GUMAN MAL LODHA, J. - (1.) THE state of Rajasthan has filed this appeal against the acquittal of the accused-respondent from the offence of S. 4,9 of the Opium Act.
(2.) THE respondent, Rattiram was alleged to have opium as per the information received by Rameshwar Dayal Head Constable of Police Station, Bakani (Jhalawar district) on 25. 8. 71. A trap was arranged towards the village Motipura along with the police party. In the morning at about 2. 00 a. m. accused was sighted and spotted. He has intercepted and 500 gms opium was recovered from one bag and 800 gms opium from another bag. THE memo was prepared at the site in the presence of motbirs. Rattiram was arrested. THE samples were sent to the Public Analyst which were found to contain morphine. THE challan was produced after usual investigation. After trial the accused respondent was acquitted. Primary reason for acquittal is that the motbirs have turned hostile, Shri S. B. Mathur, the learned Public Prosecutor submitted that even if the motbirs are not trust worthy and they have turned hostile, the statement of Rameshwar (PW 11) and Devilal (PW 1) should be believed who are police officials. Shri P. K. Sharma, the learned counsel for the accused respondent has submitted that this is an appeal against acquittal and if two views are possible, the acquittal should be upheld. Shri Sharma submitted that the witnesses of trap are partisan and since the independent witnesses have not supported the prosecution case, the acquittal should be upheld. The opium alleged to have been recovered is 500 gms. and 800 gms. Devilal (PW 1) has stated that he along with other persons of the police party waited in ambush. When Rattiram came, they saw having a small bundle of turban in possession of Ratti Ram. This small bundle was got opened and it was found that there was opium in it. Rameshwar and Champalal etc. were there. In cross-examination this witnesses has stated that Rattiram also tried to run away as his companions ran away but he could not succeed. Small bundle of opium was lying on the ground. The other witness who has supported the prosecution case is Rameshwar (PW 11) who is also head constable in police. According to him, when the accused was apprehended, he tried to run away but he was caught. One bag was found with him and he mentioned that other bag has been thrown near the well. Both bags were taken and it was found that there was opium. In cross-examination the version of this witness is that he saw one small bundle in his hand and the other was thrown on the ground, Both were not covered in turban but only one was covered and wrapped in a turban. From the above, the learned counsel for the accused submitted that there is contradiction between the prosecution version and the recovery and, therefore no interference should be made in appeal against acquittal.
(3.) SHRI Mathur on the contrary has submitted that the recovery memo, site inspection memo corroborated the statement of these witnesses and the substance of the allegation is that there were two bundles which the accused was bringing in his turban, tied to his hand and out of them, when he was apprehended he tried to throw on the ground and one was thrown on the well and one was found in his hand. I have carefully considered all the statements of the witnesses. It is true that the witnesses could have been called independent witnesses and were trusted as motbirs have turned hostile. However, the hostile witnesses cannot provide protective umbrella of defence as it would tentaraount to put premium on dishonest and falsehood. The hostile witnesses have signed recoveries memo and never made any complaint of their signatures by fraud and they cannot treat the courts with scant regards by disowning. So far as two police employees mentioned above, viz. , Rameshar (PW 11) and Devilal (PW 1) are concerned, their evidence, in my opinion, is not tainted or interested as they on receiving information waited in ambush after arranging a trap in the dead of the night and recovered stuff opium. ;