Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1762 (RAJ)

Kundan Singh v. State of Rajasthan

2012-08-14

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties.The instant misc. petition has been preferred by the petitioner challenging the order dated 26.11.2011 passed by learned Sessions Judge, Dungarpur in Criminal Revision No.39/2011 whereby he has affirmed the order dated 11.10.2011 passed by the learned Judicial Magistrate, Simalwara in Criminal Regular Case No.65/2009 framing charges against the petitioner for the offences under Sections 19/54 and 19/54 (gha) of the Rajasthan Excise Act. 2. Succinctly stated the facts of the case are that acting on a prior information, the Excise Inspector, Circle Dungarpur searched the premises of one Uda Damor on 14.12.2007 and recovered different brands of liquor and beer. FIR No.4/2007-08 was registered and investigation commenced. An enquiry was initiated regarding the ownership of the premises and the Sarpanch of the Village Kadwal, Gram Panchayat Dunka from where the recovery was made, verified the fact that the house from which the liquor was recovered belonged to aforenamed Uda. During the course of investigation, the investigating agency started suspecting the involvement of the petitioner and accordingly, a panchnama was prepared on 7.12.2008 by the Excise Inspector and in the panchnama, reference has been made to two persons namely, Mangla Damor and Laxman Rawal who allegedly disclosed to the inspector that on the day on which Uda Damor was arrested, the petitioner Kundan Singh had also come to the village and had taken Akma with him. The panchnama also revealed that the witnesses informed the inspector that the liquor which was recovered belonged to Akma and Kundan Singh and that Uda had given the house in question on rent whilst he himself lived with his elder son Ujma. On the basis of this panchnama, the investigating agency proceeded to involve the petitioner in this case. A charge-sheet was filed against Uda in December, 2008 for the offences under Sections 19/54 and 19/54 (gha) of the Rajasthan Excise Act. The investigation was kept pending for petitioner and Akma. Thereafter, a supplementary charge-sheet was filed against the petitioner for the offences under Sections 19/54 and 19/54 (gha) of the Rajasthan Excise Act on 24.2.2010 whilst Akma was said to be absconding. 3. The learned trial judge by the order dated 11.10.2011 proceeded to frame charges against the petitioner as well as the co-accused Uda for the aforesaid offences. Thereafter, a supplementary charge-sheet was filed against the petitioner for the offences under Sections 19/54 and 19/54 (gha) of the Rajasthan Excise Act on 24.2.2010 whilst Akma was said to be absconding. 3. The learned trial judge by the order dated 11.10.2011 proceeded to frame charges against the petitioner as well as the co-accused Uda for the aforesaid offences. The petitioner challenged the order dated 11.10.2011 by filing a revision and the revisional court too has affirmed the order passed by the learned trial judge by order dated 26.11.2011. Accordingly, the petitioner has preferred the instant misc. petition challenging the aforesaid orders. 4. Learned counsel for the petitioner contended that in this case, there is no such material on the record of the case by which it can be inferred that the petitioner had any connection or control over the liquor recovered by the Excise Inspector. He submitted that the very story of the prosecution in this case is absolutely self contradictory and unworthy of credence. Pointing out to the charges framed against the accused, he contended that the charge which has been framed by the learned trial judge against the co-SB accused Uda is that he conspired to keep the liquor in question in his own house and simultaneously, charge has been framed against the petitioner with the allegation that he had taken the house of Uda on rent and concealed the liquor in the same house and that he was responsible for the offences of being in possession of illicit liquor. Learned counsel for the petitioner submitted that there is no evidence either documentary or oral on the record by which it can be inferred that the petitioner in any manner was concerned or connected with the liquor recovered. He further submitted that the only material available on the record to connect the petitioner with the alleged crime is the panchnama dated 7.12.2008 wherein reference is given to panchas having disclosed to the Excise Inspector regarding the liquor having been kept by the petitioner in the house of Uda. It was submitted that the panchnama is of absolutely no evidentiary value whatsoever. It was submitted that the recovery was made in December, 2007. The house in question was undisputedly of Uda and the Sarpanch upon enquiry by the Investigating Officer, verified the fact that Uda was in exclusive possession of the house in question. It was submitted that the panchnama is of absolutely no evidentiary value whatsoever. It was submitted that the recovery was made in December, 2007. The house in question was undisputedly of Uda and the Sarpanch upon enquiry by the Investigating Officer, verified the fact that Uda was in exclusive possession of the house in question. He, therefore, submitted that the orders impugned are absolutely illegal and amount to abuse of process of court and deserve to be quashed. 5. Per contra, learned PP vehemently opposed the arguments advanced on behalf of the petitioner and submitted that as per the panchnama prepared on 7.12.2008, the witnesses to the panchnama have clearly stated to the investigating officer that the house in question had been given on rent by Uda to the petitioner and Akma and as such, the petitioner has rightly been charged for the offences under the Excise Act and no interference is called for in the orders impugned by way of the instant misc. petition. 6. Upon a consideration of the arguments advanced at the bar and after going through the orders impugned and the material available on the record, it is apparent that the prosecution story is highly self contradictory. On the one hand, charge has been framed against Uda that he was in possession of the house as well as the liquor and at the same time, charge has also been framed against the petitioner for being in possession of the house as a tenant of Uda. Recovery in question was effected in this case in December, 2007 and for a period of nearly one year, there was neither any allegation nor any suspicion that the petitioner was in any manner connected or concerned with the liquor recovered. Thereafter, out of the blue, on 7.12.2008, the investigating officer prepared a panchnama wherein the version of two witnesses has been recorded in which they have stated that the petitioner and Akma had taken the house of Uda on rent. Had this been the situation, then either Uda should have been made a witness in the case or else, there should have been some documentary evidence for showing that the house in question was actually rented out to the petitioner. Had this been the situation, then either Uda should have been made a witness in the case or else, there should have been some documentary evidence for showing that the house in question was actually rented out to the petitioner. As has been stated above, the investigating officer had earlier taken on record the certificate of Sarpanch of Village and as per the said certificate, the exclusive and conscious possession of the house was attributed solely to Uda. Therefore, the panchnama subsequently prepared nearly after one year, cannot repose any confidence whatsoever. It is obvious that subsequent panchnama has been prepared just in order to someway or the other implicate the petitioner in this case and with no other objective whatsoever. The investigating agency for the first time after one year of the recovery, brought out the story regarding the petitioner being the tenant of the house in question. The prosecution story is not supported by any oral or documentary evidence whatsoever. The perusal of the record reveals that there is no statement of the two witness of the panchnama dated 7.12.2008 was taken down in writing by the investigating agency. 7. In view of the aforesaid facts, this Court has no hesitation in arriving at the conclusion that even if the prosecution story is accepted at its highest, there is no material on the record of the case by which it can be held that the petitioner was in any manner connected or concerned with the recovered liquor. The very fact that Uda as well as the petitioner are being tried jointly in this case is sufficient to discard the prosecution story qua the petitioner. 8. In view of the above discussion, the instant misc. petition deserves to be accepted and is hereby allowed. The orders dated 26.11.2011 and 11.10.2011 passed by learned Sessions Judge, Dungarpur and the learned Judicial Magistrate, Simalwara respectively and all subsequent proceedings qua the petitioner are hereby quashed.Stay petition also stands disposed of.Record be sent back forthwith.Petition allowed. *******