SHYAMSUNDAR BEHERA Vs. STATE

JUDGEMENT

(1.) THE Petitioner stands convicted under Section 47(a) and (f) of the Bihar and Orissa Excise Act and sentenced thereunder to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/ - and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month. The Petitioner, along with two others, who also stood trial with him but were acquitted by the trial Court, had allegedly been distilling liquor in a bushy area by the side of a river near village Thinkapada at about 1.00 a.m. on 13 -6 -1978 when the Excise officials (P.Ws. 1, 2 and 5) detected this in the presence of other persons including P.Ws. 3 and 4. The Trial Court held that the case against the Petitioner had been established and the Appellate Court accepted this finding.

(2.) I have heard the learned Counsel for both the sides. While the Excise Constable (P.W. 5) had made a vague and uncorroborated statement that the 'accused' was brewing liquor with other 'accused persons', P.Ws. 1 and 2 had not testified about it and P.Ws. 3 and 4 had not supported the prosecution cafe. No incriminating article had been recovered from the person or possession of the Petitioner and there was no definite and acceptable evidence that the Petitioner had been seen in the act of distilling liquor. All that had been established was that the Petitioner was found near a bout the spot and he ran away on seeing the Excise officials and was apprehended. There might arise some suspicion against the Petitioner for his presence at an unusual hour at that place and from his act of running away on seeing the Excise officials, but different persons react differently and when the finger of accusation is raised, even an innocent person may behave like a guilty one. Conduct which destroys the presumption of innocence of an accused person can alone be considered against him see Anant Chintarnan Lagu v. The State of Bombay : A.I.R (1960) S.C. 500. In the absence of clear and cogent evidence pointing to the guilt, no order of conviction can be based only on a piece of suspicious conduct on the part of an accused person. In my view, the order of conviction was unfounded and misconceived.