Orissa High Court
Raj Kishore Lenka vs Republic Of India on 18 February, 2014
Author: B.K. Patel
Bench: B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
CRA No.123 of 2000
From the judgment and order dated 30.05.2000 passed by Sri
A.K.Prichha, Special Judge (CBI), Bhubaneswar in T.R. Case No.118/83
of 99/96.
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Raj Kishore Lenka ...... Appellant.
- Versus-
Republic of India ...... Respondent.
For Appellant : M/s S.K.Mund, D.P.Das
and J.K.Panda
For Respondent : Mr.S.Mohanty
Mr.V.Narsingh (for C.B.I.)
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PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
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Date of judgment: 18.02.2014
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B.K. PATEL, J.By the impugned judgment dated 30.05.2000 passed by learned Special Judge (CBI), Bhubaneswr in T.R. Case No. 118/83 of 99/96, appellant having been found guilty of offences punishable under Section 7 and Section 13 (1)(d) of the Prevention of Corruption Act (for short 'the P.C.Act'), has been sentenced to undergo R.I. for a period of 2 one year and also to pay fine of Rs.500/- only on each count, in default to undergo R.I. for a further period of three months.
2. Prosecution case is as follows:
The informant-decoy P.W.2 had a tea and tiffin stall near Puri Railway Station. Consequent upon removal of P.W.2's stall by the district administration in view of celebration of ensuing Nabakalebar Ratha Yatra Festival of Lord Jagannath in the year 1996, P.W. 2 started his tea and tiffin stall near Zilla School, Puri. As business in that area was not good, P.W.2 desired to re-install his stall near the Railway Station. The appellant, who was working as a Sub-Inspector of Police, Railway Protection Force (S.I., RPF) Post, Puri Railway Station took breakfast in P.W.2's shop on 16.7.1996 at about 8 A.M. and told that in case P.W.2 wanted to install the tiffin stall near Puri Railway Station, he should come to him in the evening on 22.7.1996 and pay Rs.500/-. Confronted with such demand, P.W.2 lodged F.I.R. Ext.2 on 22.7.1996. Inspector of C.B.I., Bhubaneswar P.W. 5 being entrusted with the investigation, registered the case. P.W.5 procured the presence of independent witnesses P.Ws. 3 and 4 as well as some officers of the C.B.I., and in their presence read over the F.I.R. P.W.2 confirmed the genuineness of allegations contained in the F.I.R. before them. Thereafter, P.W. 2 demonstrated the change of colour of phenolphthalein 3 powder on coming in contact with sodium carbonate solution. On production of four hundred rupees and two fifty rupees currency notes by P.W.2 to be used in the trap, the currency notes were smeared with Phenolphthalein powder and handed over to P.W. 2. P.W. 2 kept the same in the shirt pocket. P.W. 2 was instructed to give signal to the raiding party by scratching his head with his finger. P.W. 3 was instructed to accompany and follow P.W.2 at a reasonable distance in an obstrutive manner so that he could overhear the conversation between P.W. 2 and appellant, and see the transaction. After preparation of pre- trap memorandum Ext. 3, P.W. 5 along with independent witnesses and C.B.I. officials proceeded to Puri. P.Ws. 2 and 4 went to the R.P.F. Office and others took their position nearby. P.Ws. 2 and 4 came back after sometime and informed that `the appellant would return from Khurda in the evening. Raiding party waited in Puri. At about 8.20 P.M., appellant was found coming towards the RPF Office from the Railway Station. P.W. 2 approached and wished him and thereafter followed the appellant to the RPF Office. At about 8.30 P.M. P.W. 2 came out and gave the agreed signal. On getting the signal, P.W. 2 along with C.B.I. officials and independent witnesses rushed into the RPF Office and challenged the appellant to have accepted bribe of Rs.500/- from P.W. 2. Appellant became nervous and directed the RPF personnel to interfere. Finding the 4 situation tense, appellant was taken by the C.B.I. Officials to Puri Town Police Station where they searched the person of the appellant and recovered the tainted currency notes. P.W. 5 seized the currency notes under seizure list Ext. 4. Being compared, the numbers of seized currency notes tallied with numbers noted in the pre-trap memorandum Ext. 3. Appellant's palm and fingers being washed with sodium carbonate solution, solution became pink in colour. After observing the formalities, P.W.5 prepared post-trap memorandum Ext. 5. On completion of investigation, after obtaining sanction order of prosecution of the appellant from P.W. 1, I.G. RPF, charge sheet was submitted against the appellant.
