants-accused while recording their statements under Section  313
      Cr.P.C. Once it is established that an accused  is  in  possession  of
      contraband  substance, the burden to prove that he had no knowledge of
      the same, shifts to the accused to  prove   the  same.  More  so,  the
      accused is supposed to explain his conduct while making his  statement
      under  Section  313  Cr.P.C.  particularly  where  there  are  certain
      presumptions against him under Section  35  of  the  Act.   There  are
      concurrent findings of fact recorded by the  courts  below.  Thus,  no
      interference is called for and the appeal is liable to be dismissed.


      5.    We have considered the rival submissions made by learned counsel
      for the parties and perused the record.


      6.    No dispute has been raised regarding the  poppy  husk  recovered
      from the jeep or the damaged jeep.  Further, the  appellants  did  not
      challenge the result shown in the FSL report wherein  the  qualitative
      tests  in  respect  of  Meconic  Acid,  Morphine,  Codeine,  Thebaine,
      Papaverine and Narcotine had all been shown as positive.


      7.    All three occupants, i.e. the appellants abandoned  the  vehicle
      just after it dashed against the wall and made a desperate attempt  to
      escape but were apprehended by the  police  party.   The  Trial  Court
      examined the matter elaborately and after appreciating the evidence of
      the witnesses, came to the conclusion that there were no discrepancies
      in the statements of the three officials, i.e. prosecution  witnesses.
      Their statements inspired tremendous confidence and thus, there was no
      reason for  the  court  to  discard  the  testimony  of  the  official
      witnesses.  The grievance had also been raised before the Trial  Court
      that the chit carrying contents of case property was not available  on
      the bags.  However, this did not give any benefit to  the  accused  as
      there was overwhelming evidence on record to prove that the seizure of
      ten bags had  actually  been  made  from  the  accused.   Further  the
      contents of the samples  sent  for  chemical  analysis  gave  positive
      results on analysis in the laboratory.


      8.    The High  Court  dealt  with  the  issue  elaborately  regarding
      knowledge i.e. conscious possession, and held as under:
           “There were only three occupants in the jeep,  at  the  relevant
           time.  As many as 10 bags, each containing 41 kgs.  Poppy  husk,
           were lying in the jeep.  It was not a small  quantity  of  poppy
           husk,.….and could escape the notice of the accused.   It  was  a
           big haul of poppy husk, ……The accused were having special  means
           of knowledge, with regard to the bags,  containing  poppy  husk,
           lying in the jeep.  It was for the accused to explain, as to how
           the bags, containing poppy husk, were  being  transported.   Not
           only this, the conduct of the accused, is also relevant, in this
           case.  They instead of stopping the jeep, when  the  signal  was
           given, by the policy party, accelerated the  speed  thereof  and
           sped away towards Village Keharwala.   It  was  only  after  hot
           chase, given by the members of the police party, in their  jeep,
           that the driver of the jeep  got  nervous,  could  not  properly
           negotiate the turn and lost control, as a  result  whereof,  the
           said jeep struck against the wall and stopped.  In  case,  there
           was no contraband, in the jeep, and the accused were not in  the
           knowledge of the same then what was the  necessity  of  speeding
           away  the  jeep,  was  for  them  to  explain.   This   material
           circumstance goes against them.  Under these  circumstances,  it
           could be said that they were in possession of,  and  in  control
           over the bags, lying in the jeep.


                 Once the possession of the accused, and their control  over
           the contraband, was proved,  then  statutory  presumption  under
           Section 54 and 35 of the Act, operated against them,  that  they
           were in conscious possession thereof.  Thereafter,  it  was  for
           them, to rebut the statutory presumption, by leading cogent  and
           convincing evidence.  However, the  appellants, failed to  rebut
           the  said  presumption  either  during  the  course  of   cross-
           examination of the prosecution witnesses, or by leading  defence
           evidence.”
                                                            (Emphasis added)




