The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 32 of 2011 (In the matter of an application under Sections 401 of the Criminal Procedure Code, 1973) Lingaraj Mohanty ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. A.R. Panda, Advocate For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate CORAM:
Legal Reasoning
It is well settled that acceptance of official witnesses is a rule of prudence as there is no bar for conviction of the accused if the evidence of official witnesses are impeccable and trustworthy. There is a clear finding of the Courts below that the evidence of P.Ws.1, 3 and 4 are impeccable and trustworthy and there is no reason to doubt the same. I am in complete agreement with the judgment of the Courts below. 14. Therefore, I am not inclined to interfere with the conviction recorded by the Courts below. 15. Insofar as the quantum of sentence is concerned, the Appellate Court has already taken a lenient view. Accordingly, no interference is called for. However, Mr. Panda, learned counsel for the petitioner Page 6 of 8 submitted that the petitioner is indeed entitled to the benefit of the P.O. Act as the incident took place way back in 1998 and much water has flown under the bridge by now. 16. During the hearing of the sentence before the Court below the petitioner had also prayed for grant of the benefit of P.O. Act, 1958 which was turned down. The order of sentence passed by the Court below reads as under: “Considering the nature of the offence and its impact on the society, it is found that the possession and selling of liquor in a society is a social offence. It will create vicious circle in the society and will provoke to commit offences under the influence of the liquor, so considering the nature and gravity of the offence and its impact on the person in the society, I am not in favour of giving the benefit of the P.O. Act, 1958 or benefit of 360 Cr.P.C. to the convict in the present case. Hence, the convict is sentenced to undergo rigorous imprisonment of one year with fine of Rupees 1000/-(one thousand only) for the commission of offence 47(a) of Bihar and Orissa excise act, in default of payment of fine the convict will undergo rigorous to his imprisonment of substantial sentence of imprisonment. The seized article seizure list Ext.1/1 be destroyed after three months of the appeal period if appeal is not preferred.” three months in addition 17. I am of the considered view that the petitioner is entitled for the benefit of Probation of Offenders Act as he can derive the benefit from Page 7 of 8 the ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp- II) OLR 469. 18. Accordingly, this Court directs that the petitioner be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. 19. The Criminal Revision is accordingly allowed. ………………….. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Jul-2024 17:08:10 Page 8 of 8
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 20.06.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Sections 401 r/w section 397 of Cr.P.C. is directed against the judgment and order dated 21.08.2008 passed by the learned Sessions Judge, Phulbani in Criminal Appeal No.22 of 2002, whereby the judgment of conviction passed by the learned J.M.F.C., G. Udayagiri in U.C. No.40/1999 (Trial No.61/1999) has been confirmed and order of sentence has been modified. 2. The Petitioner was subjected to prosecution in U.C. No.40/1999 (Trial No.61/1999) registered under Section 47(a) of the Bihar & Orissa Excise Act. 3. The prosecution case in brief is that on 21.02.2008, the then O.I.C., Tikabali P.S. along with his staff while performing patrolling duty in Tikabali area detected the accused-petitioner selling I.D. liquor at the outer verandah of his house. On search, he found the plastic jerry cane possessed by the accused contained 20 litres of I.D. liquor. On the demand of O.I.C., the accused failed to show any license or permit for such possession and sale of I.D. liquor. So, the Police Officer seized the plastic jerrycane with the liquor, collected some sample from the liquor in a glass bottle, sealed the same on the spot, arrested the accused and released him on bail and had sent the sample bottle to D.F.S.L., Phulbani for chemical examination where the contents of the sample bottle were chemically analyzed and found to be I.D. liquor. The Police Officer, therefore, submitted P.R. under Section 47 (a) of the Bihar and Orissa Excise Act against the present petitioner to stand the trial. Page 2 of 8 4. In order to substantiate the case, the prosecution had examined as many as four witnesses and four documents were exhibited. P.W.3 Laxman Mahakud was the then O.I.C. of Tikabali P.S. P.W.1 Sunil Kanta Dash was the A.S.I. of Police who was one of the raiding party members. P.W.2 Suraj Konhar was one of the independent witnesses to the seizure. P.W.4 was the Scientific Officer who had conducted the chemical test of the contents of the sample bottle. The plea of the defence was one of clean denial and false implication. The defence had examined one witness on its behalf. 5. The learned Trial Court analyzed the entire evidence on record and found that the Petitioner guilty of the offence under Section 47(a) of the Bihar and Orissa Excise Act and sentenced him to undergo rigorous imprisonment of one year with fine of Rs.1,000/- (Rupees one thousand) for the commission of offence. In default of payment of fine, the convict will have to undergo rigorous imprisonment of three months. 6. The judgment of conviction and order of sentence dated 21.05.2002 passed by the learned J.M.F.C., G. Udaygiri in U.C. No.40/1999 (Trial No.61 of 1999) was called in question by filing Page 3 of 8 Criminal Appeal No.22 of 2002 before the Court of the learned Sessions Judge, Phulbani by the petitioner. 7. Having failed in his appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8. Heard Mr. A.R. Panda, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and carefully evaluated the evidence on record. 10. Mr. Panda, learned counsel for the petitioner vehemently argued that the conviction recorded by the Courts below is on the strength of very weak evidence and on the basis of the testimony of the official witnesses only. One of the independent witnesses, i.e., P.W.2 has completely disowned the prosecution story. The said witness is a vital witness being the seizure witness. Except P.W.2, all other witnesses were police witnesses. Therefore, in the absence of any independent witnesses maintaining the conviction against the petitioner is not safe. Page 4 of 8 11. It is a fact that the conviction is solely based upon the evidence of P.Ws.1 & 3. P.W.1 was the A.S.I. of Police, who had accompanied the raiding party whereas P.W.3 was the O.I.C., of Tikabali Police Station. The testimony of P.Ws.1 & 3 corroborated with the testimony of P.W.4, the Scientific Officer, who conducted the chemical test of the contents of samples collected in the bottle. It is also the admitted fact that only the independent witness, i.e., P.W.2, who was the seizure witness, has not at all supported the prosecution case. The Court below has carefully taken the aforementioned assertion of the defence and while analyzing the same has observed as under: “7. On perusal of the evidence it appears that the independent witness to the alleged seizure namely P.W.2 has completely disowned his knowledge regarding the accused selling liquor and the seizure of the intoxicant from his possession. Often it is noticed that in all most all cases of this nature the so called independent witnesses being mostly the co-villagers or persons of nearby village of the accused cross the table. The village brother-hood plays the magic. P.W.2 is the person of the locality of the accused and possibility of his perjuring evidence cannot be ruled out. The so-called independent witness had admitted his signature in the seizure list. He has not stated as to how his signature appeared in the seizure list. The witness since had lent his signature in English shows that he is an educated persona and there is no material to suggest that his signature was forcefully obtained by the police. The presence of the signature of this witness in the seizure list confirms the presence at the spot and also the Page 5 of 8 factum of seizure. In such backdrop, much importance to the denial evidence of this witness is rightly not attached by the learned Court below.” 12. Having taken into consideration the evidence on record and weighing the judgment on the basis of those evidence, I have no doubt in my mind that the conviction recorded by the Courts below cannot be doubted merely because the sole independent witness has not supported the case of the prosecution. 13.