State of Rajasthan v. Bhagirath (114) — 1990 DIGILAW 524 (RAJ)

N.L. TlBREWAL, J.—Feeling aggrieved against the order of acquittal, dated June 28, 1978, passed by the learned Addl. Sessions Judge, Bhilwara, in Sessions Case No. 54/77 (73/77), this appeal has been preferred by the State of Rajasthan against the respondents. 2. Briefly speaking the prosecution case is that PW/1 Devilal, Sub-Ins-pector in Narcotics Department, received information from a Mukhbir (informant) that in a Car No. R.S.L. 3324 four accused persons were smuggling opium illegally. On receipt of this information and after obtaining directions from District Opium Officer, Chittorgarh, Devilal Sub-Inspector, accompanied by Constables, reached at Raila Railway Crossing No. 54 B, in the night of May 11, 1976. In the morning at about 3.40 A.M. a car, coming from the side of Bhilwara, was seen and, as such, the police party was allerted and the railway crossing was closed. It is alleged that the said car stopped about 1/4 furlong away from the railway crossing and the Sub-Inspector and his party persons immediately reached there in the Jeep which they were having. Devilal, Sub-Inspector, immediately went to the driver of the car, in order to catch hold of him. He caught the driver and also took the key of the car in his possession. However, in the meantime, the person who were sitting in the car, succeeded in running away. It is alleged that the other police constables chased them and in the process of chasing, one of the miscreants made a fire from his revolver and in reply, the Constable, Chaturbhuj also made fire from his gun in their defence. The unfortunate part of the incident was that all the four occupants of the said car, who are said to be smugglers of the opium, succeeded in running away, inspite of the fact that the Sub-Inspector was having constables of the Narcotic Department and they had also one jeep to chase the miscreants. 3. It is further alleged that from the dicky of the car five bags containing 108. 400 Kgs. of opium were seized. Seizure memo was prepared at the spot. Sample was also taken from the seized opium and proper sealing of the recovered opium as well as the sample was made. A report of this incident was made by Sub-Inspector Devilal at Police Station Banera, District Bhilwara. On this report, the police registered the criminal case u/s 4/9 of the Opium m Act. 4. Sample was also taken from the seized opium and proper sealing of the recovered opium as well as the sample was made. A report of this incident was made by Sub-Inspector Devilal at Police Station Banera, District Bhilwara. On this report, the police registered the criminal case u/s 4/9 of the Opium m Act. 4. Accused persons Were arrested and a charge sheet was filed against these persons, including the respondents. However, the co-accused Dhanram and Mepaiyaram were discharged and the accused-respondent Nandlal was charged u/s 4/9 of the Opium Act while the other three respondents were charged u/ss 307/34 and s.323/34 IPC and u/s 4/9 of the Opium Act. 5. During the trial, the prosecution examined as many as 15 witnesses. The learned trial court, after completion of the trial, and after making a critical analysis of the prosecution evidence, acquitted all the accused persons by his judgment dated 28.6.78. As stated above, the State has come in appeal aggrieved against the aforesaid order of acquittal of the respondents. 6. I have heard the learned Public Prosecutor as well as the learned counsel for the respondents. 7. The contention of the learned Public Prosecutor is that so far the respondent Nand Lal is concerned, he was a car driver and he was caught there on the spot. As such, the court should have presumed that he had the knowledge about the opium being in his car and he had conscious possession of the same. So far the respondent Arjun is concerned, the argument is that in the statement of Kanhaiyalal, PW/11 it is proved that this accused had hired the car in question, which is a taxi car, and he had gone in the said car. Further, the accused Nandlal in his statement u/s 313 Cr. P.C. has also stated that he was one of the miscreants in smuggling the opium. So far Bhagirath and Deva accused are concerned, the learned Public Prosecutor submits that they have been identified by PW/1 Devilal and there is a further corroboration from the statement of Nandlal, recorded u/s 313 Cr. P.C. 8. On the other hand, the learned counsel for the respondents, supported the judgment of the trial court and it has been further contended that the findings arrived at by the learned trial court are neither perverse nor arbitrary. P.C. 8. On the other hand, the learned counsel for the respondents, supported the judgment of the trial court and it has been further contended that the findings arrived at by the learned trial court are neither perverse nor arbitrary. As such, it does not call any interference in the order of acquittal. The learned counsel further submitted that the entire evidence on the record does not prove the guilt against the accused beyond reasonable doubt, though it may create some suspicion against them but suspicion alone, however strong it may be, cannot be sufficient for recording the conviction. He further submits that the learned trial court has taken into consideration each and every fact and each evidence has been minutely considered and appreciated and there is absolutely no infirmity in the appreciation of evidence. 9. I have given my consideration to the rival contentions made by the learned counsel. 1 am also conscious of the fact that it is a case in which 108. 