      9.    Further, in their  statement  under  Section  313  Cr.P.C.,  the
      appellants took the plea of false implication only and the  appellants
      miserably failed to  rebut  the  statutory  presumption,  referred  to
      above. The High Court further held as under:-
           “In the instant case, no plea  was  taken  up  by  the  accused,
           during the course of trial or in their statements, under Section
           313 Cr.P.C. that they were not the occupants of  the  jeep.   No
           plea was taken by the accused that they were not  aware  of  the
           contents of the bags, lying in the jeep.  No plea was  taken  up
           by the  driver  of  the  jeep  that  he  was  taking  the  bags,
           containing poppy husk,  as  per  the  directions  of  the  owner
           thereof, and did not know, as to what was contained in the bags.
            No plea was taken up, by the other occupants, of the jeep, that
           they were merely labourers engaged for loading and unloading the
           bags, containing poppy husk, at the destination.   No  plea  was
           taken up by the accused, other than the driver, sitting  in  the
           jeep, that they  only  took  lift  therein,  and  as  such  were
           passengers.  They did not take up the plea, that the  driver  of
           the jeep knew them earlier and since they  could  not  find  any
           public transport, for going to their villages, he gave them lift
           therein on friendly basis.  The facts of the cases, relied  upon
           by the Counsel for the appellants,  and  referred  to,  in  this
           paragraph, being distinguishable, from the facts of the  instant
           case, no help can be drawn by the  counsel  for  the  appellants
           therefrom.  In this view of the matter, the  submission  of  the
           counsel for the appellants, being without merit, must fail,  and
           the same stands rejected.”




      10.   So far as the condition of the property is concerned, the  court
      observed that “as the witnesses have been examined  after  four  years
      from the date of recovery.  The case property remained  lying  in  the
      malkhana.  On account of shortage of space, in the malkhanas, the case
      properties cannot be stacked properly and the bags,  containing  poppy
      husk, underwent the process of decay, however, did not mean  that  the
      case property produced in the court, did not  relate  to  the  instant
      case.”  There was nothing  on  record  to  show  that  the  said  case
      property had been tampered with.


      11.   The effect of not cross-examining  a  witness  on  a  particular
      fact/circumstance has been dealt with and explained by this  Court  in
      Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs.  &
      Ors., AIR 2013 SC 1204 observing as under:
             “31. Furthermore, there cannot be any dispute with  respect  to
           the settled legal proposition, that if a party wishes  to  raise
           any doubt as regards the  correctness  of  the  statement  of  a
           witness, the said  witness  must  be  given  an  opportunity  to
           explain his statement by drawing his attention to that  part  of
           it, which has been objected to by  the  other  party,  as  being
           untrue.  Without  this,  it  is  not  possible  to  impeach  his
           credibility. Such a  law  has  been  advanced  in  view  of  the
           statutory provisions enshrined in Section 138  of  the  Evidence
           Act, 1872, which enable the opposite party  to  cross-examine  a
           witness as regards  information  tendered  in  evidence  by  him
           during his initial examination in chief, and the scope  of  this
           provision stands enlarged by Section 146 of  the  Evidence  Act,
           which permits a witness to be questioned, inter-alia,  in  order
           to test his veracity. Thereafter, the unchallenged part  of  his
           evidence is to be  relied  upon,  for  the  reason  that  it  is
           impossible for the witness to  explain  or  elaborate  upon  any
           doubts as regards the same, in the absence of questions  put  to
           him with respect to the circumstances which  indicate  that  the
           version of events provided by him, is not fit  to  be  believed,
           and the witness himself, is unworthy of credit. Thus, if a party
           intends  to  impeach  a  witness,  he  must   provide   adequate
           opportunity to the witness in the witness box, to  give  a  full
           and proper explanation. The same is  essential  to  ensure  fair
           play and fairness in dealing with witnesses.”
                                                         (Emphasis supplied)
      (See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC
      3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC  1425;  and
      Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181)
      12.   The defence did  not  put  any  question  to  the  Investigating
      Officer in his cross-examination in respect of missing chits from  the
      bags containing  the  case  property/contraband  articles.   Thus,  no
      grievance could be raised by the appellants in this regard.


      13.   The appellants were found travelling in a jeep at odd  hours  in
      the night and  the  contraband  material  was  found.  Therefore,  the
      question arises whether they can be held to have conscious  possession
      of the contraband substances.
            This Court dealt with this issue in Madan Lal & Anr. v. State of
      Himachal Pradesh AIR 2003 SC 3642, observing that Section 20(b)  makes
      possession of contraband articles an offence. Section  20  appears  in
      Chapter IV of the Act which relates  to  offences  and  penalties  for
      possession of such articles. Undoubtedly, in order to bring  home  the
      charge of illicit possession, there must be conscious possession.  The
      expression ‘possession’ has been held to be a polymorphous term having
      different meanings in contextually different  backgrounds.  Therefore,
      its definition cannot be put  in  a  straitjacket  formula.  The  word
      ‘conscious’ means awareness about a particular fact. It is a state  of
      mind which is deliberate or intended. Possession in a given case  need
      not be actual physical possession and  may be constructive i.e. having
      power and control over the article in  case  in  question,  while  the
      person to whom physical possession is given holds it subject  to  that
      power or control. The Court further held as under:

