Madhya Pradesh High Court
Tamma @ Ranjeet Singh vs The State Of Madhya Pradesh on 16 December, 2024
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2024:MPHC-IND:36078
1 MCRC-42811-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 16th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 42811 of 2024
TAMMA @ RANJEET SINGH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms. Nidhi Jain - Advocate for petitioner.
Ms. Harshlata Soni - Panel Lawyer for respondent- State.
ORDER
Heard learned Counsel for the parties with the aid of case diary. The petitioner has filed the present petition u/S 482 of CrPC seeking quashment of FIR and Final Report arising out of Crime No.149 of 2021 registered at Police Station Barawada, District Ratlam for commission of offence punishable under Section 279, 337 of IPC and Section 34(2) of MP Excise Act.
In short, prosecution case is that on 31-05-2021, co-accused Gopal Singh along- with Ritesh (since deceased) were found carrying 115 bulk liters of illicit country-made liquor in a Travera Car being registration No. RJ-34-UA-0837 which met an accident in which, Ritesh died on spot. During investigation, it was found that aforesaid vehicle was owned by co-accused Badrilal and petitioner supplied the alleged country-made liquor found in offending vehicle. On such allegations, the impugned FIR at Crime No.149 of 2021 was registered at PS Barawada, District Ratlam for offence punishable under Sections 279, 337 of IPC and Section 34(2) of MP Excise Act. After completion of investigation and other formalities, police filed final report on 30-03-2023.
It is contended on behalf of petitioner that petitioner was neither present on the spot nor any country-made liquor was recovered from his possession. He is not the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 16-12-2024 18:19:56 NEUTRAL CITATION NO. 2024:MPHC-IND:36078 2 MCRC-42811-2024 registered owner of the vehicle in which, illegal country-made liquor was being transported. On the basis of memorandum of co-accused persons recorded under Section 27 of the Indian Evidence Act in which, they deposed that the alleged liquor was procured by them from the petitioner. On the basis of such disclosure statements of co-accused, the petitioner has been made an accused in the alleged crime. There is no legally admissible evidence within the meaning of Section 27 of the Evidence Act amounting to discovery of fact against the petitioner. It is further contended that the petitioner has already been given benefit of bail by this Court vide order dated 10th of February, 2022 passed in MCRC No.6495 of 2022. It is also contended that memorandum statement of co-accused is not admissible, since no recovery pursuant to the same has been made, therefore, the FIR and charge sheet in Crime No. 149 of 2021 registered at PS Barawada, Dist.- Ratlam against the petitioner deserves to be quashed. Learned counsel has placed reliance on the order passed in the case of Ram Kishan Vs. The State of Madhya Pradesh [MCRC no. 18865/ 2024] as well as the order dated 4th of September, 2024 passed by coordinate Bench of this Court in MCRC No. 31958 of 2024 [ Sanjay vs. State of MP].
On the other hand, learned counsel for the respondent/ State has vehemently opposed the prayer of the petitioner and prayed for dismissal of this petition. However, it has been fairly submitted that the petitioner has been implicated in the case only on the basis of memorandum statement of the co-accused and no other material is available against him in the case.
Heard learned counsel for both the parties and perused the case diary. In the case of Ram Kishan (Supra), this court has held as under:-
6. In the case of Ramniwas (Supra), the Coordinate Bench of this Court has held as under:-
"7. Recently, this Court in the case of Dilip Kumar Vs. State of M.P., M.Cr.C. No.2748/2022 decided on 12.04.2022 has held in paragraph No.15 to 18 as under:-
"15. A close scrutiny of the charge sheet reveals that apart from the aforesaid memo and the bank statement of Dangi brothers, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 16-12-2024 18:19:56 NEUTRAL CITATION NO. 2024:MPHC-IND:36078
3 MCRC-42811-2024 there is no other material available on record to suggest that the present petitioner Deelep had also facilitated the sale of fake fertilizer which was prepared by Suresh Dangi and other accused persons. There is also no evidence available on record to suggest that the present petitioner Deelep obtained from Suresh Dangi any amount over and above the requisite amount of the sale of gypsum granules to him, which can be said to be connected with the sale of fake fertilizer.
16. Regarding admissibility of the confessional statement given by a coaccused and of the petitioner, a reference may be had to the decision rendered by the Supreme Court, authored by Vivian Bose, J. in the case of Kashmira Singh v. State of Madhya Pradesh (supra), the relevant paras 8, 9, 10 and 11 of the same read, as under:
"8. Gurubachan‟s confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. King. "It does not indeed come within the definition of "evidence‟ contained in Section 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."