400 Kgs. of opium was seized by the Narcotic Department. At the same time, I am constrained to observe that there has been lapses and lapses on the part of the Narcotic Police force at the time when the opium was seized from the car and also subsequently at the investigation stage also. It is unthinkable that the Sub-Inspector who was accompanied by a number of Constables of his Department, who were fully armed with weapon like gun and were having a jeep in their possession, allowed to escape the miscreants and failed to catch hold them, after chasing them. In the normal course, it would not have been possible had the constables and the Sub-Inspector been allert enough. It may also be that they deliberately permitted the miscreants to escape from the clutches of the law. Be that as it may, this Court cannot make any inference against the accused from this fact, and the court has to examine the case against accused respondents, on the basis of the evidence. 1 would like to consider the case of each of the accused respondent separately, so as to appreciate the case in a better manner against them — 1. Accused respondent Arjun:- 10. It is note worthy that the name of this accused does not find in the FIR as one of the persons alleged to be involved in the smuggling of the opium. Accused respondent Arjun:- 10. It is note worthy that the name of this accused does not find in the FIR as one of the persons alleged to be involved in the smuggling of the opium. Neither PW/I Devilal, the Sub-Inspector, Narcotic Department, who was the Incharge of the raid party, nor any of the constables, namely, PW/2 Ratan Dass, PW/3 Chaturbhuj and PW/14 Mohanlal has identified this accused, either in the court or in the identification parade, as one of the miscreants in smuggling the opium. The only evidence against this respondent is the statement of PW/11 Kanhaiyalal. Kanhaiyalal has stated that the accused-respondent Arjun came to him to hire a car about 1 1/2 years ago. Then he gave the date of hiring as 11.5.76. He further stated that the accused respondent Arjun had hired the car for Rs. 300/- and he told at a time that he was to go to village to meet his persons who were working there. He further stated that the driver of the said car was Nandlal. Arjun took that car and thereafter the car was not returned in the afternoon or in the night and thereafter he came to know that his said car was seized at Raila railway crossing in connection with opium case. He further stated that he had identified the accused Arjun in the identification parade. He also admitted his signatures on the memo of identification parade Ex. P/5 marked E to F and C to D. In cross-examination he stated that he had gone thrice to identify the accused but at two times the identification parade was not held and some future date was given. He further stated that he identified the accused respondent when the identification parade was held in his third visit. He further stated that he had gone to Police Station Banera for seeking custody of the car and it was earlier than the identification parade was held. He further stated that ordinarily his own driver drived the car and Nand Lal driver used to drive the jeep of one Hemant Dass Sindhi. However, he contacted Nandlal as he was on leave on that day and his services were procured as driver on payment of Rs. 10/-. This witness also stated that he could identify the accused Arjun in the parade because his face was in his mind. 11. Ex. However, he contacted Nandlal as he was on leave on that day and his services were procured as driver on payment of Rs. 10/-. This witness also stated that he could identify the accused Arjun in the parade because his face was in his mind. 11. Ex. P/5 is the memo of identification parade which was held on 16.9.76. Thus, the identification was held after four months of the alleged incident. At the time of identification parade this witness Kanhaiyalal did not give any particulars of the features of the person who had hired the car and he only stated that he had come to identify the person who had hired the Ambassodor car No. RSL 3324. It is further note worthy that this accused had disclosed at the time of identification parade that he was shown to the witness at Police Station Banera. 12. PW/10 Bhanwar Lal Sharma who was Munsiff and Judicial Magistrate, Bhilwara, conducted the identification parade on 16.9.76. He stated that on 13.9.76 an application was made by Police Banera for holding the identification parade and he fixed 16.9.76. for holding the parade and SHO was directed to procure the witnesses himself. He further stated that a joint parade of all the accused Was held in which 29 persons were mixed. He further stated that the witness Kanhaiyalal alone had identified the accused Arjun. The witness further stated that at the time of holding the parade Kanhaiyalal only told him that he had come to identify the person who had hired his car and he did not give out the name at that time. He further stated that accused Arjun told at that time that the witness Kanhaiyalal was with him at police station Banera. He further stated that the witnesses did not disclose the features of the accused at the time of the parade. Now, two questions arise for consideration, namely- (l) Whether the statement of Kanahaiyalal about the identification of the accused Arjun is acceptable and (2) Even if the Statement of Kanhaiya Lal is accepted, then whether it is sufficient to hold the respondent Arjun guilty for the offence under which he has been charged. 13. So far the identification parade is concerned, the learned counsel for the respondent has raised the following objections:- 1. 