Hon'ble YADAV, J. - (1.) PUT the facts briefly are as follows. It is alleged that on 29.1.77 PW 8 Jodharam lodged a report (Ex.P./4) before the Superintendent of Police, Jodhpur stating therein that mother of petitioner Chainaram had died on 19.1.77 and 'Mratyu Bhoj' is going to take place from 9.00 a.m. to 11 a.m. on the same day i.e. on 29.1.77 in village Jhanwar and food had been prepared for about 1000-1200 persons. The Superintendent of Police forwarded the said information to the Circle Inspector(East) for necessary action. The Circle Inspector Shri Ram Jeewan Meena thereupon proceeded on the spot alongwith Shri K.C. Sharma, Sub-Divisional Magistrate (PW 1), Shri S.N. Calla, Enforcement Officer (PW 2) and other police personnel reached at village Jhanwar on the basis of information given by PW 8 Jodha Ram as stated above. On seeing the police party, about 150-200 children and women alleged to have started running from the scene. In the 'Nohra' the food stuff i.e. 'Lapsi' and 'Kaddi' was found in the utensils. The other articles for preparing the food were also found there. 252 Brass Plates (Thalies) were found used (unwashed) on the spot and 404 kg. Lapsi and 210 kg. 'Khata' (Kaddi) were recovered on the spot and was auctioned for Rs. 601/-. The petitioner Chaina Ram was arrested on the spot and case was registered against him at Police Station Jhanwar. After investigation, challan was presented in the court of Chief Judicial Magistrate, Jodhpur for offence under Sec. 3/7 of the Essential Commodities Act, 1955 for contravening the provisions of the Rajasthan Guest Control Order, 1978.
(2.) LEARNED Chief Judicial Magistrate, Jodhpur vide his judgment dated 4.12.81, after trial, held that the petitioner is guilty for the offence under Sec. 3/7 of the Essential Commodities Act, 1955 and sentenced him to undergo one year's S.I. and to pay a fine of Rs. 1000/-, in default of payment of fine, he was required to undergo 6 months S.I. He confiscated the articles recovered on the spot and forfeited Rs. 601/- of auction amount of 'Lapsi' and 'Kaddi'. Aggrieved against the aforesaid conviction and sentence passed by the learned Chief Judicial Magistrate, Jodhpur on 4.12.81, the accused-petitioner preferred an appeal before the learned Sessions Judge, Jodhpur, who partly accepted the appeal by reducing the sentence to the term of 3 months' S.I. and a fine of Rs. 100/- in default of payment of fine to further undergo 15 days S.I. by his judgment dated 17.10.85. The learned Sessions Judge released the articles confiscated by the Chief Judicial Magistrate but affirmed the order of forfeiture of Rs. 601/- as auction amount. Aggrieved against both the judgments passed by the learned Chief Judicial Magistrate, Jodhpur and learned Sessions Judge, Jodhpur, the present petitioner filed the instant revision on the ground, inter alia, that the prosecution has not been able to prove the case beyond all reasonable doubts and finding of guilt recorded by both the courts-below is based on conjectures and surmises leading to suspicion. I have heard learned counsel for the petitioner and learned Public Prosecutor for the State. A close scrutiny of the finding of guilt recorded by the learned Chief Judicial Magistrate vide his judgment dated 4.12.81 and finding of guilt affirmed by the learned Sessions Judge, Jodhpur vide his judgment dated 17.10.85 throw a flood of light that the finding of guilt recorded by both the courts-below are not based on appreciation of evidence available on record. As a matter of fact, in utter ignorance of dispensation of justice in criminal side, the finding of guilt has been recorded on the basis of ad-hoc presumption and suspicion. It is held that whenever a person is about to be deprived of his life and liberty, which is sacrosanct in civilized society then criminal courts must address themselves that the finding of guilt should not be recorded on the basis of ad-hoc presumption and suspicion but must up bear in their mind the following principles of criminal jurisprudence : - (a) The prosecution story may to true but it must be true and between may be true and must be true, there is a large gap, which is to be travelled by the prosecutiori agency by unimpeachable evidence. (b) Suspicion cannot be substituted as a substantive evidence for recording the finding of guilt.
(3.) A perusal of the judgment given by the Sub-ordinate Courts in the present revision petition lead towards an irresistable conclusion that the finding of guilt recorded against the petitioner by them, is based on mere suspicion and on ad-hoc presumption. In my humble opinion, in the present case, the prosecution has not been able to prove the charges against the petitioner by producing any definite, cogent, reliable and oral direct evidence to the effect that more than 100 persons were taking their meals on the spot at the 'Nohra' of the petitioner. Learned Chief Judl. Magistrate and learned Sessions Judge have based their finding merely on conjectures and surmises for recording the finding of guilt. Both the courts-below have based its finding of guilt on 252 Brass plates (Thaiies) unwashed and 404 kg. 'Lapsi' and 210 kg. 'Kaddi' found on the spot. The prosecution has miserably failed to establish that 252 Thalies, which were recovered on the spot, were used and that too, atleast by 252 persons at a time for taking meals. The finding of both the courts-below that about 404 kg. 'Lapsi' and 210 kg. 'Kaddi' is sufficient for about 650 persons for meals is also not based on evidence but in fact based on ad-hoc presumption and suspicion which is not permissible under law. In the instant case, the revisionist has also produced defence evidence, DW 1 Roopa Ram to prove that there were marriages of three girls on that day in the family of the petitioner, who were living separately. While discussing the defence evidence adduced by the revisionist, both the courts-below recorded curiously again, a finding that even if there were marriages of three girls in the family of the revisionist even then, under the Rajasthan Guest Control Order, 1978 only 300 persons could have taken their meals. The finding of the learned Sessions Judge to the effect that the meals prepared by the revisionist was sufficient for 650 persons, is also based on no evidence, inasmuch as, none of the witness examined in support of the prosecution, had counted the number of women and children running from the 'Nohra' of the revisionist after seeing the raiding police party. All the independent witnesses examined by the prosecution namely; PW 4 Naina Ram, PW 5 Jeetu Ram and PW 7 Dhan Karan have not supported the prosecution story and all the witnesses who gave number of persons present 100 orl25 have been declared hostile. An other independent witness examined by the prosecution namely; PW 13 Mohanlal had stated that only 100 or 50 persons were present on the spot and he has not been declared hostile for the reasons best known to the prosecution which further falsify the prosecution case. The statement of PW 13 aforesaid is against the prosecution story. ;