- (1.) THIS is an appeal by (1) Kammu, (2) Dalchand, (3) Ramchandra, (4) Mohan and (5) Chitarmal, all residents of Bichoor, against the order of the Sessions Judge, Partabgarh, convicting all the five appellants under sec. 395, Indian Penal Code, and sentencing them to two years' rigorous imprisonment, and further convicting Dalchand of an offence under sec. 4/9 of the Opium Act and sentencing him to one year's rigorous imprisonment. The sentences passed against Dalchand under sec. 395, Indian Penal Code, and sec. 4/9, Opium Act, have been directed to run concurrently.
(2.) STATING the prosecution case, I may commence with an anonymous report Ex. P. 24, dated the 4th August, 1961, received by the Superintendent of Police, Chittorgarh. The person sending the report, who will hereafter be referred to as an informant, stated in the report that in their village Devilal Mehta of Bichhor, is a dealer in opium, that on 1st August, 1961, at night, he sent through hired labourers various quantities of opium through four different routes. The opium sent through three routes passed through the village but the opium sent through the fourth route was seized by the Gundas of the village, and that the opium so seized was 28 seers and 8 chhataks. It was further stated that the opium was still lying undisposed and that Devilal was offering Rs. 3,000/- to the persons who had seized the opium and that the opium was likely to be given back to Devilal. The Superintendent of Police was requested to reach the spot and to take necessary action in the matter. It was further stated in the application that the persons who were hired for carrying the opium were Dalu son of Lachman and Bhoora son of Payara, Kumawats of village Bhichor, and that the persons who had snatched the opium were named as Chhitar, Kamukhan, Ramchandra and Mohanlal. It was added that if the Superintendent of Police were to reach the spot he would be successful just as he had been successful in seizing smuggled gold. The informant also hinted that further facts could be ascertained from Raghunath Gujar and others. The Superintendent of Police, Chittorgarh, by his endorsement dated the 7th August, 1961, forwarded the application to the Circle Inspector, Begun, with a direction to make an enquiry and to submit the report. The Circle Inspector Mushtak Hussain P. W. /13 proceeded to village Bichoor on 13. 8. 1961 and recorded the statement of Dalu son of Laxman, Kumawat, which has been brought on record by the defence as Ex. D. 1. On the basis of Dalu's statement, the Circle Inspector found that some 12 days back Dalu and Bhoora were carrying 18-1/2 seers of opium belonging to Mehta Devilal from the village Bichoor to the well of Kajod 2 hours after the sun set. In the way the accused Dalu S/o Jagannath, Ramchandra S/okashiram,brahmins,kammus/o Gafoor, Mohan S/o Mangilal Kumar and Chhitarmal S/o Moda Kumar of Bichoor, who were armed with guns and lathees encircled Dalu and Bhura and after putting them in fear of death or instantaneous hurt relieved them of the opium on the well of Mulia Mali and thereafter they retained the opium with them without license. He accordingly sent first information report Ex. P. 17 to the Police Station, Nandwai for registering a case. The Circle Inspector at the same time started investigation. During investigation the accused Balchand gave information to the Circle Inspector which was recorded by Kanhaiyalal, Station House Officer, Police Station, Nandwai (P. W/11) at the dictation of the Circle Inspector. That report is Ex. P. 2. In consequence of this information and at the instance of accused Dalchand 23 seers 8 chhataks of opium was recovered from a dilapidated and deserted house belonging to Birdhichand (P. W/12 ). The police further recovered some quantity of opium from a chabutra putside the house of Kammu. After completion of the investigation, the police submitted charge sheets against all the appellants under sec. 395 I. P. C. and sec. 49 of the Opium Act in the Court of Sub-Divisional Magistrate, Begun. The Sub Divisional Magistrate, after enquiry, committed all the five appellants for trial to the court of session, Partabgarh, for these offences. The prosecution examined 14 witnesses out of whom the material witnesses are Dalu (P. W/4) and Bhoora (P. W/5 ). The accused denied the offences and examined four witnesses in their defence. The trial Judge formulated five points for determination, and considering points Nos. 1 to 4 together recorded the following findings (1) That the substance produced before the Court and weighing 23 seers, 8 chhataks was recovered at the instance of accused Dalu on 13. 8. 1961 as detailed in the recovery memo Ex. P. 1. (2) That this substance was opium as defined in the Opium Act. (3) That this opium was being carried by Dalu P. W/4 and Bhoora P. W/5 and was snatched by the five appellants by putting Bhoora and Dalu in fear of instant hurt. He further held that as the opium was found concealed under a 'kadao' and was recovered at the instance of accused Balchand, it must be held that he was in possession of the opium. On these findings, he found all the appellants guilty under sec. 395, Indian Penal Code, and accused Dalchand also under sec. 49 of the Opium Act. The appellants have filed the present appeal and they challenged their convictions and sentences. To prove the offence of dacoity, although the prosecution has examined a number of witnesses, but the Sessions Judge observed, and I think rightly, that the case depends mostly on the evidence of Dalu and Bhoora and that the other evidence is not of substantial importance. It will, therefore, be proper to scrutinise carefully the evidence of these two witnesses in the first