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2025 DAILYLAW 3876 (HP)

State of Himachal Pradesh v. Shering Dorje

2025-10-14

Sushil Kukreja, Vivek Singh Thakur

body2025
JUDGMENT : Sushil Kukreja, Judge The instant appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure against judgment, dated 17.08.2015, passed by learned Special Judge-I, Kullu, District Kullu, H.P., in Sessions Trial No. 41 of 2014, whereby, the accused-Shering Dorje (respondent herein) was acquitted for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (for short ‘NDPS Act’). 2. The facts giving rise to the present appeal, as per the prosecution story, can be summarized as under: 2(a). On 13.01.2014, a police team was on routine patrol duty towards Jai Nalla and had laid nakka there. Police spotted the accused coming on a motorcycle, having registration No. HP 39-2290, and on being signaled to stop by the police, he stopped his vehicle 15 meters from the police party. Thereafter, the accused took out some article from the dickey of his motorcycle and threw the same by the side of the road. On the basis of suspicion, the accused nabbed was asked about the article which he threw, but he could not give any satisfactory reply and rather seemed perplexed. The accused had, in fact, thrown a black carry bag, in which the police found round shaped black substance, which was wrapped in a transparent plastic. The aforesaid recovered substance was found to be charas. The place was secluded and no independent witness was available at that time, therefore, Constable Nitish and HC Krishan Lal were associated as witnesses and in their presence the recovered contraband was weighed and found to be 1.572 kgs. Thereafter, the police completed all the codal formalities, viz., NCB form, in triplicate was filled in, statements of the witnesses were recorded, case property was taken in possession and the spot map was prepared. Rukka was sent to police station, through Constable Nitish, whereupon FIR against the accused was registered. Personal search of the accused was conducted and he was arrested. Motorcycle of the accused was also taken into possession. Sample of recovered contraband was sent for scientific analysis to FSL, Junga, and on being analyzed, contents of the same were opined to be charas. After completion of the investigation, police presented the charge- sheet before the learned Trial Court against the accused for commission of the offence punishable under Section 20 of the NDPS Act. 3. Sample of recovered contraband was sent for scientific analysis to FSL, Junga, and on being analyzed, contents of the same were opined to be charas. After completion of the investigation, police presented the charge- sheet before the learned Trial Court against the accused for commission of the offence punishable under Section 20 of the NDPS Act. 3. The prosecution, in order to prove its case, examined nine witnesses. Statement of the accused under Section 313 Cr.P.C. was also recorded, wherein he claimed innocence and denied the prosecution case. However, in defence, he did not examine any witness. 4. The learned Trial Court, vide impugned judgment dated 17.08.2015 acquitted the accused for commission of the offence punishable under Section 20 of the NDPS Act, hence, the instant appeal has been preferred by the appellant/State. 5. The learned Deputy Advocate General for the appellant/State contended that the impugned judgment is against the law and facts, based upon mis-appreciation of evidence, which ultimately resulted into miscarriage of justice, as such the same is liable to be set-aside. He further contended that the learned Trial Court has appreciated the evidence in a slip-shod and perfunctory manner and the impugned judgment is based on hypothetical reasoning, surmises and conjectures. Lastly, he submitted that the impugned judgment passed by the learned Trial Court be quashed and set-aside by allowing the instant appeal and the accused be convicted. 6. Conversely, the learned counsel for the respondent/accused contended that the impugned judgment passed by the learned Trial Court is the result of proper appreciation of the material on record and the same was passed after appreciating the evidence and law in its right and true perspective. She further contended that there was nothing against the accused and the judgment of acquittal passed by the learned Trial Court is a well-reasoned judgment, which does not require any interference, thus the instant appeal, which sans merits, be dismissed. 7. We have heard the learned Deputy Advocate General for the appellant/State, learned counsel for the respondent/accused, and carefully examined the entire records. 8. It is well settled by the Hon’ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. 8. It is well settled by the Hon’ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court 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 proven 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 learned trial Court. Further, if two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the learned trial Court. 