1988 Supreme(Bom) 93

IN THE HIGH COURT OF BOMBAY
V.S. Kotwal V.P. Tipnis, JJ.
State of Maharashtra.... Appellant.
Versus
Genu Yeshwant Divate P.S.I., Ahmednagar Police .... Respondents.
Criminal Appeal No. 708 of 1981, decided on 10-3-1988.
Advocates appeared :
M.D. Gangakhedkar, P.P., for appellant-State.
J.D. Ved, for respondent-accused.

Headnote:Sections 3 and 9-Need for corroboration-Evidence of investigating personals-Where corroborations available to prosecution but not availed, prosecution, case can be registered by Court-Further copy of purchase should be supplied to accused.

       There are however, a couple of more formidable features which create a serious infirmity in the prosecution arid which are high lighted by the learned trial Magistrate and on which Court there is no proper explanation even on this forum on behalf of the prosecution. This is a typical case where it could not be said by the prosecution that there could not be and there was not in fact any corroboration to the evidence of the Customs Officers and if it was a case falling in that extreme category where no corroboration either direct or indirect could be imagined then perhaps the situation would have been different though in that event also it would have been necessary to closely scrutinize the evidence of the Customs Officers. The situation in the instant case is entirely different and it is rejected boldly in two features and which are admitted by the prosecution. The first is that no statement of these Customs Officers has been recorded by the Custom Department or by any one. There is absolutely no satisfactory explanation about this lapse because it cannot be over-looked that these are the most material witnesses who almost claim to be eye witnesses to the incident. The second feature is that both of them assert that each had made a separate report to the superiors in the Department and according to the prosecution also those reports are in possession of the Department. Inspite of this we find that those reports are not produced before the Court.

       The learned trial Magistrate has quite rightly commented on this deficiency which was the creation of the Department itself. It cannot be over looked that in such matters where the Customs Officers claim to be eye witness and if there is possibility of having a check and counter check to their cases then that could be done by the Department and should unfolded before the Court. Consequently, therefore, in the nature to things and under the thrust of the situation it was extremely essential and not only desirable to record the statements of these two officers because the complaint is filed by someone else who had no person knowledge. In the instant case however there is yet another counter check which was available to, the prosecution in the shape of the reports made by these two officers and yet we find that those reports are not produced before the Court and no plausible explanation is tendered in that behalf also. In a given case perhaps the absence of the statements ,could have been replaced and thereby condoned by relying on the reports immediately made which could be easily substituted for the first time, even then such an opportunity has been allowed to be snatched by the prosecution themselves. Obviously therefore, the defence are clearly handicapped as there is no check and counter check to examine and test the credibility of the evidence given by these two witnesses which purpose would have been served if their statements were recorded or at least their reports were placed before the Court.

       All this apart, the situation makes it manifestly clear that here is a case were in trinsic corroboration is in existence if the prosecution Case is accepted in the shape of the reports and that corroboration has not been placed before the Court and, negatively speaking the existence of corroboration in the statements which could have been available has been lost to the prosecution by their own conduct. Shri Ved the learned Counsel, therefore, submits that it was not enough merely offering adverse comments but it would be proper to draw adverse inference against the prosecution in that behalf to the effect that if the reports would have been placed their contents have gone against the prosecution. Apart from the question of drawing the adverse inference.

       The basic fact remains intact that there was corroboration available to tile prosecution and there was posibility of getting further corroboration and yet that has not been done. Consequently, therefore, this is a typical case where the entire fact depends on the testimony of the two Customs Officers only and if the mode of testing the credibility of their evidence is snatched to the defence and the Court, then it would be, to put it in the minimum, extremely hazardous to accept their sole testimony.

       This position remains intact even if it is argued that the report whole sale cannot be used as corroboration but essentially can be used for contradiction. This is more so, because the more fundamental objection relates to the fact that here are the main witnesses in respect of whom there is no previous statement available so as to test the truthfulness of their version and if need be to contradict and conform them wit" any such previous statement because that is a fundamental principle making the necessity of previous statements of witnesses or otherwise the entire field is open for the witnesses to mould their case in whatever manner they like at the trial since they are assured that there is no scope for contradiction. Viewed from this angle, therefore, also strongly indicates that even de hors of the question about their reports, the bare minimum of non recording of their previous statements is a serious lapse and deficiency under the circumstances especially when that is the only evidence available to connect the accused,

       One would, therefore, expect that the copy of the said panchanama would be given to the accused immediately on the spot. The obligation to do so is not denied by the prosecution. If a copy was supplied then there would have been a contemporaneous record regarding the acknowledgement of 1ge copy by the accused. Realising this situation the witnesses came out with the story that they did offer the copy of the panchanama to the accused but he declined to accept the same. This is a very specious explanation which does not fit in with the circumstances as rightly commented by the learned trial Magistrate for obvious reasons that if such things really occurred then there could have been a contemporaneous record and one such record of giving endorsement in the panchanama itself made at the Sport that the accused declined to accept the copy though tendered to him. Admittedly there is neither any receipt nor any endorsement nor any other document to bolster the case that the copy of panchanama was really offered to the accused but he declined. This, therefore, entails into drawing an inference against the prosecution on the harmonious platform that the copy was not offered to the accused at that time.