instance. Dalu as PW-4 has stated that about 12 months ago, after sunset, Devilal met him in the way and asked him to go to his shop and that when he went to Devi Lal's shop, he found that Devilal was standing at his shop with a gunny bag. Devilal told him that the gunny bag contained opium and asked him to take the bag to the well of Kajod. In the meanwhile Bhoora also reached the spot and a similar request was made to him also. His further evidence is that Devilal promised to give them Rs. 2/- each, for their labour. Proceeding further, Dalu stated that the quantity of opium which each one of them was asked to carry weighed about 15 to 16 seers and while about a furlong from the village the five appellants stopped them. At that time Dalchand and one more person had a gun each and that the other accused were armed with sticks and that all the accused encircled them and the accused Dalchand aimed the gun at them and snatched away the opium that they were carrying. They further asked them to go ahead of them and then they took them to the bari of Mulia and thereafter asked them to run away. He and Bhoora then came to the village and he set out-side his house and informed one Nathu of what had happened. He admitted that he did not inform Devilal of the incident in the night, although he added that Devilal was informed on the next morning. The witness was questioned whether the accused had demanded a bribe of Rs. 200/- from him and Bhoora but he denied the suggestion. He, however, admitted that Ex. D. 1 is the statement which he gave before the police but still denied that the accused ever demanded a bribe of Rs. 200/- from them. The learned Sessions Judge read over the portion C to D of Ex. D-l and then recorded the answer of the accused in the following terms "the accused had demanded a bribe of Rs. 200/ -. They did not hand over the opium of their own free will. The accused had forcibly taken away the opium. The opium was not given voluntarily. " A critical examination of the evidence of this witness reveals the following infirmities in his evidence (1) The conduct of the witness in not going and informing Devilal of the incident is wholly in explicable. If a serious decoity had been committed he would have surely reported the matter to Devilal immediately. He is hardly a man of character. Dealing with this criticism of the witness, the Sessions Judge has observed as follows "it is plain that these witnesses are drawn from the lowest rung of society, but it also can not be lost sight of that the matter of transporting illicit opium can not be expected to be carried on by law abiding citizens. In such a case the evidence of low class witnesses only will be available, and in my opinion, it would not be a ground for rejecting that evidence simply because the witnesses are such who have no status in life. '' If the evidence of the witnesses were to be rejected only on this ground, the observations of the learned Sessions Judge could not be taken objection to but, in the face of other infirmities the evidence required a critical examination and should not have been accepted with an unnecessary degree of credibility. As pointed out above, the omission on the part of the witness to report the matter to Devilal or to the police is a major infirmity in his statement. Besides, there are other circumstances which throw considerable doubt on the truth of the prosecution case and consequently, upon the credibility of the evidence of this witness. It is in evidence that even though the witness informed Devilal of the incident next day, Devilal, in his turn, made no report to the police. The matter came to the notice of the police only through an anonymous report Ex. P-24. The contents of this document have also a good deal of significance. In the first instance, all that was stated in the report was that the opium was seized by the Gundas of the village. It was further stated in the report that Devilal was negotiating for the return of the opium and was offering Rs. 3,000/ -. Ex. P-24 merely names four persons, namely, Chhitar Kumar, Kammu, Ramchandra Brahmin and Mohan Kumawat, who seized the opium. The name of Dalchand was not at all mentioned. Considering the mention of the names of the owner of the opium, the quantity of the opium and other details in the report, it can easily be inferred that the informant had obtained information either from Devichand or from Dalu PW/4 or Bhoora PW/5, or from both of them. In this context the contents of the report not referring to the case of dacoity are of great importance. This circumstance must be taken to throw good deal of doubt on the correctness of the evidence of Dalu PW/4. Lastly, there are material contradictions in the various statements of this witness. In his statement at the trial, the witness stated that they had offered Rs. 100/- to the appellants and requested them to let them go. This fact was not mentioned in his earlier police statement. Similarly, in his earlier police statement the witness had stated that the appellants had demanded Rs. 200/- from them but they had no money to pay to them. This fact was denied by the witness in his statement in court. Yet another contradiction in his statement at the investigating stage and at the trial stage relates to the place where the dacoity was committed. At the police stage the case was that the dacoity was committed at Mulia's bari where they had been taken by the accused whereas, at the trial stage his statement is that the opium was snatched away at the 'khal' near Birdha's field, and thereafter he was taken to Mulia's bari. These contradictions certainly adversely affect the evidentiary value of his statement. The learned Deputy Government Advocate