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Orissa High Court · body

2008 DIGILAW 293 (ORI)

Krishna Chandra Mohanty v. State of Orissa

2008-04-08

B.K.PATEL

body2008
JUDGMENT B.K. PATEL, J. — The petitioner’s appeal having been dismissed by the learned Sessions Judge, Sundargarh, this revi¬sion has been preferred challenging the judgment and order passed by the learned S.D.J.M., Sundargarh convicting the petitioner under Section 47(a) of the Bihar and Orissa Excise Act (for short ‘the Act’) and sentencing him to undergo R.I. for six months and to pay a fine of Rs.500/-, i.e., R.I. for one month. 2. The prosecution was lodged against the petitioner on the allegation that on 5.10.1992 at about 6.15 P.M. S.I. of Excise P.W.3 along with his staff including Constable of Excise P.W.1 in presence of independent witnesses including P.W.2 searched the petitioner’s house and recovered one plastic jerry¬cane containing 5 litres of C.S. liquor. P.W.3 tested the liquor by means of blue litmus paper and hydrometre and ascertained that the jerrycane contained C.S. liquor upon which seizure list Ext.1 was prepared. Petitioner took the plea of complete denial of the prosecu¬tion case. Prosecution examined the three witnesses P.Ws. 1, 2 and 3 only referred to above. However, P.W.1 appears to have not sup¬ported the prosecution. Nonetheless on the basis of the evidence of P.Ws.1 and 3, learned Courts below held the allegation made against the petitioner to have been established. 3. Learned counsel for the petitioner contends that as the only independent witnesses examined by the prosecution did not support the prosecution case, the learned Courts below could not have recorded an order of conviction solely on the basis of the evidence of two official witnesses. It is further contended that evidence adduced by the prosecution regarding subjecting seized liquid to test does not conclusively indicate that intoxicant was seized from the petitioner. It is also argued that there is no evidence that C.S. liquor was seized from exclusive and conscious possession of the petitioner. 4. Learned counsel appearing for the State submits that as the learned Courts below found the evidence of the two official witnesses trustworthy, the concurrent findings on the basis of their evidence are immune from interference. 5. Admittedly, the independent witness P.W.2 deposes that he does not know the accused and about the case. 4. Learned counsel appearing for the State submits that as the learned Courts below found the evidence of the two official witnesses trustworthy, the concurrent findings on the basis of their evidence are immune from interference. 5. Admittedly, the independent witness P.W.2 deposes that he does not know the accused and about the case. However, it is well settled that if the evidence of official witnesses is not that of interested witnesses, that is to say, if they do not have inimical relationship with the accused and their evidence is cogent, consistent and credible, such evidence can be relied upon even in the absence of independent corroboration or even if the independent seizure witnesses turn hostile to the prosecution. Therefore, in the present case, even if P.W.2 is of no help to the prosecution, in the absence of any rule of evidence or pru¬dence to the contrary, there is no hindrance to base an order of conviction on the basis of the evidence of the two official wit¬nesses subject to their evidence being found to be cogent, con¬sistent and credible. P.W.3 deposes that while performing patrol¬ling duty, on information he searched the house of the accused and recovered a plastic jerrycane containing 5 litres of C.S. liquor which he subjected to blue litmus paper and hydrometre tests. P.W.1 does not depose regarding receipt of information by P.W.3 P.W.1 also does not support P.W. 3 with regard to subject¬ing the seized liquor to hydrometre test. P.W. 1 simply says that P.W.3 tested the liquor by blue litmus paper. P.W.1 says that he does not remember the number of rooms the house of the petitioner comprises of. Prosecution has not led any evidence to show that the petitioner’s house was in his exclusive possession. It does not appear that the allegedly seized jerrycane containing C.S. liquor was produced in Court. Nor the chart prepared upon hy¬drometre test or the litmus paper used by P.W.3 appears to have been produced in Court. In spite of such infirmities, the find¬ings of the learned Courts below are based solely on the basis of bald allegation of the official witnesses P.Ws.1 and 3 that 5 litres of C.S. liquor was seized from the petitioner’s house. In spite of such infirmities, the find¬ings of the learned Courts below are based solely on the basis of bald allegation of the official witnesses P.Ws.1 and 3 that 5 litres of C.S. liquor was seized from the petitioner’s house. Neither of the learned Courts below is found to have considered the above referred circumstances which render the evidence of P.Ws.1 and 3 incapable of being accepted as cogent, consistent and credible. 6. In view of the above discussion, it is found that prosecution has failed to prove the allegation made against the petitioner so as to hold the petitioner guilty for commission of offence under Section 47 (a) of the Act. Therefore, the revision is allowed and the order of conviction and sentence passed against the petitioner is set aside. Revision allowed.