- (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. It has been argued by learned counsel for the appellant that the appellant had only gone to purchase the Kerosesne Oil from the shop of Chittru and he was sitting at the said shop on the request of Chittru and he has been falsely implicated in the present case by the S.D.M, Beni Prasad and Supply Inspector Hardwari Prasad in order to save Chittru, the fair price shop dealer who was responsible for the black marketing of Kerosene Oil. Learned counsel for the appellant further submitted that there is no independent witness of the occurrence though the shop in question was in a busy market situated in Chauri Bazar in order to corroborate the statement of the S.D.M, P.W.1 and Supply Inspector Hardwari Singh, P.W.2. Moreover the fair-price shop keeper, Chattru was also not made an accused by the raiding party and it was only the appellant who was named in the FIR and was charge sheeted and was tried by the trial court. He further submits that the trial court has convicted the appellant and sentenced him only on the basis of the evidence of two prosecution witness who according to the trial court were responsible Government Servant having no enmity with the appellant and found that the evidence was sufficient to prove the prosecution case. He further argued that one Lalta Prasad and Amar Nath to whom the accused is said to have been selling the Kerosene Oil at a much higher price were also not examined by the prosecution which itself raises doubt about the prosecution story. It has been further submitted that the finding recorded by the trial court that the aforesaid two persons are not coming forward to give evidence against the shop keeper because they belongs to their own village and with whom they deal daily. Hence on this count, they did not support the prosecution story and they did not appear to depose against the shopkeeper appears to be highly improbable and the prosecution has tried to conceal the real facts to save the shopkeeper. Learned counsel for the appellant further submits that the trial court had committed gross error in believing the statement of P.W.1 and P.W.2 without there being any other corroborated piece of evidence to support their contention. Hence the judgment and order passed by the trial court in convicting the appellant solely on the basis of the two Government Servant who were the prosecution witnesses, the trial court had committed the illegality in believing their testimony and convicted the appellant. Hence the judgment and order passed by the trial court is liable to be set-aside by this Court and the appellant be acquitted.
(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.;