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Lack of Independent Witness Doesn’t Vitiate Conviction: Supreme Court

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A three-judge Bench of the Supreme Court in Rajesh Dhiman v State of Himachal Pradesh clarified the law in case of lack of independent witnesses. The Bench observed that it would not vitiate the conviction; instead, it would call for heightened care on part of the Court.

Brief Facts of the Case

The Appellants had approached the Court against the High Court Order convicting them under Section 20 of the NDPS Act reversing the Trial Court’s acquittal. 

The case of the Prosecution disclosed that a police team apprehended the Appellants’ motorcycle during a routine traffic check as it did not have a number plate. Upon seeing them in possession of a backpack, the police tried to call for independent eyewitnesses but failed. The appellants were asked if they would want to be searched in presence of a Magistrate. They consented to be searched by police on the spot. The police seized polythene bags containing 3kg 100 grams of charas and arrested them.

The Appellants gave an alternate version that they were returning from a temple and had given a lift to an unidentified third person. The backpack belonged to him and he ran away when they were apprehended.

The Trial Court acquitted them for want of corroboration, but, the High Court convicted them on an appreciation of evidence. 

Arguments

The Appellants argued that when two distinct versions of the same incident had emerged from the evidence on record, the one which was beneficial to the Appellants ought to be adopted, given the presumption of innocence. 

Also, the complainant and the investigating officer was the same hence creating a suspicion of bias. Non-examination of a bystander and the only independent witness turning hostile was fatal.

The High Court ought not to have convicted the Appellants only on the ground that the effect of the non-examination of an independent witness was inconsequential. The Trial Court’s acquittal was predicated on many other grounds that the High Court hasn’t engaged with at all. They include the alternate version given by PW3. It was read with the statements of the Appellants under Section 313 CrPC, as well as the non-compliance of Section 50 of the NDPS Act. 

Court’s Observations

The Court first discusses the contention relating to the IO being the complainant. Citing Mukesh Singh v State the Court said that this was not enough to reverse the conviction. It was necessary to show that there had either been actual bias or there was a real likelihood of bias, with no sweeping presumption being permissible. Thus, the Court saw no reason to draw an adverse inference.

Although in some cases, certain actions by the IO might show bias. But mere deficiencies in investigation or chinks in the prosecution case can’t be the sole basis for concluding bias.

Also, here such a large quantity of charas could not have been planted by the police to implicate the appellants.

The Court then moved on to the contention that by not pursuing the alternate theory the Police caused prejudice to the Appellants. The Court replied that the theory “is vague and improbable but it escapes our comprehension of how non-investigation of a defence theory disclosed only at an advanced stage of the trial, could show bias on part of the police.

Further according to the Bench, the Appellants failed to make out a case where two reasonable conclusions could be reached based on the evidence. The story given was ex-facie fanciful. Without evidence, the Appellants ended up admitting that they were present on the spot and interacted with the police. There was enough cause to stop the vehicle, and that this was a chance recovery.

Now, the non-examination of independent witnesses does not vitiate the Prosecution’s case. It calls for a heightened standard of care on part of the Court. And here, nothing suggests that the High Court was not cognizant of this.

Further, the Court added that the Trial Court’s appreciation of facts was mechanical. They were based on a misinterpretation of law; hence the High Court had more than enough grounds to interfere and arrive at a different finding.

About the allegation that Section 50 of NDPS wasn’t complied with the Court said:

“As held in State of Himachal Pradesh v. Pawan Kumar, the safeguards for the search of a person would not extend to his bag or other article being carried by them. Given how the narcotics have been discovered from a backpack, as per both the prosecution and defence versions, there arises no need to examine compliance with Section 50 of the NDPS Act.”

Court’s Order

Based on the aforementioned reason the Court failed to find any merit in the present appeal. Dismissing it the Bench directed the State to take the Appellants into custody to serve their sentences.

Click here to view the Judgement.


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