13. So far the identification parade is concerned, the learned counsel for the respondent has raised the following objections:- 1. That the identification parade was held after four months of the incident and after a lapse of this period, it was difficult, if not impossible, to identify the person who had hired the car from Kanhaiya Lal. He further submits that Kanhaiyalal witness did not give any particulars of the features who had hired the car, either at the time when his statement u/s 161 Cr. P.C. was recorded or at the time when the identification parade was held on 16.9.76. 14. The learned counsel has relied on Wakil Singh vs. the State of Bihar (1) para No. 2 of the said judgment relied upon by the learned counsel is reproduced as under:- "2. In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity nor did the witnesses give any identification marks viz. stature of the accused or whether they were fat or thin or of a fair colour or of a black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, a part from the reasons that were given by the trial court. The High Court, however, has chosen to rely on the evidence of a single witness, completely over-looking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the II parade about 3 1/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness." 15. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness." 15. The learned counsel also relied upon Yad Ram vs. The State of Rajasthan (2) in which the identification parade was held after three weeks and the witnesses did not give the description of miscreants as such this evidence was not relied upon. 16. The learned counsel also relied upon Anwar vs. State (3) and brought to the notice of this Court that it should be satisfied on the five facts mentioned in that judgment before accepting the evidence of identification and they are:— "Evidence of identification can be accepted only if the court is satisfied that (1) the witness had atleast a fair, if not good opportunity of seeing the dacoits which naturally raises the question of sufficiency of light and proximity of the witness to the offenders, (2) that the identification parade was held within a reasonable time of the incident, (3) that the witness has reliable powers of observation to be judged from the facts that the parade was not made too easy for him to pick out the suspect and that he did not commit so many mistakes that would create doubt in the mind of a reasonable man (4) that the statement of the witness that he did not know the suspect from before is believable and (5) that the witnesses were not given an opportunity to see the accused after their arrest, and that the investigation conducted in the case inspires confidence". Some facts are not in dispute, namely, that PW/11 Kanhaiyalal is the only witness who has identified the accused. The identification parade was held after four months of the incident and the witness did not disclose either the name or the features of this accused prior to the identification parade. Normally, such identification parade has very little evidentary any value and it is not safe to act upon this evidence alone, that too of a sole witness, for convicting the accused. As already stated above, no other witness has identified this accused in the identification parade or in the court to connect him with the crime. Normally, such identification parade has very little evidentary any value and it is not safe to act upon this evidence alone, that too of a sole witness, for convicting the accused. As already stated above, no other witness has identified this accused in the identification parade or in the court to connect him with the crime. Therefore, 1 am of the view that even for the argument sake this witness could have kept the memory about the features of this accused in his mind, for a period of four months and was in a position to identify him in the parade, then too it is not safe to convict the accused on the basis of this evidence alone, and that too of a sole witness. 17. There is one more important factor to be considered regarding this accused. The statement of PW/11 Kanhaiyalal is only to the effect that the respondent Arjun had hired his ambassador car at Ajmer. It is not the prosecution case that the contraband opium was placed in the car at Ajmer or that the other accused persons were also there at that time. The evidence of Kanhaiyalal, at the most, may lead to the conclusion that the respondent Arjun had hired his car for going to village Chanderiya. But this evidence does not proceed further. From this evidence it cannot be inferred that this accused would have remained through out in the car, till the opium was seized next day at 3.40A.M. From this circumstances alone, no irresistable inference can be drawn against this accused that after hiring the car he remained sitting in the car through out, then the other co-accused boarded in the car and he also continued to remain in the car and that he was also present when the car was checked and the opium was seized. None of the witnesses who were present at the time when the opium was seized has identified the accused. Thus, even if the statement of Kanhaiyalal is accepted, that this accused had hired his car, it cannot connect him with the crime, beyond reasonable doubt. There may be a grave suspicion against him but the suspicion cannot take the place of evidence. 18. Thus, even if the statement of Kanhaiyalal is accepted, that this accused had hired his car, it cannot connect him with the crime, beyond reasonable doubt. There may be a grave suspicion against him but the suspicion cannot take the place of evidence. 