Bombay High Court
Kishore @ Baalsaheb Ganpat Shinde vs The State Of Maharashtra on 7 July, 2021
Bench: Prakash Deu Naik
rpa 1/8 1 appeal 295 1998.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.295 OF 1998
Kishor @ Balasaheb Ganpat Shinde ]
Aged 36 years, ]
Residing at Budhwar Peth, Karad, ]
District - Satara. ] .. Appellant
Versus
State of Maharashtra ] .. Respondent
......
None for the Appellant.
Mr.R.M. Pethe, APP for the Respondent - State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : JULY 07, 2021.
JUDGMENT :
The Appellant has preferred this Appeal challenging
the judgment and order dated 9th January, 1998, passed in Special
Case No.7 of 1992, convicting him for the ofences punishable
under Section 3(2)(c) punishable under Section 7(i)(a)(ii) read
with Section 12 A(2) of the Essential Commodities Act. He is
sentenced to sufer R.I. for two years and to pay fne of
Rs.5,000/-, in default, to sufer further R.I. for six months.
rpa 2/8 1 appeal 295 1998.doc
2 The case of the prosecution is that on 16th April, 1992,
information was received by P.I. More that one Kishor @ Bala
Shinde (appellant) sells kerosene at higher rate near Prabhat
Talkies at Karad. It was decided to conduct raid at the spot of
incident. He instructed P.S.I. Rajendra Chavan (P.W.6) to efect
raid. P.W.6 called two persons to act as panchas. Ananda More
(P.W.1) and Shivaji Mane (P.W.2) acted as panchas. Ramchandra
Waiker (P.W.3) was instructed to act as punter. He was given
Rs.50/- to purchase kerosene. The punter approached the
accused for purchasing the kerosene. He purchased 5 liters of
kerosene. He gave Rs.50/- note to accused. Rs.25/- were returned
to punter. Amount of Rs.25/- was seized. Note of Rs.50/- was
found with accused. The accused had sold kerosene at the rate of
Rs.5 liter, through price was Rs.2.65 per liter.
2 Charge was explained and read over to him. The
accused pleaded not guilty. The proceedings were conducted by
following summary procedure.
3 Prosecution has examined six witnesses. P.W.No.1 was
Ananda Baburao More is the panch witness, P.W.No.2 is Shivaji
Mane is another panch witness. P.W.3 is Ramchandra Waikar
rpa 3/8 1 appeal 295 1998.doc
acted as a punter, P.W.4 Mohan Bodare, P.W.5 Hambirrao
Kumbhare and P.W.6 Rajendra Chavan were the policemen
attached to Karad police station. After recording the evidence of
statement of the appellant was recorded under Section 313 of
Cr.P.C.
4 I have perused the evidence of the witnesses. The
case of the prosecution is based on the evidence of three
independent witnesses P.W.1, P.W.2 and P.W.3. It is alleged that
information was received that the appellant is selling kerosene at
higher price. P.W.3 had acted as punter. He was instructed to
purchase kerosene from accused by using Rs.50/- note given to
him. He did not support the prosecution case. In his examination-
in-chief he stated that he do not know the accused. On 16 th April,
1992, he was working on cycle shop. He was called at the police
station and asked to sign some papers. He signed it. He did not
go anywhere with the police. He did not purchase kerosene. He
was declared hostile by the prosecution and cross-examined by
learned APP. In the cross-examination, he denied all the
suggestions. Thus, the independent evidence about the sale of
kerosene at higher price to the punter is not of assistance to the
prosecution. Two other independent witnesses to corroborate the
rpa 4/8 1 appeal 295 1998.doc
prosecution case that kerosene was being sold by the appellant
at higher price were examined as panch witnesses, viz. P.W.1 and
P.W.2. P.W.1 has deposed that he was called by the police to
witness the panchanama. He do not know about its contents. He
admitted his signature on the panchanama, but denied the
contents of the panchanama. He was cross-examined by the
prosecution. However, the exercise was futile as he did not
support the prosecution case in any manner. P.W.No.2 Shivaji
Mane is another panch witness. He has deposed that he was
called by the police at Karad to witness panchanama. Other
panch was also with him. His signature was obtained. At the
request of learned APP, he was cross-examined. He denied all the
questions put to him and did not support the prosecution case in
any manner. Thus, the three independent witnesses examined by
the prosecution to substantiate the charge against the applicant
had not supported the prosecution case.