9. The scope of power of Appellate Court in case of appeal against acquittal has been dealt with by the Hon’ble Apex Court in Muralidhar alias Gidda & another vs. State of Karnataka reported in (2014) 5 SCC 730 , which reads as under: "10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. 11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed: "7...........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.” 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu [3], Madan Mohan Singh [4], Atley [5], Aher Raja Khima [6], Balbir Singh [7], M.G. Agarwal [8], Noor Khan [9], Khedu Mohton [10], Shivaji Sahabrao Bobade [11], Lekha Yadav [12], Khem Karan [13], Bishan Singh [14], Umedbhai Jadavbhai [15], K. Gopal Reddy [16], Tota Singh [17], Ram Kumar [18], Madan Lal [19], Sambasivan [20], Bhagwan Singh [21], Harijana Thirupala [22], C. Antony [23], K. Gopalakrishna [24], Sanjay Thakran [25] and Chandrappa [26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” 10. The Hon’ble Supreme Court in Rajesh Prasad vs. State of Bihar & another, (2022) 3 SCC 471 , observed as under: “31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows: 31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352 ] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297 ] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297 ] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir] 31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows: 31.2.1. Where the approach or reasoning of the High Court is perverse; (a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393 ] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489 ] (b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were “interested” witnesses. [State of U.P. v. Hakim Singh (1980) (c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393 ] (d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297 ] (e) Where the High Court applied an unrealistic standard of “implicit proof” rather than that of “proof beyond reasonable doubt” and therefore evaluated the evidence in a flawed manner. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297 ] (e) Where the High Court applied an unrealistic standard of “implicit proof” rather than that of “proof beyond reasonable doubt” and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99 ] (f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610 ] (g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish “motive”. [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445 ] 31.2.2. Where acquittal would result is gross miscarriage of justice; (a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State ofU.P. v. Pheru Singh 1989 Supp (1) SCC] or based on extenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502 ] (b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610 ].” 11. In H.D. Sundara & others vs. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court has observed that the appellate court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. The relevant portion of the above judgment is as under: “8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The relevant portion of the above judgment is as under: “8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows: 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible. 9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the appellate court must first decide whether the trial court’s view was a possible view. The appellate court cannot overturn acquittal only on the ground that after re- appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. The appellate court cannot overturn acquittal only on the ground that after re- appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken.” 12. Thus, the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. Further, if two views were possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the learned Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the learned Trial Court. 13. The prosecution, examined as many as nine witnesses, however, its case mainly rests upon the statements of PW-4 Constable Nitish and PW-9 S.I. Sher Singh. 14. PW-4 Constable Nitish and PW-9 S.I. Sher Singh in one voice stated that on 13.01.2014 they alongwith HC Krishan Lal and HHC Chet Ram were on patrol duty. They further deposed that nakka was laid around 05:30 a.m. and around 06:00 a.m. a bike from Kasol side was signaled to stop. The motorcyclist stopped the vehicle 15 meters short of nakka and opened the dickey of his bike and took out something and threw it by the side of the road. They rushed to the spot and nabbed the motorcyclist and on being asked he disclosed his name as Shering Dorje (accused herein). He could not give any satisfactory reply as to what he had thrown. As per these witnesses, a black carry bag was found by the side of the road and on opening the same it was found to be stuffed with some black substance, which was wrapped in a transparent plastic paper, which was charas. He could not give any satisfactory reply as to what he had thrown. As per these witnesses, a black carry bag was