KHURMULLI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) HEARD Sri R.C.Yadav, learned counsel for the appellant, learned AGA and perused the record. This appeal has been filed against the judgment and order dated 19.2.1986 passed by Special Sessions Judge, Jaunpur in Criminal Case No.23 of 1984 (E.C.Act) convicting the appellant and sentencing him to undergo R.I. for one year, u/s 3/7 E.C. Act. The prosecution case in brief is that on 26.11.1983, Beni Prasad, S.D.M, Kerakat was going from Jalalpur, got an information about the sale of Kerosene Oil which was being sold at a higher price and was being black marketed. He reached the place of occurrence along with Supply Inspector, Hardwari Singh to the shop of one Chittru situated in Chauri Bazar. He sold Kerosene Oil to two persons namely Lalta Prasad and Amar Nath @ 2.75 paisa per litre in place of 2.20 paisa per litre. The S.D.M Beni Prasad got a report written by Hardwari Singh and lodged it at the police station along with the accused for offence u/s 3/7 of the E.C. Act which was registered at the Police Station against the accused. The investigation was carried out by the Investigating Officer and thereafter the sanction was obtained from the District Magistrate who accorded the same on 16.1.1984 and charge sheet was submitted against the accused.

(2.) THE accused pleaded not guilty. He said that he was not selling the Kerosene Oil. He had gone to purchase the Kerosene Oil from the shop of Chittru. He was asked to sit at the shop and has been falsely implicated due to enmity. The prosecution in support of it's case, examined Beni Prasad, the then S.D.M. Kerakat, Hardwari Singh, Supply Inspector. As per prosecution story, the accused was the sales-man of Chittru whose shop was raided by the S.D.M. and the being the sales-man of Chittru was found selling the Kerosene Oil at a highter rate, whereas according to defence, the acused was no doubt present on the spot sitting in the shop of Chittru and on the request of Chittru in his absence but was not a sales-man.

(3.) LEARNED AGA on the other hand has submitted that the evidence of P.W.1 and 2 who were responsible Government Servant and who had found the appellant sitting on the shop of Chittru and selling the Kerosene Oil at a higher rate, cannot be doubted and the finding recorded by the trial court in convicting and sentencing the appellant for an offence u/s 3/7 E.C. Act is legally justified and should not be interfered with by this Court and the prosecution has proved its case beyond reasonable doubt against the appellant. Considering the submissions of the parties from and from the perusal of the evidence on record, it is apparent that the two witnesses namely S.D.M. Beni Prasad (P.W.1) and Supply Inspector Hardwari Singh (P.W.2) have found the appellant sitting on the shop of the Chittru and selling the Kerosene Oil to one Lalta Prasad and Amar Nath at a higher rate was believed by the trial court simply because they were Government servants and there being no reason to falsely implicate the accused in the present case by the said two witnesses as has appears to be based on surmises and conjectures. Admittedly Chittru whose shop was raided by the two prosecution witnesses no FIR was lodged against him and only the case was registered against the appellant which raises suspicion and doubt about the genuineness of the prosecution story. Moreover, the two persons namely Lalta Prasad and Amar Nath of the village who are said to have purchased the Kerosene Oil at a higher rate from the shop of the Chittru where the accused-appellant is said to have been found selling the same to them were also not produced by the prosecution in order to corroborate the prosecution story. The shop in question is said to have been situated in Chauri Bazar which is a marketing place and no independent witness has come forward to support the prosecution story. The finding recorded by the trial court that Lalta Prasad and Amar Nath to whom the Kerosene Oil was sold by the appellant at a higher rate, have not come forward to suport the prosecution story on the ground that there being the persons of the village did not want to depose against the shop keeper as they have to deal daily with him appears to be not reasonable and a plausible explanation which was given by the prosecution and accepted by the trial court as the two witnesses were the witnesses of occurrence and the prosecution by not producing the said witnesses to support it's case has tried to conceal the origin of the prosecution case. Thus from the evidence produced by the prosecution it is not established beyond reasonable doubt that the appellant was found selling the Kerosene oil at a higher rate or he was indulged in black marketing. The conviction of the appellant on the testimony of only two witnesses without there being further corroboration by a clinching evidence appears to be suspicious and further raises truthfullness of the prosecution story. Hence the conviction and sentence of the appellant recorded by the trial court is not sustainable and the judgment and order dated 19.2.1986 passed by the trial court is set-aside. The appellant is on bail. He need not surrender, his bail bonds and sureties discharged. The appeal is allowed.