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Ahmed Noor Karimbhai Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 740 of 1961
Judge
Reported inAIR1963Guj221; 1963CriLJ261; (1963)0GLR426
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 244 and 342
AppellantAhmed Noor Karimbhai
RespondentThe State
Appellant Advocate M.R. Barot, Adv.
Respondent Advocate A.N. Surti, Asst. Govt. Pleader
DispositionAppeal dismissed
Excerpt:
- .....it is contended that the son of the principal of the gujarat college is not a friend of the panch witness surendra and this fact is proved by the evidence of dilipkumar, a witness for the defence, who is a son of the principal of the gujarat college. such evidence is not admissible under section 153 of the evidence act, and, in any case, it is not clear whether dilipkumar was a person referred to by surendra and whether the principal has only one son.6. the last contention is that when the second panch vinod, who was examined as a defence witness, did not support the prosecution and that when one panch supports the prosecution and the second panch does not support the prosecution, the evidence of both the panchas should be rejected leaving only the evidence of the police officer......
Judgment:

V.B. Raju, J.

1. The appellant was convicted under Section 66(b) of the Bombay Prohibition Act, The conviction rested on the evidence of the police officer and the Ranch witness, who supported the prosecution case. The defence examined-the second panch who deposed that he did not witness the finding of the bottles of liquor in possession of the appellant. But, according to him, the bottles were at the police station and a panchnama was made at the police station. The learned Magistrate believed the prosecution case that 16 bottles of liquor were found in possession of the appellant and that only one bottle which was sent to the Chemical Analyser was certified by him to contain liquor.

2. The learned counsel for the appellant challenges the conviction on five grounds. The first is that Section 342, Cr. P. C. was not complied with, as only one question was put to the appellant regarding the possession of the bottles, Under Section 342 (1), Cr. P. C. this provision has been enacted only to enable the accused person to explain any circumstances appearing in the evidence against him. It is the circumstances appearing in the evidence against him and which require to be explained that have to be put to the accused person in his examination under Section 342, Cr. P. C. It is not necessary for the Magistrate to summarise the evidence of each witness and put the summary to the accused person in his examination under Section 342, Cr. P. C. In the instant case the only circumstance relied on by the prosecution is the finding of 16 bottles in the possession of the appellant end this circumstance was put to the accused. It is therefore sufficient compliance by the Magistrate with the provisions of Section 342, Cr. P. C.

3. The next contention is that 16 bottles were alleged to have been found with the accused and only one bottle was sent to the Chemical Analyser. Even if 16 bottles were found by the police, it was not necessary for them to send all the bottles to the Chemical Analyser. But if only one bottle is sent, the finding of the learned Magistrate that liquor was found would have reference to only one bottle and not to the other 15 bottles. In such a case, the finding would have reference to only one bottle of liquor found with the accused and not to other 15 bottles.

4. The next contention is that under Section 244, Cr. P. C., the Magistrate should have examined the complainant first before taking the evidence of other witnesses. It is contended that the Panch was examined first and the police officer who is a complainant was examined later. Section 244, Cr. P.C. reads as follows:

'(1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. .....'

The complainant has to be examined first only if there is a complaint in the case. Section 190, Cr. P. C. provides that cognisance of an offence can be taken by a Magistrate upon receiving a complaint or upon a report in writing made by any police officer or upon information received from any person other than a police officer. It is, therefore, clear that a police report is made under Section 170, Cri. Pro. Code after the investigation of a cognisable offence. Cognisance of offence is taken on a police report and not upon a complaint. In such a case there is no complaint and there is no complainant. That is why the legislature has used the words 'if any' in Section 244, Cr. P. Code.

5. The next contention is that the first Panch Surendra should have been disbelieved, because according to him he was going to see the son of the Principal of the Gujarat College, when he was taken as Panch by the police. It is contended that the son of the Principal of the Gujarat College is not a friend of the Panch witness Surendra and this fact is proved by the evidence of Dilipkumar, a witness for the defence, who is a son of the Principal of the Gujarat College. Such evidence Is not admissible under Section 153 of the Evidence Act, and, in any case, it is not clear whether Dilipkumar was a person referred to by Surendra and whether the Principal has only one son.

6. The last contention is that when the second Panch Vinod, who was examined as a defence witness, did not support the prosecution and that when one Panch supports the prosecution and the second Panch does not support the prosecution, the evidence of both the Panchas should be rejected leaving only the evidence of the police officer. In such a case it is not necessary that the evidence of both the Panchas should be rejected. The learned Magistrate was right in believing the evidence of the first Panch witness when nothing was brought in the cross-examination to cast any doubt against his testimony.

I, therefore, confirm the conviction of the appellant under Section 66(b) of the Bombay Prohibition Act and also confirm the sentence of three months' rigorous imprisonment and a fine of Rs. 200/- in default rigorous imprisonment for one month passed on the appellant. The appeal is dismissed.


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