Subhash vs State Of Chhattisgarh

Conviction,Sentence

Under Section 7 of the Act (In

committing breach of Madhya Pradesh

Kerosene Dealers Licensing Order,

1979)","Rigorous Imprisonment for 3 months

and fine of Rs.2,000/-, in default

additional rigorous imprisonment for 15

days

Under Section 353 of the Indian Pena

Code","lRigorous Imprisonment for 3 months

and fine of Rs.2,000/-, in default

additional rigorous imprisonment for 15

days The jail sentences are directed to

run concurrently

was the owner of House No.565 which was searched by them.,

He has further admitted that in the said house family of Sharda Sao was residing, but he was not aware of number of members of the family. At the",

time of inspection, Sharda Sao was called, but he was not available. His children and son-in-law only were available. In paragraph 14 of his cross-",

examination, he has further admitted that Sharda Sao was having 2 licences for kerosene, but those licences were already suspended. In paragraph",

21, he has also admitted that the Appellants had spread out the kerosene in his presence. In paragraph 30, he has further admitted that the place",

mentioned in the licences issued to Sharda Sao was the house of Sharda Sao where they found kerosene.,

Goutam Chand Vaidya (PW3), who was along with Bhagwati Prasad Sharma (PW6), has deposed that at the time of incident, when they reached",

to the shop of Sharda Sao, both the Appellants and Kedar Sao were present there. He has further stated that at the time of inspection, Bhagwati",

Prasad Sharma (PW6) and S.D.M. Khandelwal were inside the shop and he was outside the shop. At that time, the Appellants had closed the shutter",

of the shop. The shutter was got opened. At that time, Bhagwati Prasad Sharma (PW6) and S.D.M. Khandelwal told that the Appellants and Kedar",

Sao had also scuffled with them. In paragraph 10 of his cross-examination, he has admitted the fact that he did not witness what happened inside the",

shop of Sharda Sao. He has also admitted the fact that in the house of Sharda Sao, the whole joint family of Sharda Sao resided. He has further stated",

that thereafter they went to Police Station Supela. After return from there, they seized the tanker and drums from the spot. They also seized one drum",

from the front of the house of Kunti Thakur in which kerosene was filled in.,

Food Inspector Huleshwar Katre (PW4), who was also present at the time of inspection, has stated that kerosene was filled in the drums kept in",

the rooms of the house. Crude oil was also filled in a canister. Some other canisters were also found which were taken into possession. At that time,",

no person was present there.,

Food Inspector Ramswaroop Yadu (PW5) has only stated that Bhagwati Prasad Sharma (PW6) had seized kerosene kept in an open ground.,

Inspector Ajit Choubey (PW1) is the witness who recorded First Information Report (Ex.P2) on the basis of the written report (Ex.P1) submitted by,

Bhagwati Prasad Sharma (PW6). He prepared spot-map (Ex.P3) and recorded statements of witnesses under Section 161 of the Code of Criminal,

Procedure. J.S. Saggu (PW2) seized photo copies of documents vide Ex.P9. Rajkumar Pandey (PW7) is the witness of seizure memo (Ex.P10 and,

P12). He did not support the seizures and has been declared hostile. Ram Mishra (PW8), son of Raj Narayan Mishra has only stated that he did not",

know about the person to whom his father had given the house on rent. This witness has also been declared hostile.,

On minute examination of the above evidence, it is clear that Food Inspectors Bhagwati Prasad Sharma (PW6), Ramswaroop Yadu (PW5),",

Huleshwar Katre (PW4) and Goutam Chand Vaidya (PW3) had searched House No.565, which belonged to Sharda Sao, father of both the",

Appellants. From the statements of above witnesses, it is also clear that 2 licences were issued in the name of Sharda Sao. Allegedly, the kerosene",

was found in the house belonging to Sharda Sao. Though both the Appellants and Kedar Sao were present there, they were not owners of the house",

and shop and there is no evidence on record to show that the said house and shop were in possession of the Appellants and Kedar Sao or they were,

running the said shop. From the evidence on record, it is also clear that some quantity of kerosene was found filled in a tanker and few drums kept in",

an open place. There is also no evidence on record to show that the said tanker and drums belonged to the Appellants and Kedar Sao or the kerosene,

filled therein belonged to them. In these circumstances, no offence under Section 7 of the Act is made out against any of the Appellants. With regard",

to the offence punishable under Section 353 of the Indian Penal Code, Bhagwati Prasad Sharma (PW6) has categorically stated that at the time of",

incident, when they were making inspection, both the Appellants and Kedar Sao were present there and the Appellants and Kedar Sao had assaulted",

them and after snatching the papers from them they had torn the same.,

They had also scuffled with him and they had made attempt to shut him behind the shutters. He has remained firm on the above facts during his,

lengthy cross-examination. His statement is duly corroborated by Food Inspector Goutam Chand Vaidya (PW3). Goutam Chand Vaidya has also,

stated that at the time of incident, both the Appellants and Kedar Sao were present at the spot and during inspection, he was present outside the shop",

and Bhagwati Prasad Sharma (PW6) was present inside the shop. At that time, the Appellants had closed the shutters of the shop. Though this",

witness has admitted that what had happened inside the shop he did not witness, as stated by him he had witnessed that the Appellants were present",

at the time of incident and they had closed the shutters of the shop. This version of the witness has not been rebutted. There is nothing on record on,

the basis of which it could be presumed that there was any previous enmity between Bhagwati Prasad Sharma (PW6) and the Appellants. In these,

circumstances, considering the entire evidence adduced by the prosecution, it is clear that both the Appellants had assaulted Bhagwati Prasad Sharma",

(PW6), who, at the time of incident, was a public servant and was discharging his duties. Thus, the offence under Section 353 of the Indian Penal",

Code is duly proved. Therefore, the finding of the Trial Court regarding the conviction under Section 353 of the Indian Penal Code is in accordance",

with law.,

Consequently, the appeal is allowed in part. The Appellants are acquitted of the charge framed under Section 7 of the Essential Commodities Act,",

but their conviction under Section 353 of the Indian Penal Code and the sentence awarded thereunder are affirmed.,

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.,