pointed out that the portions in the police statement of the witness which are contradictory to the statement in trial, were not specifically put to the witness and, therefore, these contradictions should be given no importance. After considering the markings of the Sessions Judge over some portions of the statements, I have come to the conclusion that the markings have not been quite accurate. The trend of the cross examination clearly indicated that the witness was sought to be contradicted with his earlier statement. It is regrettable that the Public Prosecutor, the defence counsel and the Sessions Judge were all indifferent in the matter of the proper marking of the portions of the earlier statements with which the witness was sought to be contradicted. Considering all these infirmities in the statement, I have no hesitation in rejecting his evidence as unreliable to sustain the charge of dacoity. The evidence of Bhoora PW/5 is more or less of the same type. He is besides a history-sheeter and a previous convict. For reasons given in detail in connection with the testimony of Dalu PW/4 his evidence also must be treated as unreliable and insufficient to sustain the charge of dacoity. The Sessions Judge has, however, relied upon the evidence of recovery of opium at the instance of Dalchand from a deserted house belonging to Birdhichand in support of the charge of dacoity. Dealing with points Nos. 1 to 4 formulated by him, the Sessions Judge in para 5 of the judgment recorded the conclusion that the substance produced before the Court and weighing 23 seers 8 chhataks was recovered at the instance of accused Dalchand on 13. 8. 1961 as detailed in the recovery memo. He has stopped at this stage and has not recorded a further conclusion whether the opium was recovered from the possession of the accused or not. At an earlier stage the learned Judge observed that the house of the accused Dalchand adjoins the isolated house of Birdhichand and, therefore, it would be quite easy for the accused to keep opium in this isolated house. This suggests that the Sessions Judge was contemplating that the opium was in possession of the accused Dalchand. At a later stage of the judgment while dealing with the offence under sec. 4/9 of the Opium Act the Sessions Judge has of course categorically held that the opium was recovered from the possession of the accused. It appears that the Sessions Judge had assumed the possession of the accused in respect of the opium on the basis of the recovery of the opium at the instance of the accused and saw no distinction between a finding of exclusive possession of the opium by the accused and a finding as to the recovery of the opium at the instance of the accused. The first important question which requires determination is : whether the opium was recovered from the possession of the accused or not. Admittedly the house from which the opium was recovered is a dilapidated and deserted one. The Sessions Judge himself has pointed out in para 5 of the judgment that anybody could get into the house as the outside walls of the house were only 4 feet high. The place was thus open and accessible to all and sundry. The recovery of opium at the instance of accused Dalchand from such a place is consistent with the explanation of the accused having only seen some body putting the opium there. Such a recovery is not sufficient to establish the possession of the accused over the property recovered. Reliance may be placed in this connection upon Trimbax vs. The State of Madhya Pradesh (1 ).
(3.) THE Deputy Government Advocate, however, relied upon the evidence relating to the information given by the accused leading to the discovery of opium. THE Sessions Judge in his judgment has referred to this information in the following words Initially in para 5, the learned Judge stated that Kanhaiyalal, Station House Officer, deposed that after arrest accused Dalchand told him that the opium in question was in the deserted house of Birdhichand and that the information given by the accused was reduced to writing and that writing is Ex. P 2. At a later stage the learned Judge further observed "that the witness (refer to Devilal) stated that in his presence accused Dalchand told the police that he would get opium recovered and that Ex. P-2 bore his signatures. This is all what the Sessions Judge has said with regard to the information given by the accused leading to the discovery and which is sought to be relied upon by the Deputy Government Advocate. It may, however, be pointed out that the Sessions Judge is also factually not right when he says that the witness Devilal stated that in his presence accused Dalchand told the police that he would get the opium recovered. Devilal PW/2's statement on the point, however, is that Dalchand Mahajan did not state to the police in his presence that he would get the opium recovered. Ignoring, however the factual error committed by the Sessions Judge, I must observe that the Sessions Judge did not at all refer to any portion of the information which would prove the possession of opium by the accused. Even so, the Deputy Government Advocate took me through the statement of Kanhaiyalal (PW/11) and Mushtak Hussain (PW/13) and the contents of Ex. P-2 to establish the possession of opium by the accused Dalchand. Before scrutinising the evidence relied upon by the Deputy Government Advocate, it will be proper to examine the law as to the mode of recording information and of proving it, since the Sessions Judge does not appear to be very clear in his mind as to the proper use of the information given by the accused leading to the discovery. Sec. 60 of the Evidence Act provides that oral evidence must, in all cases, be