Their Lordships also point out that it is "obviously evidence of a very weak type ... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities." They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence". In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is corroborated?
9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chucker-butty where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused" or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan "the provision goes no 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 Section 30 may be thrown into the scale as an additional reason for believing that evidence".
10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 16-12-2024 18:19:56 NEUTRAL CITATION NO. 2024:MPHC-IND:36078 4 MCRC-42811-2024 marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.
11. Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us had occasion to examine this recently in Rameshwar v. State of Rajasthan. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in Bhuboni Sahu v. King:
"The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable occasions, and it is very difficult for the court to guard against the danger ... The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused."
(emphasis supplied)
17. Testing the facts of the case at hand on the anvil of the aforesaid dictum of the Supreme Court, this Court finds that the only material evidence against the present petitioner is the memo prepared under Section 27 of the Evidence Act by the co-accused and certain bank transactions of the co-accused in which he has sent certain amount to the present petitioner through NEFT. In such facts and circumstances of the case, if the petitioner who is in the business of manufacturing Gypsum Granules and Allied products, and if in the legitimate business transaction the aforesaid granules were purchased by the other accused persons and in turn they use it in the manufacture of fake fertilizer, such act, in the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 16-12-2024 18:19:56 NEUTRAL CITATION NO. 2024:MPHC-IND:36078 5 MCRC-42811-2024 considered opinion of this Court, would not amount to an offence for the present petitioner and he cannot be held guilty for the aforesaid act of the co-accused persons in the absence of any other material available on record to connect the petitioner with the offence, as has already been observed above.
18. Resultantly, the petition stands allowed and the charge sheet, so far as it relates to the present petitioner is concerned, as also the further proceedings initiated in the trial Court against him stands quashed."
7. In the case of Shafi Kha (Supra), the Coordinate Bench of this Court has held as under:-
"6. Heard. Having considered the rival submissions and on perusal of the case-diary, it is found that the material available against the present petitioner is in the form of disclosure memo prepared under Section 27 of the Evidence Act only, and there is no other material available on record which may suggest that the petitioner is also involved in the present case. It is a trite law that a mere memo recorded under Section 27 of the Evidence Act is not a piece of evidence and it is admissible only to the extent of such recovery or discovery made through the said memo and nothing more."
8. In the case of Kamal Singh Sondhiya (Supra), the Coordinate Bench of this Court has held as under:-
"7. The issue as regards evidentiary value of memo of Section 27 of India Evidence Act has already been considered in detail and decided by this Court by order dated 18/02/2020 passed in Cr.R. No.511/2019 (Jaswant Singh vs. State of M.P.) and other connected revisions, in which it has been held as under :-
"24. Thus, it is explicit that the information given or disclosure made by the accused, which does not lead to any recovery is not admissible in evidence against other co-accused persons and on the basis of such inadmissible evidence the prosecution is nothing but abuse of process of law, which should not be and cannot be allowed to perpetuate."
Considering the rival contentions of the learned counsel for the parties, it is apparent that implication of petitioner is made merely on the basis of memorandum statement of co-accused u/s 27 of the Evidence Act. There is no material evidence available on record which shows that the petitioner has been the part of offence. Further, Section 27 of the Evidence Act is crystal clear on this note that the evidence under the aforementioned provision is admissible only to the extent of recovery or discovery made through the said memorandum and nothing more, hence, implication merely on the basis of memorandum statement u/s 27 of the Evidence Act, without any Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 16-12-2024 18:19:56 NEUTRAL CITATION NO. 2024:MPHC-IND:36078 6 MCRC-42811-2024 evidence, is not lawful.
In the available facts of the case and in the interest of justice, applying the principle of the evidence as provided under Section 27 of the Evidence Act, there is no admissible evidence against the petitioner. Therefore, this petition deserves to be and is hereby allowed. The FIR and the final report arising out of Crime No.149 of 2021 registered at Police Station Barawada, District Ratlam for commission of offence punishable under Section 279, 337 of IPC and Section 34(2) of MP Excise Act is hereby quashed. The bail bonds of the petitioner stand discharged.
Let a copy of this order be sent to concerned Police Station as well as the Court concerned for information and compliance.
Cc as per rules.
(HIRDESH) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 16-12-2024 18:19:56