3. Appellant took the plea of denial of the allegation of demand or receipt of bribe. His specific case is that on 16.7.1996 while he was taking breakfast in P.W.2's tea and tiffin stall near Zilla School, Puri, he accidentally dropped one five hundred rupee currency note. Later, in the evening on that day he requested P.W. 2 to search for the currency note and to return it to him if the same was found with any of his staff. It is pleaded that informant after finding that one of his staff had got the lost currency note and spent the money, came to return the amount to the appellant on 22.7.1996 which amount was seized by the C.B.I. personnel. It is further pleaded by the appellant that one Sima Joseph, 5 an anti-social element of Puri who was inimical to him because the appellant took legal actions against him on several occasions, instigated P.W.2 to institute false case against him.
4. In order to establish the charge, prosecution examined the five witnesses, P.Ws. 1 to 5 referred to in course of narration of the prosecution case. Prosecution also relied upon documents marked Exts. 1 to 7 and material exhibits M.O.I to M.O.XIII.
One witness D.W. 1 was examined on behalf of the appellant and documents marked Exts. A to D were relied upon by the appellant.
5. Learned Special Judge placing reliance mainly on the evidence of informant P.W.2, stated to have been corroborated by evidence of other witnesses and circumstances, held the prosecution to have established the charge.
6. In assailing the impugned judgment it was submitted by the learned counsel for the appellant that in the present case, it is not disputed that the appellant accepted Rs.500/- from the informant-P.W.2. However, prosecution has utterly failed to establish that there was any demand or acceptance of bribe. In view of the nature of evidence available on record, the trial court should have accepted the defence case that informant P.W.2 paid to the appellant money which the appellant had accidentally dropped in his shop. Placing reliance on the decisions of 6 the Hon'ble Apex Court in State of Kerala and another -vrs.- C.P. Rao : (2011) 6 SCC 450 and of this Court in Debananda Das -vrs.- State of Orissa: 2011(II) OLR 603, it was argued that in a trap case, the evidence of decoy has to satisfy double test of being reliable or trustworthy, and being sufficiently corroborated. It was contended that there is no evidence on record with regard to demand or acceptance of bribe except the evidence of decoy P.W.2 which is neither trustworthy nor corroborated. Learned counsel for the appellant elaborately took this Court through the evidence of P.W.2 and other witnesses to urge that the evidence of P.W.2 is not only contradicted by other witnesses but also is self-contradictory. His evidence is also contradictory to his earlier statement made in the F.I.R. and police statement. Prosecution has failed to adduce any evidence to substantiate the alleged demand of bribe in P.W.2's shop on 16.7.1996 though according to P.W.2 himself such demand was made in presence of other customers. Conduct of P.W.2 in not accompanying the raiding party and the appellant to the Town Police Station after the alleged trap being highly suspicious, no credence can be attached to the evidence of P.W.2 in view of decision of this Court in Panchanan Rout -vrs.- State of Orissa : (1991) 4 OCR 53. Considering the nature of evidence, the learned trial court ought to have held that P.W.2 is not only unreliable but also is a liar. P.W.2 having falsely stated 7 at paragraph-11 of his cross-examination that he did not know Sima Joseph, was constrained to admit in course of cross-examination that it was said Sima Joseph who asked him and rendered assistance in lodging the F.I.R. Sima Joseph accompanied him to the C.B.I. office at Bhubaneswar. Such attempt on the part of P.W.2 to suppress the involvement of Sima Joseph in engineering the case against the appellant substantially probabilises the defence case that said Sima Joseph instigated P.W.2 to falsely implicate the appellant. In this connection, it was further argued that Exts. A to D, more particularly Ext.D, certified copy of the writ petition in O.J.C. No.10013 of 1996 contains candid admission on the part of Sima Joseph that he had long standing inimical relationship with the appellant. The writ petition also reveals that Sima Joseph is a wealthy person. Circumstance of such a person accompanying P.W.2, a tea stall owner, to Bhubaneswar in order to foist case against the appellant should not have been lost sight by the trial court. It was further argued that admittedly the appellant had no authority to allot shop room to any person in the railway premises or railway station. Placing reliance on the decision of the Hon'ble Apex Court in State of Kerala and another -vrs.