Orissa High Court
Damodar Mahalik vs State Of Odisha (Vigilance) on 31 October, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.161 of 2007
An appeal under Section 27 of the Prevention of
Corruption Act, 1988 read with Section 374 of the Code of
Criminal Procedure.
Damodar Mahalik .... Appellant
Mr. H.K. Mund, Advocate
-versus-
State of Odisha (Vigilance) .... Respondent
Mr. S.K. Das, A.S.C.
for Vigilance
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 08.04.2022 | Date of Judgment: 31.10.2023
______________________________________________________
A.K. Mohapatra, J. :
1. The appellant named hereinabove has preferred this criminal appeal under Section 374 of Code of Criminal Procedure read with Section 27 of the P.C. Act, 1988 thereby assailing the judgment dated 20.3.2007 passed by the Special Judge Vigilance, Berhampur in G.R. Case No.23 of 1999 (V) corresponding to T.R. Case No.52 of 2001. By virtue of the impugned judgment the // 2 // learned Special Judge Vigilance has convicted the appellant for commission of offences chargeable under Section 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and as such sentenced him to undergo R.I. for one year and to pay a fine of Rs.2,000/- and in default to undergo R.I. for 3 months more under Section 7 of the P.C. Act and further, sentencing the appellant to undergo R.I. for 2 years and to pay a fine of Rs 5000/- in default to undergo R.I. for 6 months more under Section 13(1)(d) read with Section 13(2) of the P.C. Act.
2. The case of the prosecution, in brief, is that one Bibachha Konhar (P.W.1) lodged a written report before the D.S.P. Vigilance, Berhampur on 20.07.1999 inter alia alleging that he has been working as Sarapanch of Baragaon Gram Panchayat since 1996. The Panchayat has undertaken renovation work of a tank at Parbatipur which includes repair of school building of Telikmal and improvement of road from Borigobha to Sukapanga under the Jawahar Rojgar Yojana at a cost of Rs.25,000/-, Rs.24,763/- & Rs.34,662/- respectively. The Junior Engineer had measured the work but the petitioner had not check measured the work. He has further alleged that on his approach the appellant demanded a sum of Rs.4,250/- as illegal gratification. The complainant had no // 3 // alternative than to satisfy the aforesaid illegal demand and initially the complainant agreed to pay a sum of Rs.2,000/- to the appellant as bribe. Before making such payment to the appellant, the informant approaches the Vigilance Police.
3. On the basis of aforesaid allegation, D.S.P. Vigilance, Berhampur treated the written complaint as an F.I.R. and directed S.L. Rao, Inspector of Vigilance to investigate into the allegation by laying a trap. Simultaneously, the D.S.P. Vigilance forwarded a report to the S.P. Vigilance, Berhampur. Finally, a trap was laid to detect the crime. Accordingly, on 21.07.1999 the raiding party proceeded to the office of the B.D.O., Kantamal after making necessary preparation for laying the trap. The complainant and the accompanying witnesses went ahead to the Block Office and at about 4.30 P.M., the decoy informed about non-availability of the appellant in the office and that he was available at his residence.
4. The decoy and the accompanying witnesses along with raiding party went to the residence of the appellant which was situated in the Block Colony, Kantamal. At about 4.50 P.M. the accompanying witnesses gave a signal and on receipt of such signal the member of the reading party rushed to the spot. The Inspector Vigilance (P.W.6) disclosed his identity and challenged the // 4 // appellant to have demanded and accepted bribe of Rs.2,000/- from the complainant. It is further alleged that the appellant on being asked, gave a nervous reply denying the allegation of acceptance of bribe from the complainant. The decoy told that as per the direction of the appellant he had kept the money in the right side drawer of the table in the residential house of the appellant. The tainted money and other documents were seized. Thereafter, on completion of the investigation, charge-sheet was filed against the appellant after obtaining the sanction.
5. To bring home the charges, the prosecution altogether examined 8 witnesses out of which P.W.1 is the complainant, P.W.2 is the accompanying witness, P.W.3 is the Junior Engineer, P.W. 4 is the Assistant Engineer witness to the trap, P.W.5 is the Deputy Secretary, G.A. Department who issued sanction order, P.W.6 is the Inspector of Vigilance, P.W.7 is the I.O., P.W.8 is a member of the trap party. So far, the defence is concerned, the appellant took a plea of denial, however, he has not examined any witnesses in support of his contention.
