Orissa High Court
Deepak Chandra Tripathy vs State Of Orissa ....... Opposite Party on 20 June, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 07 of 2011
(In the matter of an applications under Sections 401 & 397 of the Criminal
Procedure Code, 1973)
Deepak Chandra Tripathy ....... Petitioner
-Versus-
State of Orissa ....... Opposite Party
For the Petitioner : Mr. T. Dhiren Kumar Dora
(Amicus Curiae)
For the Opp. Party : Mr. P.K. Maharaj,
Addl. Standing Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 17.05.2024 : Date of Judgment: 20.06.2024
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
14.12.2010 passed by the learned District & Sessions Judge, Kalahandi-
Nuapada, At- Bhawanipatna in Criminal Appeal No.13 of 2008, whereby
the judgment of conviction and order of sentence passed by the learned
J.M.F.C., Bhawanipatna in 2(a) C.C. No.257 of 2002 (T.R.
No.237/2007) has been confirmed.
2. The Petitioner was subjected to prosecution in 2(a) C.C. No.257 of
2002 (T.R. No.237/2007) registered under Section 47(a) of the Bihar &
Orissa Excise Act.
3. The prosecution case in brief is that on 05.04.2002 at about 4 P.M.
while the Inspector of Excise, Kesinga was performing patrolling duty
along with other official staff at village Muskuti, got reliable information
and proceeded to the godown of the present petitioner and recovered 25
quintals of Mohua flower. On demand the accused-petitioner could not
produce any authority for possession of the same. After observing due
formalities, later on, the Excise Department had submitted P.R. under
Section 47(a) of the Bihar and Orissa Excise Act against the present
petitioner.
After completion of investigation, complaint was filed against the
petitioner for the offence punishable under Section 47(a) of the Bihar
and Orissa Excise Act and he was put to trial.
Page 2 of 9
4. In order to substantiate its case, the prosecution had examined as
many as three witnesses and one document was exhibited. P.W.1 Biraja
Kishor Rout was an independent witness to the seizure, P.W.2 Inspector
of Excise, Kesinga and P.W.3 an Excise Constable. The plea of defence
was that of complete denial. In proof of the defence, no witness was
examined.
5. The learned trial Court analyzed the entire evidence on record and
found that the Petitioner was guilty for the offence under Section 47(a)
of the Bihar and Orissa Excise Act and sentenced him to undergo
custody for a period of six months S.I and to pay fine of Rs.3,000/-, in
default, to undergo S.I. for a period of three months more.
6. The judgment of conviction and order of sentence dated
10.03.2008 passed by the learned J.M.F.C., Bhawanipatna in 2(a) C.C.
No.257 of 2002 (T.R. No.237 of 2007) was called in question by filing
Criminal Appeal No.13 of 2008 before the Court of the learned District
& Sessions Judge, Kalahandi-Nuapada, At-Bhawanipatna, by the
petitioner. The learned appellate Court vide its judgment and order dated
14.12.2010 has dismissed the appeal inter alia stating as under-
Page 3 of 9
"6. It is not that the learned court below convicted
the appellant solely on the basis of his such admission and it
is apparent that the learned court below after discussing
every aspect of the case as per evidence believed the
prosecution case and convicted him of the offence as charged
against him. The order, as rightly urged by the learned P.P.
does not call for any interference and the sentence being very
liberal also does not require any modification. The order of
conviction and the imposition of the sentence as per the
impugned judgment of the learned court below being right in
all respect has to be and is hereby upheld. The appeal fails
and in the result, therefore, it is ordered that:-
The appeal is hereby dismissed on contest and
the impugned judgment dated 10.3.08 as passed by the
J.M.F.C., Bhawanipatna convicting the appellant of the
offence punishable U/s. 47(a) of the Bihar and Orissa Excise
Act and sentencing him thereunder and the order of
confiscation of the seized properties as passed thereunder is
hereby confirmed."
7. The petitioner has challenged the judgment/order of conviction
and sentence of both the Courts below in the present Revision Petition.
8. Heard Mr. T. Dhiren Kumar Dora, learned Amicus Curaie for the
petitioner and Mr. P.K Maharaj, learned Additional Standing Counsel 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.
Page 4 of 9
10. The prosecution case rests on the evidence of two witnesses, i.e.,
P.Ws.2 & 3. P.W.2 was the Excise Inspector whereas P.W.3 was the
Excise Constable. The prosecution had examined only three witnesses,
out of whom P.W.1 was one of the independent witnesses. However,
P.W.1 did not support the prosecution case. Therefore, on the strength of
the testimony of P.Ws.2 & 3, the prosecution attempted to prove its case.
Since there were contradictions in the evidence of these two witnesses,
the learned trial Court emphasized on the statement of the accused
recorded under Section 313 of Cr.P.C. to record the conviction. The
learned trial Court in its judgment had not assigned any reason to convict
the petitioner except to state that the petitioner had admitted of the
seizure of Mahua flower from his godown in his statement recorded
under Section 313 of Cr.P.C. The learned trial Court convicted the
petitioner for the offence punishable under Section 47(a) of Bihar and
Orissa Excise Act and sentenced him to undergo S.I. for a period of six
months and to pay a fine of Rs.3,000/-, in default, to undergo further S.I.
for a period of three months.
