V. PRABHAKAR RAO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant stands convicted under Section 165 -A of the Indian Penal Code for having offered Rs. 20/ - in the shape of a currency note (Ext. 2) which more appropriately should have been marked as a material object by the Trial Court) on November 27, 1977, at the southern octroi check -gate of the Nowrangpur Municipality, by putting the amount in the pocket of Nabin Nayak (P.W. 1). then attached to the Office of the Civil Supplies section of the Sub -Divisional Office at Nowrangpur, who was on duty as Anti -Smuggling Guard at that check -gate and had detected the Appellant carrying 40 bags of rice in the truck bearing registration No. ORK 1653 being driven by another person with a third occupant in the truck, in order that P.W. 1 would not make any report regarding the transport of rice lest he (P.W. 1) might be held criminally liable for the movement of rice. The order of conviction has been recorded on the basis of the sole testimony of P.W. 1, unsupported by the evidence of Kamalalochan Majhi (P.W. 3), who was in charge of the Municipal octroi check -gate at the relevant time and had been examined as a witness to the occurrence and by Voona Satyanarayana (P.W. 5) owner of a tea stall near the octroi gate and which evidence, the learned Sessions Judge held to be sufficient to sustain the charge and discard the defence of the Appellant that he had not offered any money and that he had nothing to do with the transport of rice for which the Appellant had chosen to examine five witnesses including his elder brother (D.W. 1), the owner of the truck, to show that the rice was being transported by them as if he was facing a charge in respect of an offence punishable under the Essential Commodities Act for contravention of any Order with regard to the movement of the rice. The Appellant, then a student, being indicated of the offence, has been sentenced to undergo rigorous imprisonment for a period of three months.

(2.) TAKING me through the relevant evidence on which the prosecution sought reliance and which, according to the learned Judge, was sufficient to sustain the criminal charge, Mr. Rao for the Appellant has submitted that the evidence of P.W. 1 was not only inconsistent with itself, but had not also been supported by other evidence and could not form the basis of conviction. While it is true, as has been submitted before me by Mr. Das on behalf of the State, that the evidence in a criminal trial is to be weighed and not counted and the evidence of a solitary witness can form the basis of an order of conviction, it must be kept in mind that in order that the sale testimony of a witness is made the foundation and the basis for finding a person guilty of the charge, the evidence must be clear, cogent and consistent and should be of an unimpeachable character. For the reasons to fellow, it would be seen that the evidence of P.W. 1 was not of t ha t character In this witness stood self -condemned having made prevaricating and inconsistent statements in the First Information Report (Ext. 1) lodged by him, on the basis of which the investigation commenced and his evidence in the Court and further his evidence, which could be, had not been corroborated and in my view, the story presented by this witness was too unreal to be accepted and merely because the defence had not been able to say as to how and why a case had been instituted against the Petitioner or some witness had been deposing against him, which law does not require the defence to show, as has been observed in several reported cases including the case of Shankarlal Gyarasilal Dixit v. State of Maharashtra : A.I.R. 1981 S.C. 765 the case of the prosecution was not to be accepted as true and reliable.

(3.) WHILE there could be no doubt from the evidence that the Appellant was an occupant of the truck, there was no satisfactory evidence that he had been transporting the rice. While P.W. 1 had testified that when he stopped the truck at the check -gate and noticed the transport of 40 bags of rice therein and the Appellant failed to produce any permit or transit pass, the latter (Appellant) offered Rs. 2/ - to him and asked him to allow him to proceed with the rice, this statement about the offer of Rs. 2/ - at that stage was conspicuous by its absence in the First Information Report (Ext.1) and there could thus be no doubt that this evidence had been introduced at a later stage in order to bolster up the case of the prosecution and was the product of afterthought and deliberation.