direct, and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard (it ). It follows that the witness proving the information must state in Court what the information was and a mere formal proof of the memo of information by proving the signatures of the Police Officer who recorded it, will not be sufficient. In support of this conclusion I may refer to some of the cases bearing on the point. In Mohammad Salabat vs. Emperor (2), Civil Surgeon appeared as a witness and deposed in his statement that the observations made were detailed in Ex. P. D. , a carbon copy of medico-legal register. Commenting as to whether the contents of the report could be relied upon, the learned Judge observed as follows "that is the only reference to the carbon copy and the medical witness was not even asked to depose formally that everything in the register was correct. The last para in the carbon copy is "opinion" no signs of rape noted. She is married and used to sexual inter-course. This is what the Magistrate is referring to not very accurately in his judgment. There is a common practice in this province of referring to statements in the first information reports, medico legal-reports and so forth as if they were evidence. This is not justified by law. The proper course is for the witness to refer to the document which he has prepared at the time under sec. 159 Evidence Act, and state in Court everything which the prosecution or counsel for defence or the trying Magistrate or Judge considers material. " This was no-doubt a case of the medico-legal report but the observations made are equally applicable to the information memos prepared in connection with information given under sec. 27 of the Evidence Act. The following observations in In re Killi Seetha Rami Reddy (3) are to the same effect : " In the first place, the learned Sessions Judge has treated all the panchayatnamas (Exs. R, J,j-1,k and L) as substantive evidence, which is quite wrong. . . . . . . . But there is no provision of the Evidence Act by which such documents can be used as substantive evidence. If they are prepared at the time they can be used by the witnesses for the purpose of refreshing their memories in the witness box under sec. 159, Evidence Act, but in themselves they are not evidence. In the present case, for example, the witnesses who have written or signed the panchayatnamas could have said in the witness-box what was the information which the accused gave leading to the discovery of the clothes, and could have referred to the panchayatnamas in order to refresh their memories. They did not do so, and consequently, there is no admissible evidence of the information which the accused gave. " I entirely concur with the observations made in the above cited cases. It may be pointed out that Mr. Magraj also contended that the information memo suffers from yet another infirmity in that it has not been recorded in the language spoken by the accused. The manner of recording and proving information given by the accused leading to the discovery of fact or facts has been the subject matter of comment in some cases argued before me and I consider it proper, and useful, to briefly indicate the procedure which should be adopted in the matter of recording and proving information as referred in sec. 27 of the Evidence Act. (1) Whenever a police officer is intimated that the accused proposes to give information leading to discovery he should proceed to record it as far as possible in the language spoken by the accused and in the first person, otherwise, doubts are likely to be entertained as to the accuracy and correctness of the information. (2) Although as a matter of law the presence of motbir witnesses at the time of recording information is not necessary but as a matter of prudence the police officer should secure the presence of motbir witnesses, if such witnesses are available without much inconvenience or difficulty. The presence of the motbir witness at the time of recording the information and the subsequent production of a motbir witness are likely to lend considerable support to the testimony of the police officer. (3) As regards the proving of such information, ordinarily the police officer or motbir witness should state in Court from memory what information was given by the accused and, if such a witness is in a position to give the precise information he should do so without referring to the written memo containing the information. (4) If the police officer or the motbir witness on account of lapse of time or otherwise, is not in a position to state with the help of memory what the information was thus makes out a case for referring to the memo for refreshing his memory, he is entitled to do so. But, even then he should not merely remain content by proving his signatures on the information memo but should reproduce in Court the information given. The learned Deputy Government Advocate made a submission that a witness failing to remember the information need not reproduce information after refreshing his memory with the information memo and it will be substantial compliance with law if the witness states in Court that information was either recorded by him or in presence and was correctly recorded and formally proves it. I am, however, clear that the proper and strictly legal course is the one indicated by me earlier; at any rate, it is more appropriate than the one canvassed for by the Deputy Government Advocate, although it is not necessary to pronounce finally on the submission of the Deputy Government Advocate for the purposes of the present case since in the present case even such course has not been followed as will be seen from the discussion of evidence following presently. ;