- C.P. Rao (supra) it was argued that this vital circumstance has not been taken note of by the learned Special Judge (CBI), Bhubaneswar in rejecting the defence case 8 of demand for the said purpose to have been made by the appellant. Learned counsel for the appellant also submitted that it is evident from pre-trap memorandum Ext.3 that it was P.W.3 to whom investigating officer P.W.5 directed to be the overhearing or shadow witness. However, P.W.3 bluntly denied to have been given any such instruction by the investigating officer. On the contrary, prosecution made an attempt in court to project P.W.4 as the shadow witness. Discrepancy with regard to identity of overhearing or shadow witness also makes the prosecution case vulnerable. In this connection, learned counsel for the appellant places reliance on the decision of this Court in Debananda Das -vrs.- State of Orissa (supra). It was further argued that the prosecution having failed to discharge burden of establishing demand and acceptance of bribe, there is no scope for drawing presumption under Section 20 of the P.C. Act as regards commission of offence under Section 7 of the P.C. Act. Moreover, not only the defence evidence, oral as well as documentary, but also prosecution evidence itself probabilises the defence case of false implication at the instance of Sima Joseph. Placing reliance on a number of decisions of the Hon'ble Apex Court and of this Court it was argued that mere acceptance of money divorced from the circumstances under which it is paid is not sufficient to sustain conviction under the P.C. Act. 9
7. Learned counsel for the C.B.I., in reply, supported and defended the impugned judgment. It was argued that in case a decoy is found to be trustworthy witness, in order to sustain conviction under P.C. Act, his evidence does not require corroboration. It was contended that in spite of certain contradictions as pointed out by the learned counsel for the appellant, evidence of P.W. 2 is free from blemishes. According to learned counsel for the C.B.I. P.W. 2 being a reliable witness the trial court has rightly accepted his evidence. It was further argued that the Special Judge has rightly refused to accept the defence case on the basis of Exts. A to D as all the documents relate to period subsequent to the date of trap. Exts. A, B and C are certified copies of order sheet, FIR, and Final Report in G.R. Case No. 1113 of 96 instituted and Ext. D is a copy of the writ petition in OJC No. 10013 of 96 filed after the trap. In view of the nature of evidence of P.W. 2, the trial court rightly proceeded to draw presumption under Section 20 of the P.C. Act. It was further argued that both P.Ws. 3 and 4 corroborate testimony of P.W. 2 inasmuch as both of them testify that in their presence P.W. 2 confirmed the genuineness of the contents of the FIR before the trap in the C.B.I. Office. It was also argued that appellant cannot avail any benefit out of the conduct of P.W. 2 in not accompanying the raiding party to the Town Police Station after the trap in view of situation which 10 arose due to intervention of RPF personnel. It was strenuously contended that there is no scope to interfere with the impugned judgment. Learned counsel for the C.B.I. cited decisions of the Hon'ble Supreme Court laying down and reiterating settled principles of law.
8. Acceptance of Rs.500/- by the appellant is not disputed. Defence case is that appellant never demanded any illegal gratification or bribe. Therefore, it is incumbent upon the prosecution to establish that appellant demanded Rs.500/- from P.W. 2 in order to enable him to run a tea and tiffin stall within railway station premises.
9. It is not disputed that the appellant had no authority to allow running of shop in railway premises in Puri. It has been elicited from the mouth of P.W.1 the sanctioning officer in course of cross- examination that the Sub-Inspector of R.P.F. is not authorized to grant permit to open shops on railway lands. No doubt the expression "a motive or reward" for doing or forbearing to do any act as enumerate under Section 7 of the P.C. Act by a public servant includes within the scope a motive or reward for doing what a person does not intend or is not in a position to do, however, in the present case, it is to be borne in mind that it is not within the purview of official work of RPF personnel to allot premises to a person for running shop in railway premises. While appreciating the allegations against the respondent in State of Kerala 11 and another -vrs.- C.P. Rao (supra), the Hon'ble Supreme Court took note of such circumstance before appreciating the evidence on record and observed as follows :
"5. The prosecution case is that the demand of illegal gratification of Rs.5000 was made by the respondent from CW 1 on 19-10-1994 for the purpose of giving pass marks to all the students who appeared in the practical examination of Pharmaceutical II in D-Pharma final examination in the year 1994. It is an admitted case that the respondent alone cannot give such marks. In view of the examination system prevailing such marks have to be approved by others. The respondent alone, therefore, is admittedly not in a position to allot higher marks."
