(1.) THIS reference comes on the report of the Additional Sessions Judge, Ganganagar, dated 11-5-67 wherein he has recommended that the conviction of Chetram, Sukha, Nandram, Rugha and Ishar under sec. 7 of the Essential Commodities Act, 1955 should be set aside.
(2.) THE facts giving rise to the reference are that fourteen accused including the five persons named above were tried by the Additional District Magistrate, Ganganagar. THE prosecution case against them was that on the night between 3rd and 4th May, 1966 at about 1 a. m. the police apprehended nine persons at a place called Doublyminor in Ganganagar District when they were carrying gram, loaded on sixteen camels, to be exported from Rajasthan to Punjab. It was alleged that the five persons named above were also in the company of the nine accused who were arrested on that night, but, according to the prosecution, these five persons escaped arrest as they ran away before their apprehension. THE nine accused who were arrested by the police pleaded guilty before the trial court and they were convicted under sec. 7 of the Essential Commodities Act and each one of them was sentenced to pay fine of Rs. 500/- or to suffer three months' rigorous imprisonment in default of payment of fine. THE five persons named above pleaded not guilty saying that they were not in the company of the nine accused who were arrested. THE prosecution examined four witnesses and these accused also examined two witnesses in their defence. THE trial court observed that although these five persons had not confessed their guilt, the confession made by the other nine accused was sufficient evidence against these five. THErefore, it convicted them also for the same offence and awarded the same sentence of fine of Rs. 500/- to each one of them. Aggrieved by the order of the Additional District Magistrate, Ganganagar, dated 2-9-66, the accused filed a revision application in the court of the learned Sessions Judge, Ganganagar, who transferred it to the court of Addl. Sessions Judge. THE learned Addl. Sessions Judge has reported that there was no evidence against the said five persons, that the Additional District Magistrate had committed an error in convicting them on the basis of the confession made by the other accused persons and, therefore, he has recommended that their conviction should be set aside and they should be acquitted.
I have gone through the record of the trial court and find that P. W. I. Bhanwarlal, Station House Officer, who investigated the case, admitted in his cross-examination that he could not point out which witness had named any one or more of the accused persons. Thus, his evidence is of no avail to the prosecution so far as these five persons are concerned. P. W. 2 Mohanlal has also not said a word against any of these five accused. PW 3 Birbal admitted in his corss-exami-nation that except the nine accused who were arrested at the site, he did not see anybody else. This witness was said to be present at the time when the other nine accused were arrested with gram loaded on sixteen camels. His evidence makes it doubtful if the number of persons who were taking away the camels loaded with gram was more than nine. Similarly, Sikander Khan P. W. 4 who was present at the site stated in his examination-in-chief that he did not see more than the nine persons who were arrested at the border. Thus, out of the four prosecution witnesses not a single witness has deposed if any one of the five accused persons was in the company of those who were arrested. There was no evidence within the meaning of Sec. 3 of the Evidence Act against these five persons and it is surprising that the learned Additional District Magistrate convicted them without there being any evidence on record against them. It appears from the perusal of his order that he treated the confession of the other nine accused as substantive evidence against these five persons and convicted them on its basis. I have looked into the statements of other accused and find that none of them had said a word against these five persons involving them in the alleged offence. Each one of them had said that he was guilty and no more. Thus, there was not even a confession of the co-accused. Furthermore it may be pointed out here that in Kashmirasingh vs. The State of Madhya Pradesh (1), it was observed by their lordships of the Supreme Court that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible form the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. " Their Lordships quoted with approval the following observation of their lordships of the Privy Council made in Bhubon Sahu vs. The King (76 Indian Appeals. 147 ). "it (confession of a co-accused) does not indeed come within the definition of "evidence" contained in Sec. 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination. "
In Nathu vs. State of Uttar Pradesh (2), it was again observed by their Lordships that "confessions of co-accused are not evidence as defined in sec. 3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as lending assurance to that conclusion and for fortifying it. "
Again, in Haricharan Kurmi vs. The State of Bihar (3), it was observed by their lordships of the Supreme Court as follows: - "as we have already indicated this question, has been considered on several occasions by judicial decisions and it has been consistently held that confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. "
In the light of the said observations even if there were any confession of a co-accused, that could not be treated as substantive evidence against the five accused and conviction could not be based thereon. The Additional District Magistrate has observed that some of the camels which were seized belonged to these five persons. In the first instance he has not pointed out which particular camel belonged to a particular accused. Moreover, it appears that this fact was not brought out in the prosecution evidence. On the contrary, two of the persons, who according to the trial court, had made confession against these five persons came into the witness box and stated that they had borrowed some camels from the family members of these accused persons. This defence evidence was produced by the accused to show that they were involved only on the basis of suspicion and it was very unfair on the part of the Additional District Magistrate to base their conviction on it.
The reference made by the learned Additional Sessions Judge is quite in order. It is, therefore, allowed. , the conviction of five accused persons, namely, Chetram, Sukha, Nandram, Rugha and Ishar under sec. 7 of the Essential Commodities Act, 1955 is set aside and the fine imposed upon them is remitted. If the fine has been realised, it will be refunded to them. .;