found by the side of the road and on opening the same it was found to be stuffed with some black substance, which was wrapped in a transparent plastic paper, which was charas. The place was secluded and there was no residence or shop. They waited for fifteen minutes for independent person, but no one turned up. Therefore, the Investigating Officer associated Constable Nitish and Krishan Lal as witnesses. Both these witnesses further deposed that the recovered contraband was weighed with electronic weighing machine and it was found to be 1.572 kgs. Thereafter, the recovered contraband was put in the same black carry bag and it was sealed with three seals having impression ‘C’, NCB form, in triplicate, was filled in and facsimile seal was drawn. At 07:30 a.m. rukka was prepared and PW-4 took it to Police Station, Kullu, which was given to SHO Firoz Khan at around 08:30 a.m., on the basis of which FIR was registered. PW- 4 returned to the spot with the police file, which he gave to PW-9. 15. It is well settled that the conviction can be based upon the testimony of the police officials, provided that such testimony is reliable, trustworthy and confidence inspiring. The evidence of police witnesses cannot be distrusted and disbelieved, merely on account of their official status. The testimony of official witnesses, including police officials, carries the same evidentiary value as the testimony of any other person. The only difference is that Courts have to be more circumspect while appreciating the evidence of official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. In Pramod Kumar Versus State (Government of NCT of Delhi), (2013) 6 Supreme Court Cases 588, the Hon’ble Supreme Court has held that 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 scrutinizing 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. If, in the course of scrutinizing 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. Para-13 of the judgment reads as under:- “13. This Court, after referring to State of U.P. v. Anil Singh, State (Govt. of NCT of Delhi) v. Sunil and Ramjee Rai 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 scrutinizing 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.” 16. Similarly, in Baldev Singh Versus State of Haryana, (2015) 17 Supreme Court Cases 554, the Hon’ble Supreme Court has held that evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. However, prudence requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Relevant para of the judgment reads as under:- “10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.” 17. In Surinder Kumar Versus State of Punjab, (2020) 2 Supreme Court Cases 563, the Hon’ble Supreme Court has held that the Court cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption should be the other way round. Para-16 of judgment reads as under:- “16. In State (NCT of Delhi) Vs. Sunil it was held as under (SCC p.655): “It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption should be the other way round. The official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature”. 18. In Raveen Kumar v. State of H.P., (2021) 12 SCC 557 , it was laid down by the Hon'ble Supreme Court that non-association of the independent witnesses will not be fatal to the prosecution case. However, the Court will have to scrutinize the statements of prosecution witnesses carefully. It was observed as under:- "19. It would be gainsaid that the lack of independent witnesses is not fatal to the prosecution case. [Kalpnath Rai vs. State, (1998) AIR SC 201] However, such omissions cast an added duty on Courts to adopt a greater degree of care while scrutinizing the testimonies of the police officers, which if found reliable can form the basis of a successful conviction." 19. Therefore, in view of the aforesaid settled legal position, the testimony of police witnesses cannot be rejected on the ground of non-corroboration by independent witnesses, however such testimony needs to be carefully scrutinized. The same must inspire confidence and should be consistent with the case set up by the prosecution. Therefore, in view of the aforesaid settled legal position, the testimony of police witnesses cannot be rejected on the ground of non-corroboration by independent witnesses, however such testimony needs to be carefully scrutinized. The same must inspire confidence and should be consistent with the case set up by the prosecution. In case there are material contradictions, which goes to the root of the case and make the prosecution case highly doubtful, then this Court would obviously be circumspect while placing reliance on such testimony. 20. Now, applying the aforesaid principles to the facts of the case on hand. The case of the prosecution is that on 13.01.2014, at 06:00 a.m. at place Jai Nulla on Bhunter-Manikaran road, District Kullu, while driving motor bike, bearing registration No. HP39-2290, 1.572 kgs of charas was recovered from the conscious and exclusive possession of the accused, which he was carrying unauthorizedly. 