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Informant himself being investigator, by itself cannot be said that investigation is vitiated: SC

Rajesh Dhiman v. State of Himachal Pradesh (Criminal Appeal No. 1032 of 2013) With Gulshan Rana v. State of Himachal Pradesh (Criminal Appeal No. 1026 of 2013) - 26 October, 2020.

The Hon’be Supreme Court Comprising of Justice Surya Kant, Justice N.V.Ramana and Justice Hrishikesh Roy held in a case that mere deficiencies in investigation or chinks in the prosecution case can’t be the sole basis for concluding bias.

09.01.2002, at about 1.00 P.M., a motorcycle without a number plate was spotted. Gulshan Rana was driving the vehicle and Rajesh Dhiman was seated on the pillion with a backpack slung over his shoulders. They were signalled to stop and documents of the motorcycle were demanded. Meanwhile, another vehicle was halted and its occupants Karam Chand (PW3) and Shiv Ram were included in the search. An attempt was made to associate local residents to witness the subsequent proceedings, but none agreed. The police then discovered polythene bags containing charas from the backpack carried by Rajesh Dhiman. The polythene bags were weighed and found to be 3kg 100gms. Both were charged under section 20 of the Narcotics Drugs and Practices Act, 1985.

The learned Special Judge through judgment dated 28.12.2002 acquitted the appellants holding that charges under the NDPS Act had not been proved beyond reasonable doubt. Relying upon a decision of the Rajasthan High Court in Gyan Chand v. State of Rajasthan (1993 Cri LJ 3716), learned Special Judge noted that the complainant himself was the investigating officer which caused serious prejudice to the fairness of the investigation. The trial Court thus concluded that since two versions had emerged, the one which was favourable to the accused ought to be preferred

The High Court in appeal set aside the acquittal. The High Court dissected a catena of judgments and opined that the police officers’ testimonies ought to be subjected to a vigorous standard of scrutiny and corroboration; which, after careful and cautious appraisal, had been met in the instant case. It is against this order of the High court the present appeal is preferred.

Learned counsel for the Appellants, among other things, contended (i) that the High Court ought not to have reversed the well merited acquittal as two distinct versions of the same incident had emerged from the evidence on record, and thus the one beneficial to the appellants ought to be adopted, given the presumption of innocence under our legal system. (ii) that the complainant and investigating officer were one and the same, thus, casting doubts on the fairness and neutrality of the investigation.

Learned State counsel, on the other side, (i) referred to a recent judgment of the Constitution Bench of the Supreme Court in Mukesh Singh v. State (Narcotic Branch of Delhi)( 2020 SCC Online SC 700), which has authoritatively settled the law on permissibility of the complainant also being the investigating officer in cases under the NDPS Act. (ii) Rescission by one independent witness being wholly insufficient for the appellants to earn acquittal.

The questions of law formed and answered by the Court were:

I. Whether bias was caused by complainant also being the investigating officer?

II. Whether alternate version has been established and what is the effect of lack of independent witnesses?

III. Whether High Court erred in reversing acquittal in appeal?

While, answering the first issue, the Court referred to its judgment in Mukesh Singh v. State (Narcotic Branch of Delhi) (2020 SCC Online SC 700) and held the following:

The appellants’ claim of bias stems from the purported delays, noncompliance Of statutory mandates and non examination of independent witness. In effect, the appellants are seeking to circuitously use the very same arguments which have individually been held by the High Court to be factually incorrect or legally irrelevant. Although in some cases, certain actions (or lack thereof) by the Investigating Officer might indicate bias; but mere deficiencies in investigation or chinks in the prosecution case can’t be the sole basis for concluding bias. The appellants have at no stage claimed that there existed any enmity or other motive for the police to falsely implicate them and let the real culprits walk free. Further, such a huge quantity of charas could not have been planted against the appellants by the police on its own. (Para 11)

The court also observed that:

In   a   case   where   the   informant   himself   is   the investigator,   by   that   itself   cannot   be   said   that   the investigation is  vitiated on the  ground  of  bias or the like   factor.   The question   of   bias   or  prejudice  would depend   upon   the   facts   and   circumstances   of each case.  Therefore,  merely because  the   informant   is  the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. 

The court while discarding the petitioners contention that the case was not proved beyond reasonable doubt, referred to its judgment in K. Gopal Reddy v, State of Andhra Pradesh ((1979) 1 SCC 355) and answered the second issue in the following words:

We, therefore, see no reason to draw any adverse inference against PW8 himself investigating his complaint. This Court in K. Gopal Reddy v. State of Andhra Pradesh ((1979) 1 SCC 355), explained that “if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.” The appellants in the present appeal have miserably failed to make out a case where two reasonable conclusions can be reached on the basis of evidence on record. (Para 15)

Subsequently, the Court appreciated the judgment of the High Court and noted the following:

As correctly appreciated by the High Court in detail, non examination of independent witnesses would not ipso facto entitle one to seek acquittal. Though a heighted standard of care is imposed on the court in such instances but there is nothing to suggest that the High Court was not cognizant of this duty. Rather, the consequence of upholding the trial Court’s reasoning would amount to compulsory examination of each and every witness attached to the formation of a document. Not only is the imposition of such a standard of proof unsupported by statute but it is also unreasonably onerous in our opinion. The High Court has rightly relied upon the testimonies of the government officials having found them to be impeccable after detailed reappreciation of the entire evidence. We see no reason to disagree with such finding(s).(Para 18)

Answering the final issue, the Court observed the following:

Here, the trial Court appreciated facts in a mechanical manner and dismissed the prosecution case based on a misinterpretation of law, particularly qua satisfying the burden of proof. Hence, there were more than enough reasons for the High Court to interfere with the acquittal and arrive at a different finding.(Para 20)

Subsequently, the appeal was dismissed.

View/Download Judgment:

Rajesh Dhiman v
. State of Himachal Prade

Kalidharun K M.



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