6. The learned Trial Court in course of the trial formulated four points for determination in the trial. The first point was obviously with regard to the demand of money. The second being // 5 // whether the appellant accepted Rs.2,000/- from the decoy as advance. The third point was whether the appellant had accepted the bribe to show official favour to the decoy. The fourth and the last point was whether the accused was a public servant and as to whether there is valid sanction for launching prosecution against him. After an elaborate discussion, the learned Trial court by virtue of the impugned judgment has returned his findings against the present appellant. So far the point No.1 is concerned, the learned trial court has concluded that the statement of decoy with regard to the factum of demand of bribe by the B.D.O. finds sufficient corroboration from the evidence of other witnesses and circumstances, therefore the prosecution has been able to establish such charges against the appellant.
7. In reply to point Nos.2 & 3, the learned trial court has opined that there is no reason to disbelieve the version of P.Ws.3 & 4 to the extent that they had stated before the court that the measurement book at the time of preparation of the voucher was verified by them. However, the accused-appellant had not done check measurement till that day and he had not put his signature. Further, it has been observed that it appears that the accused had put his signature on 27.04.1999, however accepting the version of the // 6 // other witnesses the learned Court below has come to a conclusion that there is no reason to disbelieve the statement of such witnesses to the extent that the measurement book had not been check measured till 21.07.1999 and finally concluded that it is found that the accused has shown check measurement in the measurement book antedating the date to 27.04.1999. As such the prosecution has established, beyond reasonable doubt, that the accused had accepted Rs.2,000/- bribe from the decoy to show official favour.
8. With regard to point No.4 that is the grant of a valid sanction by the Government, the learned Trial court has come to a conclusion that the same has not been seriously challenged by the accused-appellant. However, on perusal of the record coupled with the evidence of P.W.5, the learned trial court has concluded that the Govt. of Odisha has duly accorded sanction for launching the prosecution against the accused-appellant being satisfied with regard to the existence of prima facie case and as such it has been held that the Government has accorded sanction after due application of mind and accordingly there is no illegality in the sanction order.
9. Heard, Shri H.K. Mund, learned counsel appearing for the Appellant and Shri Sanjay Kumar Das, Additional Standing // 7 // Counsel for Vigilance Department. Perused the L.C.R. as well as the relevant records placed before this Court by either side.
10. Shri H.K. Mund, learned counsel appearing for the Appellant, at the outset took this court through the evidence on record in great detail to point out the fallacies in the prosecution evidence. He further contended that the prosecution has examined altogether 8 official witnesses and they have exhibited 19 documents marked as Exts.1 to 19 and material objects which were marked as M.Os.I to VII. Although he categorically submitted that no evidence whatsoever was adduced on behalf of the appellant in support of his defence. By referring to the evidence of the witnesses learned Counsel appearing for the Appellant at the outset submitted that the prosecution has measurably failed in its attempt to bring home the charges. Learned Counsel for the Appellant also contended that neither the trap has been properly proved nor the alleged demand, if any, has been established by adducing any credible/ cogent evidence from the prosecution side. Therefore, he submitted that the entire prosecution case is bound to fall through and the consequential judgment of conviction by the learned trial court be treated to be one based on mere surmises and conjectures.
// 8 //
11. It was also contended by Mr. Mund, learned counsel for the appellant that the legal position is no more Res-Integra. The foundation to establish an offence under section 7 read with 13(1)(d) of the P.C. Act is the proof that is beyond all reasonable doubt of the demand/ request of a valuable thing or pecuniary advantage by the public servant. In other words, in the absence of proof of demand/ request from public servant for a valuable thing or a pecuniary advantage, the offences under section 13(1)(d) cannot be held to be established. In the aforesaid context, learned counsel for the appellant referred to the judgment in Krishan Chander vs. State of Delhi reported in 2016 Cri.L.J 1079. In the aforesaid reported judgment the Hon'ble Supreme Court has categorically held that the demand of illegal gratification is a sine qua non for constitution of an offence under the provision of the P.C. Act. A similar view has also been taken by this Court in Sanatan Dash vs. State of Odisha (Vig.) in CRLA No.322 of 2003 decided on 21.10.2021.
12. It was further argued that the demand of bribe prior to the laying of the trap has not been properly established by adducing credible evidence and as such the said factum is highly doubtful. In the F.I.R. the informant has stated that the appellant demanded the // 9 // bribe on 15.07.1999. In his cross-examination the informant has not mentioned about the date of demand of the bribe. On the contrary, the informant in his deposition at Para-4 of his cross-examination has categorically stated that 10 to 15 days prior to the trap the accused-appellant had demanded the bribe. In such view of the matter, the learned counsel for the appellant submitted that there exists a lot of contradictions in the evidence of the informant and further in the absence of any specific evidence with regard to demand being made by the accused-appellant, the fact with regard to demand of bribe has not at all been established by the prosecution. The fact with regard to demand of bribe being a sine qua non for the offences under the P.C. Act, the same is required to be proved by adducing credible and unimpeachable evidence that too beyond all reasonable doubt.