21. As discussed above, the case of the prosecution mainly rests upon the testimonies of PW-4 Constable Nitish and PW-9 SI Sher Singh. However, there are some major contradictions in their statements. PW-4 deposed that nakka was set up after crossing the bridge towards Manikaran bridge, whereas, PW-9 deposed that barricades were put before the starting of the bridge at a distance of about 30-40 meters towards Bhunter from it. However, spot map, Ex. PW-9/B, nowhere shows that barricades were put up on the road during the nakka. Thus, qua the placement of nakka there are divergent versions of PW-4 and PW-9. 22. If the testimonies of PW-4 and PW-9 are further delved into, it is unearthed that there are different versions of these witnesses qua the sample seal. As per the case of the prosecution, seal, after its use, was handed over to Constable Nitish (PW-4), but PW-4 stated that the seal was lost. However, no rapat, qua the loss of seal, was recorded and PW-9 specifically deposed that he took back seal ‘C’ from Constable Nitish. PW-9 did not file any rapat qua taking of seal back from constable Nitish. Thus, on this count also the testimonies of both these witnesses, i.e., PW-4 and PW-9 are completely different from each other. Furthermore, PW-9 categorically deposed that he took sample seal ‘C’ on four different clothes. One of the sample seals Ex. PW-9 did not file any rapat qua taking of seal back from constable Nitish. Thus, on this count also the testimonies of both these witnesses, i.e., PW-4 and PW-9 are completely different from each other. Furthermore, PW-9 categorically deposed that he took sample seal ‘C’ on four different clothes. One of the sample seals Ex. D9, which was taken in the instant case, clearly shows that it was sample seal taken in FIR No. 13 of 2014, dated 10.01.2014, under Section 20 of the NDPS Act. However, in the present case, FIR No. is 15 of 2014, dated 13.01.2014, under Section 20 of the NDPS Act. Therefore, it is clear that sample seal Ex.D9 was taken in some other case and not in the instant case. Now, this discrepancy goes to the root of the prosecution case and is enough to disbelieve the entire case of the prosecution. This discrepancy is very material, as it creates substantial doubt on the veracity of the prosecution case. 23. The version of PW-4 becomes more doubtful when he stated that he waited for fifteen minutes for associating independent witness, but no one turned up. However, this witness, in his cross-examination, deposed that from the spot (the spot where the accused was allegedly nabbed), while he was taking rukka to the police station, he took lift in a vehicle and he returned to the spot with police file in a bus. Now, this clearly demonstrates that the spot was a road over which vehicles were plying. PW-4 himself stated that there was a temple and Inn near Jai Nullah. The version of this witness shows that after searching the bag of the accused, the police party made no efforts to associate independent witnesses. Moreover, PW-9 Investigating Officer categorically deposed that he did not take any steps to bring independent witnesses before searching the bag of the accused. Thus, it is clear that no efforts were made to associate independent witness. PW-9 himself testified that vehicular traffic remained on the road leading to Barshaini. He further deposed that vehicles came on the spot, but he did not count the number and after nabbing the accused they did not check any vehicle. Thus, it is clear that no efforts were made to associate independent witness. PW-9 himself testified that vehicular traffic remained on the road leading to Barshaini. He further deposed that vehicles came on the spot, but he did not count the number and after nabbing the accused they did not check any vehicle. The perusal of the statement of PW-9 clearly shows that the vehicles were plying on the road where the accused was allegedly intercepted by the police, but no effort was made by the police to join any independent witness. Thus, non-joining of independent witnesses despite their availability is fatal to the case of prosecution. Therefore, we are of the opinion that non-joining of independent witnesses by prosecution at the time of preparation of search and seizure memo despite the availability of independent witnesses has caused miscarriage of justice to the accused. Due to non association of available independent witnesses by the prosecution, an adverse inference has to be drawn against the genuineness of the prosecution case. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. 