18. The argument of the learned Public Prosecutor that the statement of PW/11 Kanhaiyalal gets corroboration from the statement of Nandlal, accused, recorded u/s 313 Cr.P.C. I am afraid to accept this contention. S. 313 Cr.P.C. is meant for the purpose of enabling the accused persons to explain any circumstances appearing in the evidence against him. The statement against other accused, cannot bind them and it cannot be taken as an evidence against them. If such evidence is considered against the co-accused, who has no right to cross-examine, serious implications may rise to the prejudice of the co-accused. Further, Nand Lal accused has completely tried so exonerate him from the Crie and even if we take the aid of S. 31 of the Evidence Act, then too no benefit can be achieved by the prosecution. Firstly, S. 31 can be invoked, if confession is made by one of the accused, effecting himself and then the Court may take into consideration such confession against other accused persons. In his statement u/s 313 Cr.P.C, Nand Lal accused, has not made any confession connecting him with the crime, as such S. 31 cannot be invoked. Further, any such confession made by a co-accused does not take the place of evidence in a general way. Such confession against co-accused can be taken into consideration for seeking assurance in support of finding arrived at on other evidence independently. 19. What can be the value of the confession of the co-accused, has been considered in Haricharan Kurmi v. State of Bihar (4) and the Supreme Court observed as under:- "Thus, 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 necssity of seeking for an assurance in support of its conclusion., deducible from the said evidence. In criminal trials there is no scope for applying the principle of moral conviction or grave suspicion. 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." Thus, taking the entire material on record, against the respondent Arjun, I am fully convinted that no error of law or fact has been committed by the learned court in acquitting this accused. 2. Accused-respondent Bhagirath and Deva Ram : 20. Against these two accused, the only evidence is of PW/1 Devilal who claims to have identify these persons while they were running from the car. PW/1 Devilal , has stated that after seeing a car approaching at the railway crossing, he got his jeep started. He further stated that the car stopped at a distance of 1/4 furlong from the railway crossing and the light of the car was off. This witness then asked the driver of the jeep to switch off the light of the jeep and then the jeep was taken near the car. Then he saw the number plate of the car and it was having the same number as given to him by the informant. Then, immediately he got down from the jeep and caught hold of the driver and took the key of the car in his possession, while the other persons who were sitting there in the car ran away. He further stated that those four persons ran away and then he heard the sound of the gun fire. Then he again heard the second sound of gun fire towards the side those persons had ran away. About the identification of the accused, the witness stated that when they were running from the car, he could identify them. He also stated to have identified these two accused in the parade. In the cross-examination he admitted that he had gone twice to identify the accused persons in the parade. He also stated that he committed two mistakes in the same parade. He also stated to have identified these two accused in the parade. In the cross-examination he admitted that he had gone twice to identify the accused persons in the parade. He also stated that he committed two mistakes in the same parade. He also admitted that at the time of the identification parade the accused had objected that they were shown to him at the police station, but this fact was denied by him. He further stated that in the parade there were 20-25 persons and the accused were bare headed, while other persons who were mixed might be having turbans. He further admitted that when he gave the report to the police he did not give the description of the accused persons about their features. He also did not disclose these facts in the statement to the police. He further stated that he could not see what were in the hands of the persons who had ran away at that time, as he Was busy in catching hold of the driver. He was also unable to say whether those persons were sitting on the back seat or the front seat of the car. Then he said that the distance of the persons who ran away from the car was about 15 ft. when he saw towards them. On a pointed question, the witness replied that he had seen the face of the accused from one side and on account of their height, he could identify them in the parade. He also stated that on the date fixed for the identification parade he had reached at 10.00 A.M. while the parade was held at 4.00 p.m. 21. PW. 10 Bhanwar Lal Sharma, Munsif and Judicial Magistrate, who conducted the identification parade has stated that there were joint identification parade of all the accused persons. He further stated that at the time of the parade the accused respondents Bhagirath and Deva Ram had made a complaint that they were seen by the witnesses. He also stated that no features of the miscreants were given out by the witnesses prior to holding the identification parade. 22. The statements of PW/13 Khadeen Hussain, SHO, is also very important. He has stated that he had taken these two accused in his custody on 5.9.76 at village Dholi, but the formal arrest was shown on 9th of September, i.e. after four days. 22. The statements of PW/13 Khadeen Hussain, SHO, is also very important. He has stated that he had taken these two accused in his custody on 5.9.76 at village Dholi, but the formal arrest was shown on 9th of September, i.e. after four days. He further admitted in cross-examination that the accused persons were brought at Police station on 7.9.76 and they were kept in the police station for two days and their arrest was shown on 9.9.76 23. In the light of the aforesaid evidence, I have to examine whether the evidence of this witness is sufficient to convict the accused-respondents Bhagirath and Deva Ram. As already stated above, no other witness of the raid party, who had chased the miscreants while they were running from the car, has identified these respondents, either in the court or in the parade. 