5 The prosecution relied on evidence of P.W.4, P.W.5 and
P.W.6. P.W.4 was purportedly on duty and he had received
information that the appellant is selling kerosene at high price.
Panchas were called. Rs.50/- note as given to P.W.3. The accused
was selling kerosene infront of his house. According to him, P.W.3
rpa 5/8 1 appeal 295 1998.doc
purchased 5 liters of kerosene and he gave note of Rs.50/-.
Rs.25/- were returned to him. Rs.50/-, note was in possession of
accused. Panchanama was prepared. Accused was arrested.
Currency note was shown to him. However, it is not exhibited in
evidence, through him. In the cross-examination he stated that
the information was not noted down. The distance between the
shop and the house of the appellant is about one kilometer. He do
not know whether the accused gets kerosene for supplying it to
ration card holders. The house of the appellant is about 150 feet
away from the main road. They did not see the colour of the
kerosene. P.W.5 was a head constable. He deposed that
information was received that appellant is selling kerosene at
higher rate. He also deposed that raid was arranged. The raiding
party stood at some distance. The punter and the panch witnesses
proceeded further. Punter purchased kerosene and gave Rs.50/-
to accused. Kerosene was found stored. He lodged complaint.
Accused sold kerosene at Rs.5/- per liter although rate was
Rs.2.65 per liter. In the cross-examination, he deposed that
before raid he was knowing the accused, and that he sells
kerosene. He is required to sell kerosene to card holders. P.W. 6
was PSI. He reiterated the version of P.W.4 and P.W.5.
Panchanama was exhibited through him. The accused had licence
rpa 6/8 1 appeal 295 1998.doc
to sell kerosene or retain for domestic purpose. He produced
xerox copy of information about rate of kerosene published in
newspaper. He conducted investigation. Note of Rs.50/- was
shown to him. The note of Rs.50/-, allegedly recovered from
accused and Rs.25/-, returned to P.W.3 were not adduced in
evidence.
6 On analysing the evidence, it is apparent that the
prosecution case does not inspire confdence. The appellant
cannot be convicted for the said ofence on the basis of the nature
of evidence adduced by the prosecution. Charge was recorded
under Section 3(1)(2) and 7 of Essential Commodities Act. The
appellant was convicted for ofence punishable under Section 3(2)
(c) read with Section 7(1)(a)(11) of Essential Commodities Act.
There are no witness to indicate that the appellant was selling
kerosene to the card holders at higher price and/or to any other
members of public. On receipt of information, the prosecution has
arranged the punter P.W.3 and the entire case was based on his
evidence. He is the person who purchased kerosene at higher
price. P.W.4, P.W.5 and P.W.6 were standing at distance. Thus, the
prosecution case that higher price was demanded by accused for
sale of kerosene was depending upon conversation between
rpa 7/8 1 appeal 295 1998.doc
accused and P.W.3. The panch witnesses P.W.1 and P.W.2 has not
supported prosecution case. The accused cannot be convicted on
surmises. Beneft of doubt must be given to accused. P.W.6 has
stated that the accused has stated that the accused has licence to
sell kerosene. There is no other independent witness to show that
appellant was selling kerosene at higher rate to card holders.
Except news published in newspaper about rate of kerosene, no
oficial document about rate is adduced in evidence. The balance
amount allegedly returned to P.W.3 is not produced. Indepenent
witnesses P.W.1, P.W.2 and P.W.3 has not supported prosecution
case.
7 Learned APP submitted that the trial Court has
assigned reasons for convicting the appellant, although the
pancha witnesses and the punter were not supported the
prosecution. There is no reason to disbelieve the evidence of
P.W.4, P.W.5 and P.W.6. They were cross-examined and their
evidence could not be disturbed in any manner. However,
considering the nature of the evidence, and the fact that
independent evidence is lacking which was necessary in the facts
of the prosecution case, I am of the opinion that the prosecution
has failed to establish the charge beyond all reasonable doubt.
rpa 8/8 1 appeal 295 1998.doc
This Appeal must succeed.
8 Hence, I pass the following order:
:: O R D E R ::
(i) Criminal Appeal No.295 of 998, is allowed;
(ii) The judgment and order dated 9th January, 1998
passed in Special Case No.7 of 1992, is set
aside and the appellant is acquitted;
(iii) Criminal Appeal No.295 of 998, stands
disposed of accordingly.
(PRAKASH D. NAIK, J.)
