GOPI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) APPELLANTS Gopi and Kamod Singh have been convicted by the learned Additional Sessions Judge, Dholpur for an offence under sec. 395 I. P. C. and each one of them is sentenced to seven years rigorous imprisonment. Both of them have filed this appeal against the said order of conviction dated 15 of March, 1973.

(2.) A dacoity was committed on the night intervening 16th and 17th February, 1969 at the house of Sitaram, Brindaban and Lajjaram in village Beech-ka-pura, Najra Jaintpur. It is said that the same gang of dacoits looted the house of Ramratan and his sons and Raghubar in village Ghhatri-ka-pura. During investigation, three persons, namely, Gopi, Kamodsingh and Rameshwar were arrested but no stolen property was recovered from them. All of them were challenged in the court of Munsif-Magistrate, Dholpur who committed all the three to stand their trial before the court of Session, Dholpur. The only evidence which was produced by the prosecution against these accused persons was that they were identified by the villagers to be the members of the gang that committed the said dacoity. Rameshwar was acquitted by the learned Additional Sessions Judge, but he found that the prosecution has amply established the presence of Gopi and Kamodsingh at the spot where the dacoity was committed by the gang of which the aforesaid appellants were the members. It is in this manner that the appeal has come before this Court.

(3.) IN this connection reference may also be made to the observations of the Privy Council in Nazir Ahmad vs. King Emperor (3) where it has been laid down by their Lordships of the Judicial Committee - "when a Magistrate records any confession he does so as a matter of duty and discretion and not of obligation the Magistrate acting under S. 164 is not acting as a court. " IN Purshottam Ishvar Amin vs. Emperor (4), the learned Judges held that the statement recorded by a Magistrate in the course of police investigation under sec. 164 is not evidence in a stage of a judicial proceeding.