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1996 DIGILAW 757 (RAJ)

State of Rajasthan v. Mishrimal

1996-07-19

MOHD.YAMIN

body1996
Honble YAMIN, J. –This is a State appeal against acquittal of Mishrimal by the learned Sessions Judge, Jalore by his judgment dated 31.1.78, which he passed in Cr. Appeal No. 118/77.Respondent-accused Mishrimal was tried by Chief Judicial Magistrate, Jalore under Sec. 9 of the Indian Opium Act and was convicted on 28. 2.77. He was sentenced to 2 years rigorous imprisonment and a fine of Rs. 15,000/- in default to further undergo 6 months rigorous imprisonment. The accused-respondent preferred an appeal before the learned Sessions Judge, Jalore and was acquitted. Aggrieved wherefrom, the State has preferred this appeal against acquittal of the accused-respondent. (2) Briefly stated, on 14.12.73, S.P., Jalore Arun Dugar (PW.1) was holding his Camp at Sanchore. He received secret information that opium could be found in the house of Mishrimal as he used to sell opium. Arun Dugar went to Police Station, Sanchore and then accompanied by Moti Lal, SHO went to the Nohara of Mishrimal, where Mishrimal was present. PW.1 Arun Dugar inquired from the respondent and then arrested him vide Ex.P.1 Then respondent gave an information under Sec. 27 of the Evidence Act, which is Ex.P.2 and thereafter respondent took the police officers to the place disclosed in the information memo Ex. P.2 and opium was recovered.Total weight of the opium recovered was 69.800 kg. Samples were taken and sealed. They were sent for analysis and vide Ex. P.8 were found to be of opium. (3) I have heard both the parties. (4) Learned Public Prosecutor on behalf of the appellant has contended that Mishrimal respondent had given information under Sec. 27 of the Indian Evidence Act on the basis of which recovery of opium was made at the instance of the respondent and all the witnesses say that it was the respondent, who got the opium recovered. There were two motbirs, who had supported the recovery. Therefore, the learned Sessions Judge did not appreciate the evidence properly and committed an error in acquitting the respondent. (5) On the other hand learned counsel for the the accused -respondent has contended that this Court can interfere in the finding only if it is found to be perverse. He has contended that the evidence on record does not prove that the recovery was made from the place, which is alleged to have been mentioned in Ex. 2 His contention is that Ex.P.2 has not been proved. He has contended that the evidence on record does not prove that the recovery was made from the place, which is alleged to have been mentioned in Ex. 2 His contention is that Ex.P.2 has not been proved. He has also contended that Arun Dugar (PW.1) does not say as to whom the samples were given. He has also contended that there is no link evidence to prove that the samples were taken to the Laboratory in sealed condition and consequently as the link evidence is missing it can not be held that the samples were of opium. His main plank of argument is that the learned Sessions Judge has rightly held that the prosecution was not able to prove that the recovery was made at the instance of the respondent from the place,which he had pointed out in Ex. P.2. (6) According to PW 1 Arun Dugar, he had received information and then he went to the Nohara of the respondent. He arrested the respondent and thereafter Ex. P.2 was prepared. He has stated in the examination-in-chief that the accused-respondent had admitted before him that the respondent used to do the business of opium. However, the respondent was arrested vide Ex. P.1 and thereafter Ex.P.2 information was recorded, wherein the respondent is said to have indicated to his residential house adjacent to his Nohra in Mochiwada and according to this information the opium was lying in `Bukhari under a stair case in Kitchen. Now the evidence of PW.1 Arun Dugar is to be seen. He has stated in the examination in chief that the respondent got the opium recovered from the place indicated by him, but when he was cross examined he stated that the house was adjacent to the Nohra, but he did not inquire about the ownership or possession of the place wherefrom the opium is said to have recovered. He did admit that some labourers were working in the house and he did not inquire from them as to whom the house belonged. According to PW.2 Malam Singh the house was in back of the Nohra and when the police reached there the door of the house was closed. He admitted in the cross examination that some labourers were working in the house. Then his version that the house was closed, can not be believed. According to PW.2 Malam Singh the house was in back of the Nohra and when the police reached there the door of the house was closed. He admitted in the cross examination that some labourers were working in the house. Then his version that the house was closed, can not be believed. PW.3 Pema Ram is the motbir, who has stated in the examinatio in-cheif that he was standing near the shop of Champalal,where the police official came and told him that some recovery was already made and then he was taken to a house, where some labourers, the S.P. and some other police officers were present and then the opium was weighed.He has admitted in the cross