24. From the above evidence, some glaring facts have come into light, namely, that identification parade was held after four months of the incident At the time when the car was seized and the accused had ran away it was 3.40 A.M. and there was no source of light at that time, as the light of the car as well as of the jeep were made off. From the statement of Devi Lal, it is further clear that he was busy in catching hold of the driver and his statement that he had the glimpse while the accused persons were running and they were seen froth face from one side and keeping in view their height he could identify them in the parade, appears to be highly improbable, specially when it was night and there was no source of light and this witness was busy in catching hold of the driver and in the normal course the back side of the miscreants should be there while they were running, after leaving the car. This witness also did not give any features either in the first information report or in his statement u/s 161 Cr. P.C. or at the time of holding the parade. This witness had also committed two mistakes and there was a joint identification parade which is normally not approved, as in such cases, the chances of taking out some of the accused by-chance, cannot be ruled out. Further, the accused persons were taken in cus-tody on 5th of September. P.C. or at the time of holding the parade. This witness had also committed two mistakes and there was a joint identification parade which is normally not approved, as in such cases, the chances of taking out some of the accused by-chance, cannot be ruled out. Further, the accused persons were taken in cus-tody on 5th of September. They were kept in custody of police for four days, without showing their arrest in papers. There is a mention in the statement of the accused recorded u/s 313 Cr.P.C. that they were shown to the witness at the police station. Further, the persons who had actually chased the miscreants, have not identified these two respondents. 25. Taking all the facts and circumstances and the law laid down by this Court, as well as the Honble Supreme Court, in the aforesaid judgments, I am unable to place any reliance on the testimony of this witness to connect these two accused with the crime. As I have already observed earlier, severe lapses on the part of Devilal and his associates, who were members of the Raiding party, in the matter of catching the accused miscreants are on the face of the record. It is unbelievable that so many constables, who were with weapons and were having also a jeep, allowed all the miscreants to run away from their clutches. Unless there is some deliberate inaction on their part, it is prima-facie not possible for the accused to have escaped in such a situation. However, I am helpless and cannot convict any of the accused, unless a guilt is proved against them from reliable and cogent evidence. 26. After reading of the evidence of PW/1 Devilal, against these two respondents I am unable to rely upon it. There is no other evidence to connect the respondents with the crime. The learned trial court rightly acquitted the respondents. 3. Accused respondent Nand Lal:- 27. He is a taxi driver. He has admitted his presence when the opium was seized from the car. From the statement of Kanhaiyalal it is clear that he was not the regular driver of the car but his services were obtained only on the day on making payment of Rs. 10/-. Admittedly, no articles were placed in the car at Ajmer. Subsequently what happened, there is no evidence on the record. The packets of contraband opium were in gunny bags. 10/-. Admittedly, no articles were placed in the car at Ajmer. Subsequently what happened, there is no evidence on the record. The packets of contraband opium were in gunny bags. This accused has given explanation as to how these gunny bags came to be placed in the dicky of the car. Taking his statement, while there is no other evidence contrary to it, it is difficult to believe that this accused could have known that in the gunny bags opium was being taken away or that he had knowledge or had conscious possession of the opium which was being taken away by the miscreants. The finding of the learned trial court in this connection, cannot be said to be perverse or arbitrary. The prosecution has led no evidence to show the circumstances on which any judicial court could infer about the knowledge of this accused that in the gunny bags contraband opium was being taken away by the accused persons, who had hired the car. 28. Thus, taking the entire material on record, it cannot be said that the findings of the trial court are perverse or arbitrary so as to call for interference in the order of acquittal. It is settled law that against an order of acquittal the appellate court should not interfere in the findings of acquittal of the trial court, even if two views are possible. Though it is unfortunate that the miscreants go unpunished in such a case, but it is due to the lapses on the part of the concerned persons at the time of the raid and also lapses at the time of investigation. In the absence of legal evidence, I am unable to convict any of the accused respondents. 29. Consequently, this appeal fails and the same is dismissed hereby.