Therefore, in the present case also the admitted fact that the appellant was not in a position to allot premises to run shop in the railway premises has to be kept in mind in appreciating the evidence on record.
10. Admittedly, prosecution has not led any evidence to corroborate the evidence of P.W.2 to the effect that on 16.7.1996 the appellant came to his tea stall near Zilla School and demanded Rs.500/- to enable him to shift the tea stall to the railway station. It has been elicited in P.W.2's cross-examination that five employees were working in his shop and some customers were present when the appellant came to his shop on 16.7.1996. Nonetheless, allegation of demand of bribe made by the appellant in the shop to P.W.2 on 16.7.1996 remains uncorroborated.
12
11. In Debananda Das -vrs.- State of Orissa (supra) this Court has pointed out at paragraph 9 that law is well settled that in a trap case, the evidence of a decoy has to satisfy a double test. The evidence must be reliable and if this test is satisfied, it must be sufficiently corroborated. In State of Kerala and another -vrs.- C.P. Rao (supra) it was held by the Hon'ble Supreme Court as follows:
"7. In the background of these facts, especially the non- examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi v. State of Maharashtra :
1980 SCC (Cri.) 121 wherein a three-Judge of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on. In the aforesaid circumstances, the three-Judge Bench in Panalal Damodar Rathi case held that there is grave suspicion about the appellant's complicity and the case has not been proved beyond reasonable doubt.
8. This Court finds that the appreciation of the ratio in Panalal Damodar Rathi case by the High Court was correctly made in the facts and circumstances of the case."
12. While making a reappraisal of evidence on record what is glaring is that P.W.2 has made vital self-contradiction regarding his nexus with and the role of Sima Joseph in lodging prosecution against the appellant. At paragraph 11 of his evidence in course of cross- examination P.W.2 stated that he did not know Sima Joseph. P.W.2 also stated that he came to the C.B.I. office with a person and in the very next sentence he testified that he came alone to the C.B.I. office. He also 13 testified that he did not discuss about the demand made by the appellant with Sima @ Sevesten Joseph. However, such assertion made by P.W.2 was demolished in course of cross-examination. At paragraph 13 of his evidence P.W.2 proceeded to admit that Sima Joseph told him to lodge complaint. Not only said Sima Joseph accompanied him to the office of S.P., Puri but also to the office of S.P. (C.B.I.), dictated the F.I.R. and also paid bus fare to come to Bhubaneswar. Conduct of P.W.2 in making an attempt to suppress acquaintance with Sima Joseph and subsequent admission regarding active role including financing P.W.2 for his journey to Bhubaneswar to lodge complaint against the appellant renders P.W.2 to be anything but truthful. Learned counsel for the appellant placing reliance on the contents of Ext.D, the copy of the writ petition in O.J.C. No.10013 of 1996 instituted by the Sevestan Joseph @ Sima Joseph, contended that abovesaid Sima Joseph is an affluent person having house in Puri town and a garden stretching over 20 acres in Puri-Konark Marine Road. In the writ petition Sima Joseph has elaborately detailed his inimical relationship with the appellant. The defence case from the very beginning is that P.W.2 initiated prosecution against the appellant on false accusation at the instance of Sima Joseph by making such suggestion to P.W.2 in course of his cross-examination. 14 In such circumstances, evidence of P.W.2 requires close scrutiny in order to pass the test of being reliable and corroborated.
