STATE OF ORISSA Vs. PRAHALLAD RATH

JUDGEMENT

(1.) This Government appeal is directed against an order of acquittal recorded by the learned Judicial Magistrate, First Class, Khurda in Case No. 2(c) C. C. 54/85 (T. R. Case No. 163 of 1988) acquitting the respondents from charge under Section 3(a) of the Railway Property (Unlawful Possession) Act.

(2.) The case of the prosecution is that on 12-6-1985, P. Ws. 1 and 4 were escorting 215 of Up Bhubaneswar-Palasa passenger train from Khurda Road to Palasa. On their way, they received information that the staff on duty of generator coach in the said train were preparing to sell high speed diesel oil from the generator coach at Nirakarpur Station. The further case of the prosecution is that when the train arrived at Nirakarpur Railway Station, an outsider entered into the generator coach from the off side of the train and got down with a heavy bag on his shoulder. On suspicion, both the R. P. F. staff chased the outsider and caught him red handed. On interrogation, the said person disclosed his name to be Dhaneswar Behera, one of the accused and also confessed that he got the high speed diesel oil from the generator coach of the said train with the help of the other two accused persons on payment of Rs. 80/- as bribe. On verification, it was found that the gunny bag contained 35 Itrs. of high speed diesel oil in a black plastic jar. When the train started moving towards Nirakarpur Station, P. W. 1 left the accused Dhaneswar along with P. W. 4 at Nirakarpur Railway Station and proceeded in the train to ascertain the address of the other two accused persons, who were in the generator coach. After ascertaining the names and addresses of the two accused persons, he got down at Balugaon and on the next date gave a report in the police station. On the basis of the report, investigation was started and the high-speed diesel was seized. The accused Dhaneswar was examined and his confessional statement was recorded and on completion of investigation, he submitted the prosecution report against the accused person for commission of offence as stated above. The defence plea is one of the complete denial of the occurrence. The prosecution examined seven witnesses in order to bring home the charge and defence examined one witness. The trial Court on consideration of the evidence available on record, held that non-recording of confessional statement by the Investigating Officer shows that the said accused persons had never confessed. The Court also held that even accepting the case of the prosecution that one of the accused confessed, his confessional statement cannot be used against the other two co-accused persons. On analysis of the evidence, the learned Magistrate also found that there was no evidence of physical possession of the high speed diesel oil by the accused persons and the bag containing the said seized high speed diesel oil was not sealed. Apart from above, the trial Court also found that independent witnesses, though available were not examined in the case. On the above findings, the learned Magistrate passed an order of acquittal.

(3.) The learned Standing Counsel challenging the impugned judgment submitted that ordinarily in such type of cases, independent witnesses are not available and, therefore, the Court can rely on evidence of official witnesses. The learned counsel for the State further submitted that the high speed diesel oil was seized from the accused Dhaneswar when he was carrying the same and he confessed to have got it from two co- accused persons on payment of Rs. 80/- as bribe. On the face of such evidence available on record, according to the learned counsel for the State, an order of acquittal is not called for. It was also submitted that the officer of Railway Protection Force not being a Police Officer, the confession made before the R. P. F. Officer is required to be taken into consideration as a piece of evidence. The learned counsel appearing for the accused-respondents, on the other hand, submitted that though it is alleged that the accused Dhaneswar confessed before P.Ws. 1 and 4 to have purchased the high speed diesel oil from two co-accused persons, such confessional statement was never recorded. In view of the above, merely on the statement of the witnesses, the trial Court was justified in holding that in absence of recorded confessional statement, it is difficult to arrive at a conclusion as to whether there is any confession at all or not. Apart from above, the learned counsel appearing for the respondents also submitted that the alleged bag containing high speed diesel oil was not sealed and the sample alleged to have been collected from the said bag for the purpose of examination is doubtful. The learned counsel also submitted that though independent witnesses were available, none was examined in course of trial and it is unsafe to convict an accused on the basis of evidence of official witnesses only.