Dayal Das vs State Of Rajasthan

2. We have heard the learned counsel for the

parties at length.

3. This appeal emanates from the judgment and

order dated 25th May, 2006 passed by the High Court

of Judicature at Rajasthan, Jaipur Bench, in

Criminal Appeal No.356 of 1984 by which the High

Court has affirmed the order of conviction and

sentence passed by the Trial Court.

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4. Brief facts which are relevant to dispose of

this appeal are recapitulated as under:

On 26.8.1979 at 11.30 a.m., the Station House

Officer, Police Station, Clock Tower, Ajmer recorded

the Parcha Bayan (Ext.34) of Bheru Lal, PW-12 in

Jawahar Lal Nehru Hospital, Ajmer. According to the

Parcha Bayan, on 23.8.1979 at about 8.45 p.m., while

he was standing outside the New Majestic Cinema,

Hari Singh, Band Master and Ram Niwas came out from

the shop of Soda Lemon belonging to Dayal Das Sindhi

- appellant herein. Both were known to him (Bheru

Lal). All these persons consumed liquor at the shop

of the said Dayal Das Sindhi. While they were

consuming liquor at the shop of Dayal Das Sindhi,

one Lal Chand Thelewala was also seen drinking

liquor in the said shop.

5. Bheru Lal became unconscious and when he

regained consciousness on the next morning, he found

himself in the hospital and there he learnt that

Lal Chand had died because of consuming of illicit

liquor.

6. On the basis of the Parcha Bayan, the Police

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Officer registered the First Information Report

("FIR" for short) and started investigation. After

investigation it was found that seven persons,

namely, Lal Chand, Arjun, Bhagwan, Chaman Das,

Dhanna, Jethanand and Suresh Rawat lost their lives

due to consuming of illicit liquor.

7. The Additional Sessions Judge, Ajmer, after

trial of this case delivered the judgment on

7.8.1984 in Sessions Case No.3/1980 convicting the

appellant Dayal Das under Section 304 Part-II and

Section 328 of the Indian Penal (IPC) Code and

Section 54-A of the Rajasthan Excise Act. He was

sentenced to undergo rigorous imprisonment for ten

years and a fine of Rs.4,000/- under Section 304

Part-II of the IPC and he was further convicted and

sentenced to simple imprisonment for three years and

imposed a fine of Rs.3000/- under Section 54-A of

the Rajasthan Excise Act. However, both the

sentences were directed to run concurrently.

8. The appellant aggrieved by the said judgment

of the Additional Sessions Judge, preferred an

appeal before the Rajasthan High Court. The High

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Court in the impugned judgment has upheld the

judgment of the Trial Court.

9. The Trial Court and the High Court

concurrently held that the deceased Lal Chand had

purchased illicit liquor from the shop of the

appellant Dayal Das Sindhi and drinking of that

illicit liquor at the shop of the appellant was the

cause of death of Lal Chand.

10. Mr. D.N. Goburdhan, learned counsel appearing

for the appellant as amicus curiae made threshold

submission that both the judgments of the Trial

Court and the High Court are perverse because the

evidence of Bheru Lal, PW-12 has not been correctly

read and appreciated by both the Courts below.

According to Mr. Goburdhan, in the entire evidence

of PW-12, it is nowhere mentioned that illicit

liquor was purchased by the deceased Lal Chand from

the shop of Dayal Das Sindhi. All what is mentioned

in the statement is that he saw Lal Chand drinking

in the shop of Dayal Das Sindhi. It is difficult to

connect the accused with the crime only on the

evidence that Lal Chand was seen drinking at the

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shop of Dayal Das Sindhi.

11. We have ourselves read the original statement

of Bheru Lal, PW-12 but could not find from the

statement that the deceased Lal Chand had purchased

illicit liquor from the shop of the appellant. This

part of the testimony of Bherulal has led to the

conviction of the appellant but the same is totally

missing from the original statement of Bheru Lal,

PW-12. Consequently, the appellant cannot be

connected with the crime on the basis of the

statement of PW-12.

12. It may be pertinent to mention here that the

other two witnesses, namely, Hari Singh, PW-9 and

Ram Niwas, PW-13 had turned hostile during the trial

of this case. It may also be pertinent to mention

that the liquor consumed by Lal Chand at the shop of

the appellant Dayal Das, was not sent for chemical

examination. Only on the basis of the statement made

by Bheru Lal, PW-12, that the deceased Lal Chand was

drinking at the shop of Dayal Das Sindhi, it is

difficult to sustain the conviction of the appellant

under Section 304 Part-II of the IPC.

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13. Learned counsel appearing for the State of

Rajasthan fairly submitted that in the entire

evidence of Bheru Lal, PW-12, he had nowhere stated

that the deceased Lal Chand purchased illicit liquor

from the shop of Dayal Das Sindhi.

14. On a careful reading of the original statement

of Bheru Lal, PW-12, we have no hesitation in

arriving at the conclusion that both the Sessions

Court and the High Court have erroneously read and

comprehended the statement of Bheru Lal, PW-12 and

unfortunately that has led to the conviction of the

appellant.

15. In this view of the matter, we are left with

no option but to set aside the impugned judgment of

the High Court as also the judgment of the Trial

Court. Consequently, the conviction of the appellant

is set aside and he is directed to be released from

jail forthwith unless required in connection with

any other case.

16. The appeal filed by the appellant is allowed

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and disposed of accordingly.

17. The appellant was not represented by any

counsel and this Court had to appoint amicus curiae

in this matter. Therefore, we direct that copies of

this Judgment/order be sent to all concerned

authorities forthwith for compliance of the order.

18. Before parting with this case, we would like

to place on record our appreciation for very able

assistance provided to us by the learned amicus

curiae Mr. D.N. Goburdhan,Advocate.

.....................J (DALVEER BHANDARI)

.....................J (DEEPAK VERMA)

New Delhi;

February 22, 2011.