13. With regard to demand made by the appellant at the time of trap, P.W.2 testified in his examination-in-chief that at about 8.10 to 8.20 P.M. the accused reached at the railway station. Seeing him P.W.2 paid his respect to him and offered him money. Thereafter, he accompanied the appellant to the office of R.P.F. After entering into his office, the appellant went to the bath room. After returning from the bath room, the appellant took his seat and asked whether money was brought by P.W.2. Then P.W.2 handed over the money to the appellant. It may be pointed out that in case P.W.2 offered money to the appellant soon after seeing and paying respect to him in the railway station, it is not understood as to why the appellant asked P.W.2 as to whether he had brought the money. Also, P.W.2 in his cross-examination at paragraph 14 stated that after seeing the appellant getting down from the train he went near the appellant, wished him and offered money. However, he contradicted himself in the very next sentence by again saying that he offered money to the appellant when the appellant came to the R.P.F. office. Thereafter, P.W.2 again stated that after wishing the appellant, he told the appellant that he had brought the money and the appellant told him to come to R.P.F. office. P.W.2 having stated that he did not 15 remember if he had said in his examination-in-chief that he offered money to the appellant after paying respect to him, again reiterated that he offered money to the appellant out side the platform and the appellant told him to come to the police station and give money there. In this connection, it has been elicited in the evidence of P.W.5, the investigating officer at paragraph 8 of his cross-examination that P.W.2 did not state to him that he offered money to the appellant near the platform and the appellant asked him to come to his office. Thus, evidence of P.W.2 regarding demand of bribe before the trap is sketchy, inconsistent and contradictory. It is also worthwhile to point out that it is in the evidence of P.W.3 that P.W.2 had been instructed by the investigating officer to pay money to the appellant on demand. However, it is apparent from the evidence of P.W.2 that he offered money without any demand being made by the appellant.
14. Apart from the above, it is found that P.W.2 stated at paragraph 15 of his cross-examination that he stayed in the office room of the appellant for about two minutes. However, as has been pointed out earlier, P.W.2 asserted to have accompanied the appellant from the platform to his office. In his cross-examination at paragraph 17 P.W.2 admitted that he had stated before the investigating officer that after reaching the office the appellant discussed with his staff about some 16 official matters. P.W.3 stated that at about 8.25 P.M. the appellant came out of the railway station and seeing him P.W.2 met him near the R.P.F. post. Both P.W.2 and the appellant proceeded to R.P.F. office and P.W.4 followed them keeping little distance. Only at about 8.55 P.M. P.W.2 came out of the R.P.F. office and gave the pre-arranged signal. Thus, evidence of P.W.2 as well as P.W.3 reveals that P.W.2 was in the office of the appellant for a longer period. If P.W.3 is believed, P.W.2 was in the office of the appellant for near about half an hour. Contradictory assertion made by P.W.2 to have stayed for about two minutes only in the office of the appellant also renders the evidence of P.W.2 suspicious.
15. So far as evidence of P.Ws.3 and 4 is concerned, it is in the pre- trap memorandum Ext.3 as well as evidence of investigating officer P.W.5 that he had instructed P.W.3 to follow the informant and remain present at a reasonable distance so that he could hear the conversation between the appellant and P.W.2. Therefore, prosecution case is that P.W.3 was directed to be overhearing and shadow witness. Neither P.W.3 nor P.W.4 testified to have heard the conversation between the appellant and P.W.2. On the other hand, P.W.3 testified in his cross-examination that before they left for Puri, no instruction was given to him by the C.B.I. officer. He denied to have stated before the I.O. that he was instructed to accompany and follow P.W.2 at a reasonable distance so as to witness 17 the transaction and overhear the conversation. P.W.3 also stated that in his presence no such instruction was given to P.W.4 to follow P.W.2 to witness the transaction and to overhear the conversation. P.W.3 did not depose to have followed the appellant in an obstrutive manner and overhear the conversation. However, P.W.4 testified that he followed the appellant and P.W.2 at a close distance and stood on the verandah of the R.P.F. office while P.W.2. entered inside the office. Five to ten minutes thereafter P.W.2 came out of the office and gave pre- arranged signal by scratching his head. Thus, neither P.W.3 nor P.W.4 has performed the task of overhearing or shadow witness. Though P.W.3 was chosen to be the shadow witness, P.W.3 denied to have been entrusted with such task. In Debananda Das -vrs.- State of Orissa (supra), inconsistency with regard to identity of overhearing witness has been found to be a lacuna and one of doubtful features rendering the prosecution case unbelievable. It was observed at paragraph 10:
"Since the evidence of the complainant is not trustworthy, his evidence does not create confidence and the same is liable to be discarded. Further the over-hearing witness as per the complainant was P.W.2. However, as per the prosecution case P.W.4 was the over-hearing witness and on that discrepancy the evidence of P.W.3 was not corroborated by the independent witnesses. xx xx xx xx xx xx"
16. Thus, on an appraisal of evidence on record, it is found that not only evidence of P.W.2 cannot be held to be reliable and trustworthy 18 due to inherent inconsistencies, suppression and contradiction but also evidence of neither P.W.3 nor P.W.4 is capable of being accepted as wholly reliable. Evidence of P.W.2 is also contradicted by evidence of P.Ws.3 and 4. In such circumstances, prosecution is found to have failed to discharge the initial burden of proving that the appellant accepted Rs.500/- otherwise than legal remuneration in response to demand made by him for doing any official work. Consequently, prosecution has failed to prove the existence of basic facts entitling it to avail presumption under Section 20 of the P.C. Act.
