SURJA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused petitioner was convicted under section 54 (a) of the I Rajasthan Excise Act and sentenced to six months' rigorous imprisonment and a line of Rs. 200.00 and in default of payment of fine to further rigorous imprisonment for a period of 1, 1/2 months by the learned Judicial Magistrate, Sikar. On appeal by the accused the learned Sessions Judge, Sikar, maintained the conviction but reduced the sentence to three months' rigorous imprisonment and a line of Rs. 100.00 and in default of payment of fine to further undergo rigorous imprisonment for 15 days. Learned counsel for the petitioner first contended that no case is made out against the petitioner on merits. The witnesses of recovery have not supported the prosecution case and it was wrong on the part of the courts below to convict the petitioner on the sole testimony of the Excise Inspector Bajrang Lal Guleria PW 4. It is further contended that the learned Sessions Judge committed a serious error in placing reliance on some part of the statement of the witnesses of recovery to support the prosecution case while discarded their evidence which supported the defence case, Learned counsel also pointed out a number of discrepancies in the statement of PW 4 Bajrang Lal which do not finds support from the other prosecution witnesses.

(2.) Both the courts below have placed reliance on the statement of PW 4 Bajrang Lal Excise Inspector. The defence has not been able to point out any ground or circumstances on the basis of which it can be held that the Excise Inspector was in any manner inimical towards the accused petitioner. It is not necessary that if the witnesses of recovery have turned hostile in that case their entire statement may be discarded. I don't find any error of jurisdiction committed by the courts below in the matter of assessing the prosecution evidence and it cannot be said that the judgment in any manner is perverse.

(3.) Learned Counsel for the petitioner then contended that a lenient view should be taken in the matter of sentence awarded to the petitioner. Reliance is placed on Hazari Vs. The State of Rajasthan: 1978 ACC 224 and Joginder Singh Vs. The State of Punjab : 1980. Cr. L. J. 1218 . Learned counsel for the petitioner contended that the petitioner has remained in Jail for three days during the trial and is now in Jail from 13th April, 1981. It is further submitted that the petitioner was not found in possession of any working still and the prosecution case in this regard has been disbelieved. The age of the petitioner is 60 years and there is no evidence on record to show that he is a previous convict. Learned Public Prosecutor has tried to distinguish the case of Hazari (supra) on the ground that in that case the benefit of probation was given on account of a concession made by the Public Prosecutor. It is further submitted that it is an offence under the Excise Act and there are no other circumstances to take a lenient view in awarding sentence,