Case: Ghuran Yadav Vs. State of Bihar

Uchit Paswan (P.W. 5), when produced as a witness, stated that he knew nothing about this case. He was confronted with Ex. 1/Gha but he said that he could not read what was written there. He categorically denied the suggestion by the prosecuting counsel that he had been won over by the accused and that he was concealing the true facts. Even this witness was not declared hostile and was not cross-examined by the prosecuting counsel. In cross-examination by the defence counsel he stated that he had put his signature on Ex. 1/Gha and had written whatever he was told by the Sub-Inspector of Excise to write. It is obvious that these two witnesses do not support P.W. 6. Siya Sharan Roy (P.W. 4), A.S.I. Excise (Special) is witness on whom the learned Sessions Judge relied for convicting the appellant. We may, therefore, now appropriately turn to his testimony. According to him on October 9, 1963 at about 8 a.m. he, along with other excise officers, a Magistrate and members of armed police searched the appellants house in village Mathar. In the course of the search six bags of Nepali Ganja were recovered from a room facing south which, according to him, was the residence of the appellant. Rama Shankar Singh, Sub-Inspector of Excise, prepared the search list in the presence of this witness whereon he also put his signatures (at Ex. 1/Ga). He admits that the accused was not present at the house at the time of the search. This is all that he has stated in his examination-in-chief and obviously he does not state as to who had identified the house which was searched as belonging to the appellant. In cross-examination again we do not find anything about the person who identified the house to be that of the appellant. P.W. 7, Jamuna Prasad Singh, Excise peon was also cross-examined about the ownership of the house searched and to quote his own words he learnt from Ram Krishan Yadav and Uchit Paswan about the location of the house of Churan". According to this witness, it is noteworthy, the appellants house was found locked before it searched. The matter was, however, not pursued by the counsel for the defence nor was any question put by the prosecuting counsel in re-examination to clarify this matter. In the circumstances the question whether the house which was searched was locked and if so how the raid party entered it for carrying out the search, must, therefore, remain unanswered on the existing record. The last witness whose testimony requires to be noticed is the Magistrate A. A. Akbari (P.W. 8). According to him the raid party left for village Mathar on the night of October 8, 1963, under orders of the District Magistrate and it reached that village at 6 or 6.30 a.m. on the following morning. The order of the District Magistrate, it may be pointed out, was not produced in Court and is not on the record. As the party approached village Mathar some villagers were seen running away with bags on their heads. They were chased and arrested and contraband Ganja was found in these bags. This witness also claims to be present at the time the appellants house was searched and according to him, the search was effected "after observing the formalities of search". He has not specifically stated about the formalities except that "independent witnesses were present at the time of the search" without naming them. On every vital point his memory has failed him. He even admits that he had not entered the room from which the bags were recovered. In regard to the identity of the house all that he could say was that he had learnt from the villagers, whose names he could not remember, that the room searched belonged to Churan Yadav (appellant). As to why he has stated that the room and not the house belonged to the appellant is not clear. He does not even know if there is a Gram Panchayat or a Chowkidar in the village. It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case. 5. On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellants house which was searched. 6. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusions. 7.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellants house which was searched6. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusionsn again we do not find anything about the person who identified the house to be that of the appellant. P.W. 7, Jamuna Prasad Singh, Excise peon was alsod about the ownership of the house searched and to quote his own words he learnt from Ram Krishan Yadav and Uchit Paswan about the location of the house of Churan". According to this witness, it is noteworthy, the appellants house was found locked before it searched. The matter was, however, not pursued by the counsel for the defence nor was any question put by the prosecuting counsel inn to clarify this matterIn the circumstances the question whether the house which was searched was locked and if so how the raid party entered it for carrying out the search, must, therefore, remain unanswered on the existing record. The last witness whose testimony requires to be noticed is the Magistrate A. A. Akbari (P.W. 8). According to him the raid party left for village Mathar on the night of October 8, 1963, under orders of the District Magistrate and it reached that village at 6 or 6.30 a.m. on the following morning. The order of the District Magistrate, it may be pointed out, was not produced in Court and is not on the record. As the party approached village Mathar some villagers were seen running away with bags on their heads. They were chased and arrested and contraband Ganja was found in these bags. This witness also claims to be present at the time the appellants house was searched and according to him, the search was effected "after observing the formalities of search". He has not specifically stated about the formalities except that "independent witnesses were present at the time of the search" without naming them. On every vital point his memory has failed him. He even admits that he had not entered the room from which the bags were recovered. In regard to the identity of the house all that he could say was that he had learnt from the villagers, whose names he could not remember, that the room searched belonged to Churan Yadav (appellant). As to why he has stated that the room and not the house belonged to the appellant is not clear. He does not even know if there is a Gram Panchayat or a Chowkidar in the village. It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case.