State vs Smt. Dukhani Shah
2022 Latest Caselaw 1253 Chatt

                                                                                                 NAFR

                     HIGH COURT OF CHHATTISGARH, BILASPUR

                                 Acquittal Appeal No.5 of 2012

  State of Chhattisgarh through the Police Station Kotwali, District Raigarh,
  Chhattisgarh
                                                                                        ---- Appellant
                                                 versus
  Smt. Dukhani Shah, W/o Late Rajaram Shah, aged about 53 years, R/o
  Saraipali Uparpara, Kotwali, Raigarh, District Raigarh, Chhattisgarh
                                                                  --- Respondent

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For Appellant/State : Shri Anurag Verma, Panel Lawyer For Respondent : Shri Ashish Gupta, Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

Judgment on Board 10.3.2022

1. This is an admitted appeal. It is heard finally.

2. This appeal has been preferred by the State against the judgment

and order of acquittal dated 13.11.2009 passed by the Chief

Judicial Magistrate, Raigarh in Criminal Case No.1205 of 2006,

whereby the Learned Chief Judicial Magistrate has acquitted the

Respondent/accused of the charge under Section 34(1)(a) of the

Chhattisgarh Excise Act.

3. Learned Counsel appearing for the Appellant/State submits that the

Trial Court has acquitted the Respondent/accused giving benefit of

doubt on the ground that the case is pending since 2006 and much

opportunity has already been given to the prosecution for

examination of their witnesses, but, the fact is that not a single

prosecution witness could be examined. Learned Counsel further

submits that though on some occasions summons were issued, the

Trial Court did not try to find out whether service of those summons

on the witnesses were effected or not. The Trial Court has not

made any serious effort for securing appearance of prosecution

witnesses before it. Therefore, the acquittal is not proper on the

ground of non-examination of any of the prosecution witnesses.

4. Supporting the impugned judgment of the Trial Court, Learned

Counsel appearing for the Respondent/accused submits that since

sufficient opportunity has already been afforded to the prosecution

by the Trial Court for production of their witnesses, the Trial Court

has rightly acquitted the Respondent/accused on failure of

examination of prosecution witnesses.

5. I have heard Learned Counsel appearing for the parties and

perused the material available on record of the Trial Court minutely.

6. From perusal of the record of the Trial Court, it appears that the

particulars of the offence was made on 20.2.2007. Thereafter, the

Trial Court fixed the case for prosecution evidence on 12 occasions

and according to the relevant order-sheets issuance of summons

was directed, but, actually, only on 3 occasions, summons were

issued to the witnesses. On any of the 3 occasions, the Trial Court

did not bother to find out whether service of those summons were

effected or not nor did it issue any other process like bailable

warrant for appearance of the witnesses. Suddenly, on

13.11.2009, the Trial Court closed the prosecution evidence and

acquitted the Respondent/accused.

7. Since the Trial Court did not make serious efforts for securing

appearance of the witnesses before it, the matter is remitted back

to it for affording reasonable opportunity to the prosecution for

production of witnesses. As the matter is pending since 2006, the

Trial Court is also directed to decide the matter as early as possible

preferably within a period of six months from the date of receipt of a

copy of this judgment. Record of the Trial Court be sent back along

with a copy of this judgment immediately.

8. With the aforesaid directions, the acquittal appeal is disposed of.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal