PADMANABHA SAHU AND ANR. Vs. THE STATE

JUDGEMENT

(1.) THIS is a petition, in revision, against the conviction of the two Petitioners under Section 47(a) of the Bihar and Orissa Excise Act read with Section 109 Indian Penal Code, and the sentence of fine of Rs. 50/ - passed on them by a First Class Magistrate of Angul. At the time of the admission of this petition, a notice was issued to the Petitioners to show cause why the sentence may not be enhanced and they were permitted to argue against their conviction also.

(2.) THE two Petitioners along with one Naba Mukhi were placed on trial before the aforesaid Magistrate. Naba Mukhi who is said to be a rickshaw puller of Angul town was found at 3. a.m. on 11 -5 -58 with his rickshaw containing two kerosene tins filled with liquor. He stated both before the Police and also in his examination under Section 342 Code of Criminal Procedure that he was engaged by Petitioner Murali Sahu to carry the said tins and that he obtained the tins from the house of the Petitioner Padmanabh Sahu. Even if this statement of Naba be held to amount to a confession of guilt it can be taken into consideration against the two Petitioner only under the provisions of Section 30 of the Evidence Act. The true scope of this section has been explained by the Supreme Court in : A.I.R 1952 S.C. 159 and : A.I.R 1956 S.C. 56. There it was pointed out that the confession of a co -accused is no evidence at all within the meaning of the Evidence Act and no conviction can be based thereon. But if there is other evidence on which a conviction can be based such confession may be referred to as lending assurance to that conclusion and fortifying it.

(3.) SO far as Petitioner Murali is concerned the learned Standing Counsel relied on the evidence of another rickshaw puller of Angul named Tihulu Mukhi (p.w. 4) who stated that at about 7 -30 p.m. on 10 -5 -1958 he saw Petitioner Murali engaging Naba's rickshaw on hire. Even if this statement of p.w. 4 be believed would not necessarily show that the Petitioner Murali engaged Naba's rickshaw on hire for carrying the liquor tins. There was a sufficiently long interval between the time when Naba's rickshaw was engaged by Murali on 10 -5 -1958 and the time when the two tins containing liquor were seized from Naba's possession at 3 p.m. on 11 -5 -1958, so as to lead to an inference that Naba might have been engaged by another person, later on, to carry the liquor and that the purpose for which the rickshaw was hired by Petitioner Murali at 7 -30 p.m. on 10 -5 -1958 was different from the purpose for which it might have been engaged later. Thus, on the testimony of p.w. alone it will not be safe to hold the Petitioner Murali guilty of the offence under Section 47(a) of the Bihar & Orissa Excise. Act.