Conviction Of Accused May Be Based On Statements Of Official Witnesses After Strict Scrutiny: Himachal Pradesh High Court

However, a bench of Justices Tarlok Singh Chauhan and Ranjan Sharma also clarified that before basing a conviction on the evidence of an official witness, strict scrutiny is required.

"..it is settled law that evidence of official witnesses is not to be disbelieved or discarded, merely for the reasons that they are official witnesses. Presumption is that every witness is impartial and independent, unless proved contrary. There is no presumption for doubting the credibility of official witnesses, in principle. Statements of official witnesses can be the basis for the conviction of the accused; however, before basing conviction on the evidence of official witness, strict scrutiny with care and caution is required. In cases where the evidence of the official witnesses is found to be cogent, reliable and credible, conviction can be based only on the evidence of the official witnesses."

The observations were made while hearing a criminal conviction appeal for an offence under Section 20 of the NDPS Act, 1985.

Assailing his conviction the appellant had raised four main points for the appellant's acquittal:

• The absence of specific details, such as safety grills, in the spot map.
• Alleged illegality in the sequence of preparing the seizure memo and the rukka.
• Lack of independent witnesses during the arrest.
• Failure to explicitly inform the accused about the nature of the charges during examination under Section 313 of the Criminal Procedure Code.

The Senior Additional Advocate General argued that the Investigating Officer was not expected to possess architectural or engineering expertise, thus detailing safety grills in the spot map was not mandatory. He defended the investigation procedure, stating that lodging an FIR was justified after the contraband's recovery.

Regarding the absence of independent witnesses, he asserted that credible evidence from official witnesses was sufficient for conviction. Additionally, he contended that during the examination under Section 313 Cr.P.C., only the essence of the accusation needed to be communicated to the accused, not every specific detail.

The bench ruled that the absence of explicit details like safety grills did not cast doubt on the prosecution's case. Acknowledging the argument of the State that the Investigating officer's lack of expertise in architectural or engineering matters would not in any way cast a doubt much less a serious doubt on the prosecution story, the bench observed,

“..We really see no substance in the arguments of the learned counsel for the appellant given the fact that I.O. was neither an engineer nor an architect, who could have been expected to prepare map with sufficient accuracy and even otherwise the footnote appended alongwith the spot map would in our considered opinion be quite sufficient”.

The court affirmed that preparing the seizure memo before sending the rukka for FIR registration was a lawful procedure. It also clarified that lodging an FIR is warranted after the seizure of contraband, not merely based on suspicion.

With regard to the argument of lack of independent witnesses during the arrest, the court emphasised that the evidence of official witnesses cannot be dismissed solely due to their official status.

It added,

“..Evidence of official witnesses is not to be disbelieved or discarded, merely for the reasons that they are official witnesses. Presumption is that every witness is impartial and independent, unless proved contrary. There is no presumption for doubting the credibility of official witnesses, in principle. Statements of official witnesses can be the basis for the conviction of the accused”.

The court also clarified that the essence of the accusation must be communicated to the accused during examination under Section 313 CrPC. It clarified that the omission to specifically inform the accused does not automatically vitiate the proceedings and prejudice resulting from such omission must be demonstrated by the defense.

“..However, where such omission has occurred it does not ipso facto vitiate such an omission and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration.”

In light of these observations, the bench dismissed the appeal and upheld the conviction.

Case Title: Mohammad Nadeem Akram Vs State of Himachal Pradesh

Citation: 2023 LiveLaw (HP) 72

Click Here To Read/Download Judgment