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2014 DIGILAW 1722 (RAJ)

Seduram Meena v. State of Rajasthan

2014-10-28

KANWALJIT SINGH AHLUWALIA

body2014
JUDGMENT 1. - Instant petition has been instituted under Section 397/401 of the Code of Criminal Procedure, 1973 by petitioner, Seduram Meena S/o. Nathuram Meena to assail the judgment dated 25.07.1984 rendered by the Judicial Magistrate, No.2, Jaipur District Jaipur, whereby petitioner was convicted for commission of offence punishable under Section 16/54 of the Rajasthan Excise Act, 1950 and was sentenced to undergo six months rigorous imprisonment with a fine of Rs. 500/-. In default thereof, to further undergo one month's rigorous imprisonment. 2. A further prayer has been made that the judgment dated 13.01.1989 passed by the Court of Additional Sessions Judge, Jaipur District Jaipur, whereby appeal preferred by the petitioner was dismissed and conviction was upheld & sentence awarded was affirmed be also set aside. 3. The case of prosecution is that the Excise Inspector, Dwarka Prasad Dixit [PW-1] received a secret information that the petitioner is having in his possession illicit liquor and in case a search is conducted, same can be recovered. In pursuance of said secret information received, Dwarka Prasad Dixit [PW-1] conducted search of the house of the petitioner and recovered 200 liters of liquor wash [lahan] i.e. material used for preparation of illicit liquor. The liquor, so recovered was taken into possession vide a separate memo. 4. Petitioner was charged for commission of offence punishable under Section 16/54 of the Rajasthan Excise Act, 1950. Prosecution in all examined five witnesses. 5. Present petition was preferred in the year, 2001 and the sentence awarded upon the petitioner was suspended on 27.07.2001. 6. On various dates, the Registrar of this Court had requisitioned the records from the Courts below, but a report has been received that the said record has been weeded out. 7. Consequently, with the consent of the learned counsel for the parties, the present revision petition is taken up for hearing and final disposal, on the basis of the records available with the advocate for the petitioner. 8. The record available with the advocate for the petitioner is made a part of the Court record. 9. Prosecution in all examined five witnesses. 10. Dwarka Prasad Dixit appeared as PW-1. He deposed regarding search and recovery of liquor wash. 11. In cross-examination, Dwarka Prasad Dixit [PW-1] stated that accused is employed in Jaipur, his younger brother studied at Jaipur and the accused & his father is not having any house in the locality. 9. Prosecution in all examined five witnesses. 10. Dwarka Prasad Dixit appeared as PW-1. He deposed regarding search and recovery of liquor wash. 11. In cross-examination, Dwarka Prasad Dixit [PW-1] stated that accused is employed in Jaipur, his younger brother studied at Jaipur and the accused & his father is not having any house in the locality. He further stated that the possession and the ownership of the father or brother of the petitioner was not noted by him in the Police papers. 12. PW-2 Laxman Das has resiled from his previous statement and was declared hostile by the prosecution. He stated that in his presence no search was conducted and no samples were obtained by the Excise Officials. 13. Similarly, PW-3 Nathu had also not supported the prosecution case. He stated that Excise Officials met along with the accused at a distance of ½ kilometers from the house of accused and had obtained his signatures on the papers and he had not witnessed the recovery of liquor wash [lahan]. 14. PW-4 Om Prakash has stated that he was posted as Guard in the Excise Department and he had carried samples of liquor wash to the Forensic Science Laboratory. He is an official witness. He had accompanied Excise Inspector. He stated that he had not seen the papers regarding ownership of the house and no verification was made from the "Patwari" or Sarpanch. However, he stated that accused was found sitting inside the house. 15. PW-5 Bhanwaroo Khan had submitted an affidavit to prove the link evidence. 16. Mr. Vijay Poonia, the learned counsel appearing for the petitioner, has submitted that in the present case, prosecution has miserably failed to prove the ownership of the house. Counsel further submitted that no witness of the locality has been examined to say that the petitioner is an owner of the house or same was in his possession. 17. Counsel appearing for the petitioner contended that neither any revenue official nor any Sarpanch or Panch of the Gram Panchayat or Village Chowkidar was examined by the prosecution to say that the petitioner was in conscious possession of the house. Counsel further contended that other members of the family of the accused were also residing in the same vicinity and furthermore, it was incumbent for the prosecution to prove to the hilt that the petitioner was in the exclusive possession of the house. 18. Counsel further contended that other members of the family of the accused were also residing in the same vicinity and furthermore, it was incumbent for the prosecution to prove to the hilt that the petitioner was in the exclusive possession of the house. 18. Counsel appearing for the petitioner argued that this Court cannot become oblivious of the fact that two independent witnesses associated by the prosecution to comply with the provisions of Section 100 Cr.P.C. have not supported the case of prosecution. 19. I find merit in the above submissions advanced by the learned counsel appearing for the petitioner. 20. Two independent witnesses examined have turned hostile to the prosecution case. They have stated that they were made to sign the papers when accused was away from the house and was at a distance of ½ kilometers in company of excise official. 21. There is also merit in the contention raised by the learned counsel appearing for the petitioner that non-examination of the revenue official, members of the Panchayat or Sarpanch or any respectable of the locality is fatal to the prosecution. Onus was on the prosecution to prove that the petitioner was in exclusive, conscious possession of the house. On this material aspect, prosecution has failed and thus, this Court has no other option, except to extend the benefit of doubt to the petitioner. 22. Consequently, the present petition is accepted by granting the benefit of doubt to the accused-petitioner. Conviction pronounced and sentence awarded are set aside and the petitioner is acquitted of the charges.Revision allowed. *******