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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 526    OF 2011

(Arising out of SLP(Crl.) No.10302/2010)

DAYAL DAS           Appellant(s)

                    :VERSUS:

STATE OF RAJASTHAN         Respondent(s)

J U D G M E N T

DALVEER BHANDARI, J.

1. Delay condoned. Leave granted.

2. We  have  heard  the  learned  counsel  for  the  

parties at length.  

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.

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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 (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  

– 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.  

5. Bheru  Lal  became  unconscious  and  when  he  

regained 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

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Officer  registered  the  First  Information  Report  

(“FIR” for short) and started 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.  

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 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 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

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Court  in  the  impugned  judgment  has  upheld  the  

judgment of the Trial Court.    

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 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 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 what is 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

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shop of Dayal Das Sindhi.  

11. We have ourselves read the original statement  

of  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,  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 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  shop  of  Dayal  Das  Sindhi,  it  is  

difficult to sustain the conviction of the appellant  

under Section 304 Part-II of the IPC.

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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 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 erroneously read and  

comprehended the statement of Bheru Lal, PW-12 and  

unfortunately that has led to the conviction of 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 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

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and disposed of accordingly.  

17. The  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  all  concerned  

authorities forthwith for compliance of the order.  

18. Before parting with this case, we would like  

to place on record our appreciation for very able  

assistance  provided  to  us  by  the  learned  amicus  

curiae Mr. D.N. Goburdhan,Advocate.  

.....................J (DALVEER BHANDARI)

.....................J (DEEPAK VERMA)

New Delhi; February 22, 2011.