STATE OF RAJASTHAN Vs. VISHNA

JUDGEMENT

(1.) THE State has filed this appeal with special leave against the acquittal of respondent Vishna from offence under Rule 3/6 of the Indian Pass -port (Entry into India) Rules, (here in after to be referred as 'the Rules') by the learned Judicial Magistrate, Barmer by his judgment dated May 29, 1985.

(2.) THE prosecution story, briefly stated, is that on January 1, 1979, at 12.00 in the night, Sub -Inspector Than Singh, In -charge post B.S.F., Janpalia, received information that some smuggler was coming from Pakistan towards India, where upon, a party of the B.S.F. Laid an ambush. At about 3.00 a.m. a man was found coming with a camel from across the boundary. When he came at about 130 yards inside the Indian border, the party surrounded him and caught hold him. On search, 128 shirts and 2 watches were found on his person. They along with the camel and its saddle were taken into possession and the accused was brought to the outpost of BSF. The seized articles were deposited with the Custom Department and a report was made at the police station, Sarwa about this incident. After usual investigation, the police put up a challan against the accused and he pleaded not guilty of the charge. The prosecution examined ten witnesses. Out of them, PW 9 Bahadur and PW 10 Mukim, the alleged Motbirs of the arrest and recovery, turned hostile. The rest of the witnesses, who are members of the B.S.F. and who formed the ambush party, have supported the prosecution story. The learned Magistrate, then examined the accused under Section 313, Cr. PC He denied the prosecution story, but did not produce any evidence in defence. The learned Magistrate, after hearing the learned Public Prosecutor and the learned Counsel for the accused, rejected the prosecution story on two grounds. The first ground relied upon by the learned Magistrate is that where as the other B.S.F. personnel who have appeared in the witnesses box have stated that Shri Than Singh was not present at the time of ambush, but was called later. Than Singh states that he also was amongst the ambush party and this according to the learned Magistrate was a very serious contradiction between the statements of the witnesses. The second ground, on which the learned Magistrate disbelieved the prosecution story is that some of the witnesses stated that it was a moon -lit night, where as the others state that it was a dark night. Apart from these two discrepancies, learned Magistrate has not found any other weakness in the prosecution story.

(3.) HAVING given my careful consideration to the rival contentions, I am of the opinion that the contention of the learned Public Prosecutor deserves to be accepted.