           “Once possession is established the person who  claims  that  it
           was not a conscious possession has to establish it, because  how
           he came to be in possession is  within  his  special  knowledge.
           Section 35 of the Act gives  a  statutory  recognition  of  this
           position because of presumption available in law. Similar is the
           position in terms  of  Section  54  where  also  presumption  is
           available to be drawn from possession  of  illicit  articles….It
           has not been shown by the accused-appellants that the possession
           was not conscious in the logical background of Sections  35  and
           54 of the Act.”                                (Emphasis added)



      14.   From the conjoint reading of the provisions of Section 35 and 54
      of the Act, it becomes clear that if the accused is  found  to  be  in
      possession of the contraband article, he is presumed to have committed
      the offence under the  relevant  provisions  of  the  Act   until  the
      contrary is proved. According to Section 35  of  the  Act,  the  court
      shall presume the existence of mental state for the commission  of  an
      offence and it is for the accused to prove otherwise.

            Thus, in view of the above, it is a  settled  legal  proposition
      that once possession of the contraband articles  is  established,  the
      burden shifts on the accused to establish that he had no knowledge  of
      the same.

      15.   Additionally, it can also be held that once  the  possession  of
      the contraband material with the accused is established,  the  accused
      has to establish how he came to be in possession of the same as it  is
      within his special knowledge and therefore, the case falls within  the
      ambit of the provisions of Section  106  of  the  Evidence  Act,  1872
      (hereinafter referred to as `the Act 1872’).


      16.   In State of West Bengal v. Mir Mohammad Omar & Ors.  etc.  etc.,
      AIR 2000 SC 2988, this Court held that if the fact is specifically  in
      the knowledge of any person, then the burden of proving that  fact  is
      upon him. It is impossible for the prosecution to prove certain  facts
      particularly within the knowledge  of  accused.  Section  106  is  not
      intended to relieve the prosecution of its burden to prove  the  guilt
      of the accused beyond reasonable doubt. But the Section would apply to
      cases where the prosecution has succeeded in proving facts from  which
      a reasonable inference can be drawn regarding the existence of certain
      other facts, unless the accused by virtue  of  his  special  knowledge
      regarding such facts, failed to  offer  any  explanation  which  might
      drive the Court to draw a different  inference.  Section  106  of  the
      Evidence Act is designed to meet certain exceptional cases, in  which,
      it would be impossible for the prosecution to establish certain  facts
      which are particularly within the knowledge of the accused.

      (See also: Shambhu Nath Mehra v. The State of Ajmer AIR 1956  SC  404;
      Gunwantlal v. The State of Madhya Pradesh AIR  1972  SC  1756;   Sucha
      Singh v. State of Punjab AIR  2001 SC 1436;  Sahadevan @ Sagadevan  v.
      State rep. by Inspector of Police, Chennai  AIR  2003  SC  215;  Durga
      Prasad Gupta v. The State of Rajasthan thr. CBI,  (2003) 12  SCC  257;
      Santosh Kumar Singh v. State thr. CBI, (2010) 9 SCC 747; Manu  Sao  v.
      State of Bihar (2010) 12 SCC 310; Neel Kumar alias Anil Kumar v. State
      of Haryana (2012) 5 SCC 766).

      17.      Learned counsel for the appellants has placed  much  reliance
      upon the judgment of this Court in State of Punjab  v.  Hari  Singh  &
      Ors., AIR 2009 SC 1966, wherein  placing  reliance  upon  the  earlier
      judgment in Avtar Singh & Ors. v. State of Punjab,  AIR 2002 SC  3343,
      it was held  that  if  the  incriminating  material  i.e.,  the  issue
      relating to possession had not been put to the accused  under  Section
      313 Cr.P.C. the principles of natural justice stand violated  and  the
      judgment stands vitiated.


