Bombay High Court
Lucian R.Rodrigues
Versus
State of Goa
Decided On:

Headnote:Section 3-Panchnama-It cannot be read as substantive evidence but if only evidence given on oath before Court to be a substantive evidence.

       It is well-settled that panchnama cannot be read as substantive evidence. It is only the evidence given on oath before the Court which can be treated as substantive evidence and panchnama can be used to corroborate the author or maker of the panchnama. If the I.O. or the panch witnesses had before the Court stated that the accused made such a statement, then the recital in the panchnama would have gone a long way to corroborate their evidence. But unfortunately for the prosecution, neither the panch witness nor the I.O. have told the Court on oath that the accused made any such statement. The accused stated that he will show something. Then the accused has lead the party and pointed out the place where the charas sticks were hidden. He does not make any statement that the accused told them that he has hidden drugs in the particular place. I.O. says that after getting down from the jeep he went near the accused and questioned him. The accused led him and the panchas to a particular place in the beach and pointed out a particular spot from which the sand was removed and the drugs were taken. He also does not say that the accused had made statement that he had hidden particular drugs in a particular place. Therefore, the recital in the panchnama cannot be used against the accused when it is not spoken to either by the panch or by the I.O.

       Section 8-Accused-Conduct of-It be admissible is Sufficient to connect with crime for recording conviction.

       Conduct of accused, is admissible under Section 8 of the Evidence Act. It is well-settled that when two equally plausible inferences could be drawn from proved or admitted facts, the one which is in favour of the accused should be accepted than the other one. Exempt pointing out at a particular place, there is no other incriminating evidence against the accused. Even if the evidence is taken as piece of conduct within the meaning Sections of the Evidence Act, it is not sufficient to connect the accused with a crime in question.

       Section 20(b)(ii)-Charas-Possession must be conscious one-Its recovery from open place not constitute conscious possession.

       Admittedly no charas sticks were recovered from the possession of the present appellant. 1be only thing is about the recovery of charas sticks at his instance. The alleged recovery is from an open place at a beach. The evidence on record is not sufficient to bring home the fact that the appellant was in conscious possession of the charas stick. The observation of the learned Sessions Judge that the accused has admitted that he had hidden the drugs is not borne out from the evidence on record. It was because of this erroneous opinion formed by the trial Judge that the accused has stated that he has hidden the drugs, the learned Judge fell into an error in coming to the conclusion that the accused was in conscious possession of the drugs. The alleged recovery is from art open place. It is not enclosed by any enclosure. The recovery from such a place cannot amount to conscious possession of the accused.

       For Citation : 1996(2) B Cr C 99 at p. 1000 (Bom)