17. In Sita Ram -vrs.- State of Rajastan : AIR 1975 SC 1432 it has been held by the Hon'ble Supreme Court:
"when once prosecution fails to prove the case beyond reasonable doubt, it must be held that the presumption stands rebutted and the accused is not obliged to prove his innocence.
18. In Suraj Mal -vrs.- The State (Delhi Administration) : AIR 1979 SC 1408 it has been held by the Hon'ble Supreme Court:
"xxx mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable xxx".
19. Moreover, as has been held by the Hon'ble Supreme Court in Kali Ram -vrs.- State of H.P. : AIR 1973 SC 2773:
"There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even 19 in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of accused. If some material is brought on the record consistent with the innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
20. Not only defence plea was suggested to P.W.2 and elaborately stated by the appellant in course of his examination under Section 313 of the Cr.P.C. but also in order to support the defence plea D.W.1 was examined. D.W. 1 stated that two to three days after Ratha Yatra in the year 1996 in his presence the appellant told to P.W.2 at his tea stall that in the morning while taking tea he probably dropped a five hundred rupee note and asked P.W.2 to bring that note to R.P.F. post if he or any of his servants found it. There is nothing in D.W.1's cross- examination to ignore his version. On the contrary, it has been elicited in D.W.1's cross-examination that when he discussed with P.W.2 regarding the C.B.I. raid, P.W.2 told him that he actually knew nothing and that one Sima Joseph arranged the raid.
21. It is well settled that there is no qualitative difference between the evidence led by the defence or by the prosecution, and such evidence cannot be rejected merely because of conjecture and surmises. 20 It is well settled that while prosecution has to prove its case beyond reasonable doubt, defence has only to produce evidence or probablised its defence. In Ram Kumar Agarwal -vrs.- State of Orissa : 80 (1995) CLT 223 it has been held:
"8. True it is, evidence of a defence witness carries the same weight as that of the prosecution. His credibility should not be doubted merely because his attendance has been procured by the accused. Prosecution witnesses are not necessarily truthful and the defence witnesses are false witnesses. When two versions are before the court-one by the prosecution and the other by the defence, it is for the court to scrutinize and find out as to which of them is probable and believable. If on assessment of the evidence led by the parties probability factor echoes in favour of the defence, the court should given benefit of doubt to the accused and acquit him of the charge. Xx xx xx xx xx xx xx."
22. In the present case, the appellant's plea to have accidentally dropped Rs.500/- finds corroboration from the evidence of D.W.1. P.W.2 having initially made an attempt to suppress his nexus with Sima Joseph was constrained to admit regarding active role played by Sima Joseph in lodging the F.I.R. Therefore, evidence adduced by prosecution itself coupled with evidence of D.W.1 goes a long way to probablise the defence version.
23. In view of the findings that evidence adduced by the prosecution is not reliable, evidence of P.W.2 does not stand the test of being trustworthy and corroborated, and evidence on record probablises 21 the defence case, the impugned judgment is not sustainable. The appellant is entitled to benefit of doubt and acquittal.
In the result, the appeal is allowed. The impugned order dated 30.05.2000 passed by the Special Judge (CBI), Bhubaneswar in T.R. Case No.118/83 of 99/96 is set aside.
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B.K. Patel, J.
Orissa High Court, Cuttack, Dated the 18th of February , 2014/Aswini/B.Jhankar