      18.   So far as the judgment in Avtar Singh (supra) is  concerned,  it
      has been considered by this Court in Megh Singh v. State of Punjab AIR
      2003 SC 3184. The Court held  that the circumstantial flexibility, one
      additional or different fact may make a world  of  difference  between
      conclusions in two cases or between two accused in the same case. Each
      case depends on its own facts and a close similarity between one  case
      and another is not enough because  a  single  significant  detail  may
      alter the entire aspect. It is more pronounced in criminal cases where
      the backbone of adjudication is fact based.  In Avtar  Singh  (supra),
      the contraband articles were being carried  in  a  truck.  There  were
      several persons in the truck. Some of them fled and it  could  not  be
      established by evidence that anyone of them had conscious  possession.
      While the accused was examined under Section 313 Cr.P.C.  the  essence
      of accusations was  not  brought  to  his  notice,  particularly  with
      respect to the aspect of possession. It  was  also  noticed  that  the
      possibility of the accused persons being labourers of  the  truck  was
      not ruled out by evidence. Since the decision was rendered on  special
      consideration of several peculiar factual aspects specially noticed in
      that case, it cannot be of any assistance in all the cases.


      19.   Therefore, it is evident that Avtar Singh (supra) does  not  lay
      down the law of universal application as it had been  decided  on  its
      own facts.


      20.   So far as Section 313 Cr.P.C.  is  concerned,  undoubtedly,  the
      attention of the accused must specifically be  brought  to  inculpable
      pieces of evidence to give him an opportunity  to offer an explanation
      if he chooses to do so.  A three-Judge Bench of this  Court  in  Wasim
      Khan v. The State of Uttar Pradesh,  AIR 1956 SC 400; and Bhoor  Singh
      & Anr. v. State of Punjab,  AIR 1974 SC 1256 held that every error  or
      omission in compliance of the provisions of Section  342  of  the  old
      Cr.P.C. does not necessarily vitiate trial.   The  accused  must  show
      that some prejudice has been caused or was likely to have been  caused
      to him.


      21.   In  Asraf Ali v. State of Assam, (2008) 16 SCC  328,  a  similar
      view has been reiterated by this Court  observing  that  all  material
      circumstances appearing  in  the  evidence  against  the  accused  are
      required to be put to him specifically and failure to do so amounts to
      serious irregularity vitiating trial, if it is shown that the  accused
      was prejudiced.


      22.   In Shivaji Sahebrao Bobade & Anr. v. State of  Maharashtra,  AIR
      1973 SC 2622, a three-Judge Bench  of  this  Court  held  that  “basic
      fairness of a criminal trial may gravely imperil the validity  of  the
      trial itself, if consequential miscarriage  of  justice  has  flowed.”
      However, where such an omission has occurred it does  not  ipso  facto
      vitiate the proceedings and prejudice occasioned by such defect,  must
      be established by the accused.


      23.   In Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011  SC
      200, after considering large number of cases on the issue, this  Court
      held as under:-


           “Thus, it is evident from  the  above  that  the  provisions  of
           Section 313 Cr. P.C make it obligatory for the court to question
           the accused on the evidence and circumstances against him so  as
           to offer the accused an opportunity to explain the same. But, it
           would not be enough for the accused to show that he has not been
           questioned or examined on a particular circumstance, instead  he
           must show that such non-examination has actually and  materially
           prejudiced him and has resulted in the failure  of  justice.  In
           other words, in the event of an inadvertent omission on the part
           of the court  to  question  the  accused  on  any  incriminating
           circumstance cannot ipso facto vitiate the trial  unless  it  is
           shown that some material prejudice was caused to the accused  by
           the omission of the court”

           (Emphasis added)




      24.   In the instant case the issue relating to non-compliance of  the
      provisions of Section 313 Cr.P.C. has not been raised before the  High
      Court, and it is raised for the first time before this Court.  Learned
      counsel for the appellants could not point out what prejudice has been
      caused to them if the fact of “conscious possession” has not been  put
      to them. Even otherwise such an issue cannot be raised in the existing
      facts and circumstances of the case wherein  the  burden  was  on  the
      accused to show how the contraband material came to be  found  in  the
      vehicle which was driven by  one  of  them  and  the  other  two  were
      travelling in that vehicle.


      25.   The next question for consideration does arise as to whether  it
      is necessary to examine an  independent  witness  and  further  as  to
      whether a case can be seen with doubt where all the witnesses are from
      the police department.


