P.N.Goel - (1.) APPELLANT Khyali has been convicted and sentenced under section 395 IPC to undergo RI for 5 years.
(2.) THE V Additional Sessions Judge Moradabad has convicted the appellant on the basis of two piece of evidence : (1) Evidence of Anil Kumar (PW 1), who identified the appellant in test identification proceeding held on 18-9-1972 by Sri J. K. Paliwal (PW 4). (2) Sri Om Prakash Tyagi, Station Officer, Police Station Chandausi (PW 7) arrested Khayali on 15-6-1972 by about 12. 30 noon in connection with an offence under section 60 of the U. P. Excise Act. At that time Khyali was putting on shirt Ex. 2. This shirt was taken into custody by O. P. Tyagi. A piece of cloth Ex. I was found attached to the truck of Digvijay Singh (PW 3) which was looted on the night between 13th and 14th June 1972 at level crossing near Behatri railway station. Sri Om Prakash Mani Tripathi (PW 5) expert Scientific Section Lucknow, after a careful examination, expressed the opinion that the piece of cloth Ex. 1 was a part of the shirt. The record has been examined with the assistance of the learned State counsel.
(3.) THE appellant did not admit that at the time of arrest by the police he was putting on shirt Ex. 2. On behalf of the prosecution, on this point there is the sole evidence of Sri O. P. Tyagi, Station Officer. It is undisputed that O. P. Tyagi arrested Khyali appellant in connection with an offence punishable under section 60 of the U. P. Excise Act. THErefore, it does not stand to reason that the shirt of the appellant would have been taken into custody by O. P. Tyagi. Moreover, there must have been public witnesses at the time of the arrest and recovery of excisable articles from the possession of Khyali. Those Witnesses could be made witnesses on the recovery memo of the shirt Ex. 2. THE memo Ex. Ka 8 clearly shows that no man of the public was there. This memo has been attested by two Sub-Inspectors Dharam Pal Singh and Indravir Singh. In the above circumstances the solitary evidence of O. P. Tyagi cannot be believed that the shirt Ex. 2 was taken from the possession of the appellant at the time of his arrest. In this connection it is further to be pointed out that no prosecution witness stated on oath that the piece of shirt Ex. 1 was a part of the shirt Ex. 2. There is bare testimony of the expert Om Prakash Mani Tripathi. Opinion of an expert cannot be substantive evidence in the case. It is the opinion of a third person and can be used for the purpose of corroboration. Therefore, the opinion of Sri O. P. Mani Tripati has to be ignored.;