examination that when he reached at the spot some labourers and masons were working in the house and opium was lying there. Thus, he is person before him recovery was not made at the instance of the accused-respondent. Another motbir PW. 4 Nava Ram was taken to the Nohra of the respondent, which was searched by the police officers, but no document was prepared. He has contradicted PW 1 Arun Dugar by saying that the respondent was not arrested at the Nohra. According to this witness the police officers took him to another Nohra and then respondent was called there. According to him opium was lying in the kitchen of this second Nohra.This witness was declared hostile by the prosecution and he was cross examined at length and even then he maintained that the Nohra from where recovery was made was situated on a public way. He has stated that the SHO entered into the Nohra and removed the labourers. To whom does this second Nohra belonged or in whose possession it was? The case of the defence is that this house from where the recovery is said to have been made belonged to and was in possession of Sardarmal and was not in possession and was not owned by the accused-respondent. According to PW.4 Moti Lal, respondent Mishrimal had given him information that the opium was lying in his residential house. The case of the defence is that this house from where the recovery is said to have been made belonged to and was in possession of Sardarmal and was not in possession and was not owned by the accused-respondent. According to PW.4 Moti Lal, respondent Mishrimal had given him information that the opium was lying in his residential house. So the important question was whether the house from where recovery is said to have been made belonged to or was in possession of Mishrimal respondent?Learned Sessions judge has come to the conclusion that there is no clinching evidence to prove that the place was in possession of or belonged to the accused-respondent instead there was sufficient evidence that it belonged to Sardarmal. The evidence of PW.5 Sardar Singh is that there was a house situated near the No- hra of Mishrimal, where the police officials went and from where the recovery was made. (7) The accused-respondent had stated in his statement under Sec. 313 Cr.P.C. that the house did not belong to him, but it was of Sardarmal with whom he had no relation. The evidence of the prosecution does not prove that the place from where the recovery is alleged to have been made belonged to or was in possession of the respondent instead the evidence on record shows that it was an open house when the police party reached there some repair work was going on and some masons and labourers were working. The defence evidence led by the respondent proves that the house belonged to and was in possession of Sardarmal. Sardarmal has himself come in witness box and has stated as DW. 5 that the house belonged to him and a Nohra of Mishrimal was situated on the eastern side of his house. Sardarmal was a businessman at village Dabal, which is situated at about 6-7 miles from Sanchore. According to Sardarmal the residential house of accused- respondent was about 500 paces away from his Nohra. He and Mishrimal had some litigation and Mishrimal never lived in his house. It was he who got the house repaired. He came to his house after 1 or 2 days of the incident and came to know that some body had planted opium in his house. He and Mishrimal had some litigation and Mishrimal never lived in his house. It was he who got the house repaired. He came to his house after 1 or 2 days of the incident and came to know that some body had planted opium in his house. According to him when the repair work was being done it was Chhoga, who was having keys of his house and the house was in possession of Chhoga. Chhoga is a labourer, who was looking after his repair work. In view of all this evidence it is not proved that the house belonged to or was in possession of respondent Mishrimal. Therefore, the place indicated in Ex. P.2 is not the residential house of accused-respondent and it can not be held that accused-respondent was having any knowledge of opium being kept in the house of Sardarmal.There fore, it cannot be concluded that the recovery could have been made at the instance of the accused respondent from the place. The learned Sessions Judge has rightly held that the prosecution was not able to prove its case beyond doubt and the view taken by the learned Sessions Judge can not be held to be perverse. (8) The possibility of planting of opium in the house of Sardarmal by some body and then the recovery at the instance of the accused- respondent in the circumstances of this case can not be ruled out, because PW. 1 Arum Dugar, S.P. had received an information that the accused-respondent was dealing with opium and he went to the extent of getting an admission from the respondent to that effect, which was not admissible in evidence under Sec. 25 of the Evidence Act. (9) The argument of the learned counsel for the respondent that there is no link evidence will not be material in this matter, because the prosecution has not been able to prove that the recovery of opium was made from the residential house of Mishrimal at his instance. (10) In view of above, the appeal has no force and it is hereby dismissed.