            In Rohtash v. State of Haryana  JT 2013 (8) SC 181,  this  court
      considered the issue at length and after  placing  reliance  upon  its
      earlier judgments came to the conclusion that where all witnesses  are
      from the police department,  their  depositions  must  be  subject  to
      strict scrutiny. However, the evidence of police officials  cannot  be
      discarded merely on the ground that they belong to the  police  force,
      and are either interested in  the  investigating  or  the  prosecuting
      agency. However,  as  far  as  possible  the  corroboration  of  their
      evidence on material particulars should be sought.  The Court held  as
      under:
           “Thus, a witness  is  normally  considered  to  be  independent,
           unless he springs from sources which are likely  to  be  tainted
           and this usually means that the said witness has cause, to  bear
           such enmity against the accused, so as to implicate him falsely.
            In view of the above, there can be no prohibition to the effect
           that a policeman cannot be a witness,  or  that  his  deposition
           cannot be relied upon.”


      (See also: Paras Ram v. State of Haryana, AIR  1993  SC  1212;  Balbir
      Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi,  AIR
      1999 SC 1315; M.  Prabhulal  v.  Assistant  Director,  Directorate  of
      Revenue Intelligence, AIR 2003 SC  4311;  and  Ravinderan  @  John  v.
      Superintendent of Customs, AIR 2007 SC 2040).








      26.   In State, Govt. of NCT of Delhi v. Sunil &  Anr.  (2001)  1  SCC
      652, this Court examined a similar issue in a case where no person had
      agreed to affix his signature on the  document.   The  Court  observed
      that it is an archaic notion that actions of the police officer should
      be viewed with initial distrust. At any rate, the court  cannot  begin
      with the presumption that  police  records  are  untrustworthy.  As  a
      proposition of law the presumption should be the other way around. The
      wise principle  of  presumption,  which  is  also  recognised  by  the
      legislature,  is  that  judicial  and  official  acts  are   regularly
      performed. Hence, when a police officer gives evidence in court that a
      certain article was recovered by him on the strength of the  statement
      made by the accused it is open to the court to believe that version to
      be correct if it is not otherwise shown to be unreliable.  The  burden
      is on the accused, through cross-examination of witnesses  or  through
      other materials, to show that the evidence of the  police  officer  is
      unreliable.  If  the  court  has  any  good  reason  to  suspect   the
      truthfulness of such records of the police the court  could  certainly
      take into account the  fact  that  no  other  independent  person  was
      present at the time of recovery. But it is not  a  legally  approvable
      procedure to presume that police action is unreliable to  start  with,
      nor to jettison such action merely for the reason that police did  not
      collect signatures  of  independent  persons  in  the  documents  made
      contemporaneous with such actions.


      27.   In  Appabhai & Anr. v. State of Gujarat AIR 1988  SC  696,  this
      court dealt with the issue of non-examining the independent  witnesses
      and held as under:
             “The prosecution case cannot be thrown out or doubted on  that
           ground alone. Experience reminds us that  civilized  people  are
           generally insensitive when a crime is committed  even  in  their
           presence. They withdraw both from the victim and the  vigilante.
           They  keep  themselves  away  from  the  Court  unless   it   is
           inevitable. They think that crime like civil dispute is  between
           two  individuals  or  parties  and  they  should   not   involve
           themselves. This kind of apathy of the general public is  indeed
           unfortunate, but it is  there  everywhere  whether  -in  village
           life, towns or cities. One  cannot  ignore  this  handicap  with
           which the investigating agency has to discharge its duties.”


      28.   The principle of law laid down hereinabove is  fully  applicable
      to the facts of the present case.
Therefore, mere non-joining  of  an independent witness where the evidence of  the  prosecution  witnesses may be found to be  cogent,  convincing,  creditworthy  and  reliable,  cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.






      29.   In the instant case at the time of incident some  villagers  had
      gathered there. 
The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them  were willing to become a witness.  
Therefore,  he  could  not  examine  any independent witness.


           Section 114 of the Act 1872 gives rise to the  presumption  that
      every official act done by the police was regularly performed and such presumption requires rebuttal. 
The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse  acta  i.e.,  
all  the acts are presumed to have been done rightly  and  regularly, applies.
      When acts are of official nature  and  went  through  the  process  of scrutiny by official persons, a presumption arises that the said  acts have regularly been performed.


                   In view of the above,  the  submissions  of  the  learned
      counsel for the appellants in this regard, are held to be without  any
      substance.
      ?




      30.   In view of the  above,  the  appeal  does  not  present  special
      features warranting any interference by this court. Appeal  is  devoid
      of any merit and is, accordingly, dismissed.




                                ……………………………..........J.                (DR.
                                B.S. CHAUHAN)



……………..................................J.
                                                               (S.A.  BOBDE)

      NEW DELHI;
      July 23, 2013























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