In an appeal against conviction, appellate court is duty bound to appreciate evidence on record

High Court of Himachal Pradesh: While deciding a criminal appeal assailing the judgment passed by the trial court, whereby the appellant-accused was convicted for an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985; a Single Judge Bench comprising of Sanjay Karol, Acting CJ, acquitted the appellant of the alleged offence holding that incorrect and incomplete appreciation of evidence have led to a grave miscarriage of justice.

The prosecution alleged that the accused was apprehended by the police when he started running away on seeing the police party which was traveling in their vehicle, and 200 grams of ‘charas’ was recovered from the possession of the accused. With completion of formalities on the spot, the accused was arrested. The accused was charged under Section 20 of NDPS Act and was convicted for the same by the trial court.

The High Court perused the record and was of the opinion that the reasoning adopted by the trial court was perverse and not based on correct and complete appreciation of testimonies of the witnesses, evidence and other material placed on record; causing serious prejudice to the accused, resulting into miscarriage of justice. Referring to the Apex Court decision in Lal Mandi v. State of West Bengal, (1995) 3 SCC 603, the Court opined that in an appeal against conviction, appellate court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences.

The Court found that no independent witness was associated by the police in carrying out the search and seizure operations. The testimonies of spot witnesses (all police constables) were full of contradictions and were highly doubtful. The contradictions, improbabilities, embellishments stood ignored by the trial court and as such, findings returned on all the points being perverse and contrary to law were unsustainable in law. The prosecution was not able to prove that the contraband substance was recovered from ‘conscious possession’ of the accused. Accordingly, the appeal was allowed and the appellant was acquitted of the charged offence. [Davinder Kumar v. State of H.P., 2017 SCC OnLine HP 1644, order dated 17.11.2017]

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