Reserved on : 03.11.2020

Delivered on : 05.01.2021

Court No. - 65

Case :- CRIMINAL APPEAL No. - 5815 of 2019

Appellant :- Ashok

Respondent :- State of U.P.

Counsel for Appellant :- Kiran Kumar Arora,Mukesh Joshi

Counsel for Respondent :- G.A.

Hon'ble Umesh Kumar,J.

This appeal has been preferred against the judgment and

order dated 02.09.2019 passed by Additional Sessions Judge,

Court No.3, Moradabad in S.T. No. 112 of 2010 ( State Vs. Ashok ),

by which the appellant has been convicted and sentenced to

undergo ten years R.I. under Section 272 IPC with a fine of Rs.

25,000/- and under Sections 60/62 of U.P. Excise Act to undergo

two years R.I. with a fine of Rs. 5,000/- with default stipulations.

The prosecution case, in brief, is that one Surendra Singh

Pachori- S.I. posted at Police Station, Civil Lines, Moradabad

during checking, on the information given by police informer, raided

the place where on a furnace, one tin and a patili (pot) were seen

and there country made liquor ( kacchi ) was being prepared; that

two persons using force were arrested; that on interrogation, they

disclosed their names as Pawan @ Sonu and Ashok (the appellant

before this Court); that a recovery memo(Ex.Ka.1) was prepared in

which two plastic jarikain containing 8 litres kacchi liquor, one

furnace, one pipa and other apparatus for manufacturing country

made liquor (kacchi Sharab) were shown; during investigation, I.O.

prepared spot map (Ex.ka2), chick FIR (Ex.Ka.5), G.D. entry

(Ex.Ka.6) and send material for test report; that after completing

investigation, the I.O. submitted charge sheet (Ex.Ka.4); that

charges were framed against the appellants under Sections 272

IPC and 60/62 of Excise Act which was read over to the accused

who denied the charges and claimed to be tried. The prosecution

examined, S.I. Surendra Pachori as P.W.1, constable Dal Singh as

P.W.2 and retired Inspector Veerpal Singh as P.W.3. The appellant-

accused in his statement under Sections 313 Cr. P. C. denied the

incident and stated about false implication.

By the evidences adduced by the prosecution, P.W.1

Surendra Singh Pachori has proved the fact that on 20.2.2010 at

8.45 a.m., he recovered the illicit ‘kacchi sharab’ about 8 litres and

appliances, he has proved fard Ex.Ka.1, destroyed the ‘Lahan’ at

spot and obtained sample ‘namuna sharab’.

P.W.2 Dal Singh has also supported the prosecution version

and has proved Jarican Ex..1 and 2, patili Ex.3, container Ex.4,

plastic pipe Ex.5, bottle (plastic) Ex.6 and a bag of cement Ex.7.

This witness has proved fard Ex.Ka.1.

P.W.3 Veerpal Singh is the Investigating Officer of the case.

He has proved Ex.Ka.2, map Ex.Ka.3, letter to FSL, Agra and

Charge sheet Ex.Ka.4. This witness has also proved the chick FIR

Ex.Ka.5, Ex.Ka.6 G.D entry as secondary evidences.

Learned Trial Judge after taking into the prosecution

witnesses, has convicted and sentenced the appellant as

mentioned above. Aggrieved, the instant appeal.

I have heard learned Counsel for the appellants, learned

A.G.A. and perused the impugned judgment carefully.

Submission of learned Counsel for the appellants is that the

findings of learned Trial Judge are perverse and against the weight

of evidence available on record; that the punishment is too severe;

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that learned Trial Judge has no appreciated the discrepancies in

the statements of witnesses; that there is no independent

witnesses except police personnel; that no offence under section

272 IPC at all is made out against the appellants; that the learned

Trial Judge has no properly assessed the FSL report which speaks

about mixture of 5.4 percent of alcohol; that this report is vague

which only speaks of presence of urea, Ammonium chloride

(nausadar) and thus, it cannot be said to be report in the eye of

law bringing the appellant guilty for offence punishable under

Section 272 IPC.

Learned Counsel for the appell