STATE OF GUJARAT Vs. RAIJIBHAI CHATURBHAI SOLANKI
LAWS(GJH)-1960-7-21
HIGH COURT OF GUJARAT
Decided on July 08,1960

STATE OF GUJARAT Appellant
VERSUS
RAIJIBHAI CHATURBHAI SOLANKI Respondents


Referred Judgements :-

EMPEROR V. KISAN NARAYAN [REFERRED]
EMPEROR V. SHANWAR MANU KOLI [REFERRED]
AHER RAJA KHIMA VS. STATE OF SAURASHTRA [REFERRED]



Cited Judgements :-

CHUNILAL CHHAGANLAL VS. STATE OF GUJARAT [LAWS(GJH)-1961-2-7] [REFERRED]


JUDGEMENT

V.B.RAJU - (1.)This is a reference by the learned Session Judge Kaira at Nadiad recommending that the conviction of one Raijibhai in Summary Case No. 1164 of 1959 tried by the III joint Civil Judge J. D. and Judicial Magistrate First Class Nadiad under section 69 of the Bombay Prohibition Act and sentence of fine of Rs. 200/in default rigorous imprisonment for 3 months should be set aside.
(2.)The prosecution case was that when the house of Raijibhai in the village of Dabhan was raided by the Head Constable of Nadiad Rural Police Station at about 7 A. M. on 9-7-1959 in the presence of two Panchas 25 sears of Mhowra flowers in a gunny bag were found inside the house and as he had no pass or permit for the possession of Mhowra flowers he was prosecuted At the trial the evidence of the head constable was supported by the two Panchas both of whom were treated as hostile. According to the two Panchas the Mhowra flowers were not found inside the house but outside the house of the accused. Following the principles laid down by the Bombay High Court in Emperor Vs. Shanwar Manu Koli 52 Bombay Law Reporter 38 and Emperor Vs. Kisan Narayan 52 Bombay Law Reporter 280 the learned Magistrate observed that no Court should convict the accused on the uncorroborated testimony of the Police Officer whenever it was obligatory to make a search in the presence of the Panchas. He however held that in the case tried by him there was corroboration in the fact that the Mhowra flowers were lying outside the house of the accused and that in the certificate appended to the Panchnama was stated that the Mhowra flowers were found in the house of the accused i.e. therefore held that there was sufficient corroboration to the evidence of the Police Head Constable and he thereupon convicted Raijibhai under sec. 69 of the Bombay Prohibition Act for having been in possession of Mhowra flowers.
(3.)In revision the learned Sessions Judge realised that the case turned on appreciation of evidence but according to him the appreciation of evidence by the Magistrate was so unreasonable that it amounted do miscarriage of justice. According to the learned Sessions Judge the search in this case was one to which section 103 Criminal Pro. Code applied and therefore it was obligatory in the police to make the search in the presence of two independent Panchas It was conceded before the learned Sessions Judge by the learned Public Prosecutor appearing before him that in this case the presence of the Panchas at the time of the search was obligatory. But as the Panchas did not support the prosecution case the learned Sessions Judge was of the view that unless there was corroboration to the Police Officers evidence the latter cannot be accepted by the Court. The learned Sessions Judge then considered the view taken by the learned Magistrate that there was corroboration to the Police Officers evidence in the fact that the Mhowra flowers were outside the house of the accused in the fact that the Panchnama was signed by the Panchas and in the fact that the certificate was appended to the Panchnama stating that the Mhowra flowers were taken from the house of the accused. In the view of the learned Sessions Judge these circumstances did not amount to corroboration of the Police Officer. He also held that the certificate had not been proved by the prosecution and was inadmissible in evidence. For these reasons the learned Sessions judge took the view that the learned Magistrate was wrong in holding that the evidence of the Police Head Constable had been corroborated. The learned Sessions Judge also rejected the contention of the learned Public Prosecutor that there was also corroboration in the fact that the Panchnama had been signed by the Police Officer. The learned Sessions judge was of the view that a Panchnama is nothing but a statement made by the Panchas to the Police Officer and cannot be used to corroborate the Police Officers evidence but it can be used only to corroborate the evidence of Panch witnesses. The learned Sessions Judge therefore held that the learned Trial Magistrate had wrongly observed that the Police Head Constables evidence had been corroborated while in fact it had not been. For these reasons he was of the view that the conviction resulted in miscarriage of justice and he therefore made a reference to the High Court recommending that the conviction be set aside.
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