DAYAL DASversusSTATE OF RAJASTHAN

                       [2011] 2 S.C.R. 1136


 A                         DAYAL DAS
                                 v.
                     STATE OF RAJASTHAN
                (Criminal Appeal No. 526 of 2011)
                       FEBRUARY 22, 2011
 B
       [DALVEER BHANDARI AND DEEPAK VERMA, JJ.]

         PENAL CODE, 1860:

 C      ss.304 (part-II) and 328, and s.54-A of Rajasthan Excise
   Act - Conviction by trial court and High Court, of accused on
   the statement that the person who died of consuming illicit
   liquor was seen drinking in the soda-lemon shop of the
   accused - HELD: The statement of the witness which led to
 D conviction of the accused does not indicate that the deceased
   had purchased the illicit liquor from the shop of the accused
   -Moreover, the liquor consumed by deceased from shop of
   accused was not sent for chemical examination -
   Consequently, accused cannot be connected with the crime
 E on the basis of such evidence - Judgments of trial court and
   High Court are set aside - Accused is acquitted - Rajasthan
   Excise Act.

          On the basis of 'Parcha Bayan' of PW12, the police
     registered an FIR against the accused, to the effect that
   F PW12 alongwith two others consumed liquor in the soda
     lemon shop of the accused; at that time he saw one 'LC'
     also drinking in the shop of the accused. PW12 stated that
     he became unconscious and when he gained
     consciousness the following morning, he found himself
   G in the hospital and learnt that 'LC' had died because of
     consuming illicit liquor. The trial court convicted the
     accused of the offences punishable u/ss 304 (Part -II) and
     328 IPC, and s.54-A of the Rajasthan Excise Act and
     sentenced him to imprisonment for 10 years. The High
.. H                             1136
       DAYAL DAS v. STATE OF RAJASTHAN                1137


Court upheld the conviction and the sentence.                 A
     In the appeal filed by the accused, it was contended
for the appellant that the statement of PW12 nowhere
mentioned that the victim died of the illicit liquor
purchased from the shop of the accused and, as such,          8
the evidence did not connect the accused with the crime.

    Allowing the appeal, the Court

      HELD: 1.1 It could not be found from the original
statement of PW-12 that the deceased had purchased            C
illicit liquor from the shop of the appellant. This part is
totally missing from the original statement of PW-12,
though his testimony has led to the conviction of the
appellant. Consequently, the appellant cannot be
connected with the crime on the basis of the statement        D
of PW-12. [Para 11] [1140-C-D]
      1.2 It may be pertinent to mention here that the other
two witnesses, namely, PW-9 and PW-13 had turned
hostile during the trial. It may also be pertinent to mention
that the liquor consumed by the deceased at the shop of E
the appellant, was not sent for chemical examination.
Only on the basis of the statement made by PW-12, that
the deceased was drinking at the shop of the deceased,
it is difficult to sustain the conviction of the appellant u/s
304 (Part-II) IPC. Thus, both the Court of Session and the F
High Court have erroneously read and comprehended
the statement of PW-12, and, unfortunately, that has led
to the conviction of the appellant. The judgments of the
High Court and the trial court are set aside. Consequently,
the conviction of the appellant is set aside and he is G
directed to be released. [Para 12, 14 and 15] [1140-E-F,
H; 1141-A-B]                         ..   .                .

    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 526 of 2011.
                                                              H
    1138    SUPREME COURT REPORTS                 [2011] 2 S.C.R.

A       From the Judgment & Order dated 25.05.2006 of the High
    Court of Rajasthan at Jaipur in S.B. Crl. Appeal No. 356 of
    1984.

      D.N. Goburdhan, Prabal Bagchi, Anirudh Anand for the
B Appellant.

        Abhishek Gupta, R. Gopalakrishnan for the Respondent.

        The Judgment of the Court was deliver~d by

C       DALVEER BHANDARI, J. 1. Delay condoned. Leave
    granted.

         2. We have heard the learned counsel for the parties at
    length.

D       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.
E        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
F (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
G 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.
H
         DAYAL DAS v. STATE OF RAJASTHAN                      1139
              [DALVEER BHANDARI, J.]

      5. Bheru Lal became unconscious and when he regained             A
 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 Officer
                                                                       8
   registered the First Information Report ("FIR" for short) and
 ·~ 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.
                                                                       c
       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           D
  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           E
• 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 Court in the impugned
 judgment has upheld the judgment of the Trial Court.                  F

      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         G
 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        H
       1140     SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A 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
8 whatis 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 shop of Dayal Das Sindhi.

I          11. We have ourselves read the original statement of
    C 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,
    D 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
    E 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
    F shop of Dayal Das Sindhi, it is difficult to sustain the conviction
      of the appellant under Section 304 Part-II of the IPC.
            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
    G 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
    H erroneously read and comprehended the statement of Bheru
        DAYAL DAS v. STATE OF RAJASTHAN                        1141
             [DALVEER BHANDARI, J.]

Lal, PW-12 and unfortunately that has led to the conviction of          A
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        8.
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 and
~isposed of accordingly.
                                                                        c
     17. °fhe 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 an concerned authorities forthwith for compliance of the order.
     18. Before parting with this case, we would like to place          D
on record our appreciation for very able assistance provided
to us by the learned amicus curiae Mr. D.N, Goburdhan,
Advocate.
R.P.                                              Appeal allowed.