Ramniwas vs State Of Madhya Pradesh

This petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code'), has been preferred for quashment of FIR bearing Crime No.318/2016 registered at police Station Bhavgarh, District Mandsaur (M.P.) and consequential proceedings of Session Trial No.18/2016 pending in the Court of Speical Judge, Mandsaur, District Mandsaur.

The facts of the case, briefly stated, are that on 27/07/2016, police received a source information that a motor cycle bearing Registration No. MP-14-MR 9053 which was ride by one Gopal and Sheru and Sunderlal was also accomplained with him, were carrying poppy straw. On the basis of this information, the Sub-Inspector after complying with the necessary formalities, carried out Bhavgarh Daloda Road. The said motorcycle was intercepted and conducted search of the above persons and motorcycle. During search, total quantity of 56 kg, poppy straw was recovered from the motorcycle. After completing necessary formalities Police arrested Gopal, Sheru and Sunderlal and recorded their statement under Section 27 of the Indian Evidence Act, in which they informed the Police that they procured the alleged contraband from the present applicant on payment of Rs. 56,000. On that basis, the applicant has also been implicated in the present crime.

It is submitted by learned counsel for the applicant that neither the contraband article has been recovered from the possession of the applicant, nor he is the owner of the vehicle in which the alleged contraband was being transported. It is further submitted that the applicant was not present on the spot . The complicity of the applicant is alleged only on the basis of the disclosure statement under Section 27 of the Evidence Act, said to have been made by co-accused persons Gopal, Sheru and Sunderlal in which they deposed that the contraband was procured from the present applicant. However, the said statement is not legally admissible evidence within the meaning of Section 25 of the Indian Evidence Act, 1872 (for short 'The Act'). Except this there is no independent or direct evidence available on record against the applicant, in order to show his involvement in the alleged offence. He further submits that although Rs. 56,000/- has been recovered from the house of the present applicant, however, he has filed copy of his bank Account Nos. 6936000100019236, Punjab National Bank and A/c No.02812282001993, Oriental bank of Commerce. From perusal of the bank pass books of the applicant, it reveals that the said amount has been withdrawn by the applicant from his bank account, therefore, it cannot be said that the amount has been received by the applicant from the co-accused person. Hence, he prayed for petition may be allowed.

Per contra, the learned Public Prosecutor supported the impugned order and prayed for rejection of this petition.

I have heard learned counsel for the parties and perused the record.

From the perusal of the material available on record, it appears that the applicant was not named in the F.I.R and no contraband has been recovered from his possession. Neither he was the owner of the vehicle nor he was present in the vehicle at the time of the alleged incident. He was not apprehended from the spot. He was implicated in the present matter only on the basis of disclosure statement of co-accused persons Gopal, Sheru and Sunderlal in which they deposed that the alleged contraband was procured from the present applicant for Rs. 56,000/-. The memorandum of co-accused is nothing except a confessional statement given before the police officials, which is not admissible under Section 25 of the Evidence Act. Although police has recovered Rs. 56,000/- from the house of the applicant, however, he has filed pass books of his bank account, from which the aforesaid amount has been withdrawn by him, therefore, it cannot be said that Rs. 56,000/- is the amount which he has received as consideration from the co-accused persons namely Gopal, Sheru and Sunderlal by selling contraband article.

Section 27 of 'The Act', in terms, provides that only that information which distinctly relates to the discovery of fact is admissible in evidence. In the landmark decision of Privy Council in the case of Pulukuri Kottaya vs. Emperor, AIR 1947 P.C. 67, it has been held that unless there is discovery of fact, statement made u/S. 27 of 'The Act' has no evidentiary value. It has further been held that in a case, it can seldom happen that information leading to discovery of a fact can be made, the foundation of the prosecution case because it is one link in the chain of proof and the other links must be forged in the manner allowed by law.

In the case of Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, (1964) 6 SCR 623 it was observed by the Apex court :-

"As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbuttv, (1911) I.L.R. 38 Cal. 559 at p. 588. a confession can only be used to "lend assurance to other evidence against a co-accused". In In re. Peryaswami Noopan,(2) Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the co-accused sufficient, if,. believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King, (1913) I.L.R. 54 Mad. 75 at p. 77. the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of s. 30, the fact remains that it is not evidence as defined by s. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh 1952 S.C.R. 526 where the decision of the Privy Council in Bhuboni Sahu's(2) case has been cited with approval."

Considering the fact that in the present case the only material to implicate the present applicant is the disclosure made by co-accused persons namelyGopal, Sheru and Sunderlal, under Section 27 of the Evidence Act, which is not a legal evidence, therefore this petition filed under section 482 of 'the Code' is allowed and FIR bearing Crime No.318/2016 registered at police Station Bhavgarh, District Mandsaur (M.P.) and consequential proceedings of Session Trial No.18/2016 pending in the Court of Special Judge, Mandsaur, District Mandsaur with respect to applicant Ramniwas is hereby quashed.

Certified copy as per Rules.