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1995 Supreme(Bom) 325
IN THE HIGH COURT OF BOMBAY
G.R. Majithia Vishnu Sahai, JJ.
Rubyana alias Smita Sanjib Bali.... Appellant
Versus
The State of Maharashtra.... Respondent.
Criminal Appeal No. 147 of 1994, decided on 25-7-1995.
Advocates appeared :
Miss Revati Mohite-Dere with S.V. Kadam, Vijayrao Mohite and Hemant Chavan, for the appellant.
Y.V. Patil, A.P.P., for the respondent.
Headnote:Section 313-Accused-Eumlnatlon of-Prosecution failed to put circumstances in support of charges-Circumstances to be excluded from consideration.
Furthermore a perusal of the statement of the appellant under Section 313, Cr. P.C. reveals that the learned trial Judge did not put the circumstances relied upon by the prosecution to substantiate the charges, to the appellant. The circumstances relied upon by the prosecution have been discussed in the earlier part of the judgment. Since the circumstances were not put to the appellant in her statement under Section 313, Cr. P.C. these have to be excluded from consideration because the appellant did not have the chance to explain them.
In the first place, he stated that on the personal search of the appellant, a chadi was found which was bloodstained and according to the report of the Serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342 the prosecution cannot be permitted to rely on this statement in order to convict the appellant.
It is not necessary for the Court to multiply authorities on this point as this question now stands concluded by several decisions of this Court in this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration.
Section 313-Examlnatlon of accused-Circumstances relied upon by the prosecution not put to the accused in her statement-Should be excluded from consideration because she did not get a chance to explain them.
Section 91-Licence deed-No covenant in the document to reside in the licensed premises with wife. Only permission granted to live in flat for six months-Cannot be remotely suggested that the wife entered into possession of the flat.
Section 91-Contents of licence-Oral evidence for proving of not admissible.
2. The prosecution case runs as under :---
Pilu @ Bakhtiyar Ahmad Khan @ Sohal Qureshi (hereinafter referred to as "Sohal") was accused in C.R. No. 349/92 under section 3/25 of the Arms Act at the Yerwada Police Station, Pune. He was present at the police station on October 24,1992 at about 9.15 p.m. On enquiry from him, he gave information that since March 1992, he was residing at Graphicon Court, Kalyaninagar, Yerwada, Pune, with his friend Smita @ Rubiyana Sanjib Bali, resident of Juhu-Tara Road, North Bombay Society; that he was residing in a rental flat and doing the business of selling narcotic drugs, like brown sugar, cocaine, hashish, etc.; and that in the above mentioned flat at Kalyaninagar, there is a large quantity of drugs. This information was given in the presence of Shinde, ACP of Lashkar Division.
A.S. Shaikh, PI, Yerwada Police Station, Pune, called two panchas, namely (1) Arun Genaji Inkar and (2) Chandrakant Rama Pujari, in the police station. The substance of the information was disclosed to them and they were asked whether they were ready to act as panchas. They agreed. The panchas took searches of PI Shaikh, ACP Shinde and other police staff and PI Shaikh took search of the panchas. No incriminating article was found in the searches. Shinde, Shaikh, other staff, panchas and the appellant were led by Sohal to Graphicon Court building. They were asked to halt the vehicle in front of the flat and all of them alighted from the respective vehicles. Sohal opened the gate of the compound of the building and led all of them in front of the flat. Sohal opened the latch of the door with the key in his possession. Shinde and Shaikh disclosed to the appellant and Sohal that they intend to take search of the flat and whether they intend to offer search before a Magistrate or any Gazetted Officer and that they are also Gazetted Officers. They declined. Shaikh offered searches and Sohal took the same but no incriminating article was found in the search. Shaikh, Shinde, the other police staff and panchas entered the flat. Sohal took them in the hall of the flat and thereafter took them to right side bed room. Sohal took out one leather bag (Article 7) from the tin cupboard. The bag was searched and one .38 revolver and one 9 mm pistol were recovered from fold Nos. 1 and 2; 2 country made revolvers were found in the third fold; and one .445 revolver was found in the fourth fold. The revolvers and the pistol were labelled as Articles 1 to 5 in the Court. Two hundred and eighty one live cartridges of different bores were also found in the said bag. The said cartridges were found in a flap which had a chain. These were labelled as Article No. 6 in the Court. All the revolvers, pistol and the cartridges were wrapped separately. Paper labels bearing the signatures of PI Shaikh and the panchas as also the lac seals were affixed on them.
It is further the case of the prosecution that Sohal took them in the western side bed room and the appellant was present at the said time. A