Page 5 of 9
11. The petitioner took up the matter to the appellate Court by filing
Criminal Appeal No.13 of 2008. The appellate Court also followed the
same reasoning to affirm the conviction and sentence recorded against
the petitioner. Paragraph-5 of the judgment of the appellate Court is
relevant which reads as under:
"5. Over and above the aforesaid evidence of the Excise Officials
(P.Ws.2 & 3) to the extent that 25 quintals of Mahua Flower were
seized from the possession of the appellant at this godown, which
has already discussed in his statement recorded under Section 313
of Cr.P.C. by the learned Court below. The submission of his
learned counsel that his statement was recorded in a most
perfunctory manner has no legs to stand and this Court finds that
his statement was recorded properly by the learned Court below
and it is apparent that he admitted in his reply to the questions
which were put to the him that he possessed the Mahua Flowers
and that he had documents to that effect. It appears that though he
filed certain documents in his deferene those were never proved
nor marked as exhibits at all nor the appellant adduced any
evidence to prove these documents. In the circumstances, therefore,
the said documents having not been brought in evidence at all
cannot be looked into and acted upon. Section 313(4) of Cr.P.C.
speaks that the answers given by the accused maybe taken into
consideration in such inquiry or trial and proved in evidence for or
against him in any other inquiry into or trial for any other offence
which such answers may tend to show that he committed the
offence. Here in this case, there is absolutely no reason to overlook
the aforesaid affirmative answers given by the appellant in his
statement u/s 313 Cr.P.C. On careful consideration, this Court is of
the opinion that the answer of the appellant in question can very
well be treated as the admission of his guilt to the effect that he
possessed 25 quintals of Mahua Flowers in his godown illegally."
Page 6 of 9
12. Mr. T. Dhiren Kumar Dora, learned Amicus Curiae appearing for
the petitioner submitted that the conviction of the petitioner on the basis
of his statement recorded under Section 313 of Cr.P.C. was not
sustainable under law. He further submitted that the onus was with the
prosecution to prove its case beyond reasonable doubt. The prosecution
had examined only three witnesses, out of whom P.W.1 was the sole
independent witness, who did not support the case of the petitioner.
P.Ws.2 & 3 were the Excise Inspector and Excise Constable
respectively. Hence, they obviously were the interested witnesses. There
was no other evidence adduced by the prosecution to draw corroboration.
Therefore, the prosecution had miserably failed to prove the case beyond
any reasonable doubt. In that view of the matter, the conviction recorded
by the Courts below against the petitioner for the offence under Section
47(a) of Bihar & Orissa Excise Act is not sustainable under law.
13. Mr. P.K. Maharaj, learned Additional Standing Counsel for the
State, however, opposed the contention raised by the learned Amicus
Curiae and submitted that this was a case of concurrent finding of facts
by two Courts. While exercising the revisional jurisdiction, this Court
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should not interfere in a concurrent finding and upset the conviction
recorded against the petitioner.
14. I have perused the entire record and carefully gone through the
evidence of P.Ws.2 & 3. Since the conviction is primarily based on the
statement of the accused recorded under Section 313 of Cr.P.C., I have
also carefully perused the same. It is apparent from the accused's
statement that the petitioner had never admitted that on 05.04.2002, he
had illegally possessed any Mahua Flowers, which was seized by P.W.2.
He had rather stated that he was being authorized on behalf of the
Government to collect the Mahua Flowers and to that effect he had also
produced certain documents. However, no efforts were made by both the
Courts below to ascertain the veracity of those documents produced by
the petitioner while making his statement under Section 313 of Cr.P.C.
The prosecution has also not adverted to those documents produced by
the petitioner. The Courts below have simply taken into account the
statement of the petitioner recorded under Section 313 of Cr.P.C. without
deference to the documents produced by him. The conviction can't stand
Page 8 of 9
on the legs of such weak evidence. The prosecution miserably failed to
prove its case against the petitioner.
15. Therefore, in my considered view the conviction and sentence
recorded against the petitioner by both the Courts below are contrary to
law and is devoid of merits. Accordingly the Revision Petition succeed
and the impugned judgment and order dated 14.12.2010 passed by the
learned District & Sessions Judge, Kalahandi-Nuapada, At-
Bhawanipatna in Criminal Appeal No.13 of 2008, and the judgment and
order dated 10.03.2008 passed by the learned J.M.F.C., Bhawanipatna in
2(a) C.C. No.257 of 2002 (T.R. No.237/2007) are set-aside.
16. The present Criminal Revision is allowed and disposed of.
.......................
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 20th June, 2024/ Amit
Location: HIGH COURT OF ORISSA, CUTTACK