24. Hence, after the close scrutiny of the statements of abovesaid police/official witnesses, we are left with no other option, but to disbelieve their testimonies, as the same creates a doubt qua the veracity of the prosecution story. Therefore, we are of the opinion that if the testimonies of the police officials are considered in totality of the circumstances alongwith other evidence on record, the same do not inspire confidence. Therefore, non-association of any independent witness, despite availability has caused miscarriage of justice and also created serious doubt in the mind of Court about the impartial investigation of present case. 25. In addition to the above discrepancies and contradictions in the testimonies of key prosecution witnesses, i.e., PW-4 and PW-9, there are other contradictions and discrepancies as well. As per PW-1 Constable Karam Dass, on 15.01.2014, MHC Gajender Pal (PW-5) gave him case property, vide RC No. 10/2014, which he took to FSL, Junga. On return he handed over the receipt to MHC Gajender Pal. However, PW-5 Gajender Pal did not state that he had given or handed over the case property to PW-1. As per PW-1 Constable Karam Dass, on 15.01.2014, MHC Gajender Pal (PW-5) gave him case property, vide RC No. 10/2014, which he took to FSL, Junga. On return he handed over the receipt to MHC Gajender Pal. However, PW-5 Gajender Pal did not state that he had given or handed over the case property to PW-1. PW-5, in his cross-examination, categorically deposed that he did not give any statement to the Investigating Officer that he had sent the case property to FSL for examination. Thus, the link evidence of sending the case property to FSL, Junga, is missing. True it is that prosecution examined PW-8 HC Rakesh Kumar, who deposed that case property of FIR No. 15 of 2014, was sent by him through Constable Kram Dass (PW-1) to FSL, vide RC No. 10/2014, but again his testimony contradicted the testimony of PW-1. PW-8 HC Rakesh Kumar, deposed that since he was not Incharge of the Malkhana, receipt was not given to him and PW-1 had not specifically deposed as to whom receipt was given by him, on his return from FSL, Junga. Even PW-5 HC Gajender Pal did not state that receipt was given to him by PW-1 26. The learned Trial Court, in its judgment noted that when the case property was produced before the Court for the first time, it was bearing seven seal impressions. Case property was produced at the time of examination of PW-4 on 24.11.2014 and the Court has made the following observations. “(At this stage, ld. PP has produced one sealed parcel Ex. P1. It is sealed with four seals of FSL, which are on separate portion of the bag/parcel. There are other seals, one of which is legible as C and one as T. there are other five seal impressions on the parcel, but seals are not there. Permission to open the parcel is sought. FSL, seals are intact. Allowed.” 27. Thus, from the observation made at the time of production of case property before the Court, total seal impressions over the case property were seven plus four seals of FSL were intact. Five seals were not there, although, five seal impressions were there on the parcel. Permission to open the parcel is sought. FSL, seals are intact. Allowed.” 27. Thus, from the observation made at the time of production of case property before the Court, total seal impressions over the case property were seven plus four seals of FSL were intact. Five seals were not there, although, five seal impressions were there on the parcel. As per prosecution case, sealed parcel was bearing three seal impressions of C and three seal impressions of reseal T. The prosecution has not been able to explain as to how, there were seven seal impressions on the parcel. It was the duty of the prosecution to prove by leading satisfactory evidence that the case property remained in safe custody throughout. However, in the wake of the abovesaid evidence of the prosecution, the possibility of tampering of the case property cannot be ruled out. 28. The perusal of the material on record clearly transpires that the case of the prosecution is full of inconsistencies amongst the prosecution witnesses, there are major lacunae in the prosecution story and the versions of the key prosecution witnesses are also full of discrepancies and contradictions. Hence, in the absence of any reliable and trustworthy material on record, it will be safe to hold that the prosecution has failed to prove its case beyond doubt against the accused. Thus, in the entirety of circumstances, the prosecution could not establish its case against the accused beyond the scope of all reasonable doubt. 29. No other point was urged. 30. In view of what has been discussed hereinabove, no interference in the judgment of acquittal dated 17.08.2015, passed by the learned Special Judge-I, Kullu, District Kulla, H.P., in Sessions Trial No. 41 of 2014, is required, as the same is the result of proper appreciation of evidence and law. The appeal, which is devoid of merits, deserves dismissal and is accordingly dismissed. Bail bonds are discharged. 31. Pending application(s), if any, shall also stand disposed of. 32. The appeal, which is devoid of merits, deserves dismissal and is accordingly dismissed. Bail bonds are discharged. 31. Pending application(s), if any, shall also stand disposed of. 32. In view of the provisions of Section 481 BNSS, the respondent is directed to furnish personal bond in the sum of Rs.50,000/- and a surety in the like amount each, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the respondent, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.