13. Furthermore, with regard to the same demand of bribe the complainant has stated that he narrated the same before the Official witnesses. However, such evidence of the complainant remains uncorroborated rather contradicted by the Official witnesses. Both P.Ws.2 and 4 who are witnesses to the trap did not depose about any such narration by the complainant at the time of preparation of trap. On such witnesses being declared // 10 // hostile, they are confronted with their own statements about the said facts. However, they have specifically denied to have made any such statements. It was also contended by learned counsel appearing for the appellant that P.Ws.6 & 8 being official witnesses and were associated with the trap are interested witnesses and as such their evidence is required to be scrutinized very cautiously and carefully. Moreover, the evidence of such witnesses cannot be used to corroborate the evidence of decoy. As the same would not be safe at all in a case of the present nature.
14. Learned counsel appearing for the Appellant, in course of his argument, further highlighted the fact that the factum of demand of bribe is seriously disputed. He further questioned the locus of the complainant/ decoy to lodge the report in the present case. In the said context, it was further submitted that the complainant as Sarapanch was in no way personally connected with the execution of work in question as he has stated in the F.I.R. that the works were being done departmentally. On the contrary, during preparation of the trap proceeding he has stated before the P.W.6 and P.W.8 that he was an executant of the works. Similarly, in his deposition before the Court the complainant has stated that three // 11 // village committees have executed the works. In para-4 of his cross- examination the P.W.1 has further stated that he had informed the village committee leaders about the demand of bribe. Learned counsel for the Appellant, at this juncture submitted that the version of P.W.1 is not at all trustworthy as he has been given so many pre- varicating statements at different stages and moreover, such village committee leaders have not been examined by the proseuction. It was also contended that on examination of Ext.15, 16 and 17 which are the work orders issued by the competent authority, the same reveals that one Gobardhana Rana, who was then working as the Secretary of the Gram Panchayat was the executant of all three works. Thus, the P.W.1 had no knowledge about the works or he had intentionally made a false statement before the Court. He further specifically contended that in the entire case there is no demand of any bribe by the above named executant of work order, namely, Gobardhana Rana, who is the actual executant of the work and as such he is entitled to payment, if any, to be made against such work.
15. In the context of demand of bribe, learned counsel for the Appellant referred to the judgment in the case of Madan Mohan Singh vs. State of Uttar Pradesh reported in AIR 1954 SC 637. In // 12 // the said judgment the Hon'ble Supreme Court has held that the question whether any motive for payment at all existed is certainly a relevant and materials fact for consideration. Similarly, learned counsel for the Appellant also relied upon the case in Rabindranath Prusty vs. State of Odisha reported in 1984 OLR (NOC) 21, wherein this Court has held that there was no occasion for the accused to demand bribe and accordingly, the case of the prosecution was disbelieve. He also referred to the case of Panalal Damodar Rathi vs. State of Maharashtra reported in AIR 1979 SC 1191, wherein the Hon'ble Apex Court has held that the complainant in a case of bribery is in no better position than accomplice or abettor and that his testimony cannot be relied without material corroboration. Similarly, in the case of Debananda Dash vs. State of Odisha reported in (2011) 2 OLR 603, this Court has held 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.
16. Learned counsel for the Appellant further urged that the learned Special Judge although has held that as per law the Decoy is in the nature of an accomplice and sufficient corroboration to the // 13 // evidence of the decoy is required, yet without there being any corroboration to the evidence of the decoy regarding demand of bribe at the trap, the learned Court below has accepted the evidence of decoy. It was also contended that the P.W.2, who is an over- hearing witness has not corroborated the version of the decoy as he has stated in his evidence that some conversations took place between the complainant and appellant and that the P.W.2 has not conclusively stated that the appellant had demand any bribe. On the contrary, in para-3 of the deposition, the P.W.2 has stated that he had not seen the demand or acceptance bribe by the accused- appellant. Therefore, the learned Trial Court has committed a gross illegality in accepting the version of P.W.1 and 2.
17. It was also argued before this Court by the Counsel for the appellant that the recovery of tainted money from the drawer inside the office room of the accused at his residence cannot be utilized as an incriminating circumstance against the appellant. Inasmuch as there is no credible material to show that the appellant had any knowledge of the said fact that the tainted money was kept in his drawer.
18. Further, referring to the evidence of P.W.2 it was also contended that the P.W.2 has stated that after keeping the M.B. // 14 // Book on the table of the B.D.O. he went out to call the J.E. of the Block. Therefore, there was ample opportunity on the part of the decoy to plant the tainted money in the drawer of the appellant. In the aforesaid context, learned counsel for the appellant referred to the case of Dr. Sushil Kumar Pati vs. State of Odisha (Vig.) reported in (2018) 71 OCR 436 and submitted that the tainted money was recovered from a pen stand placed on the table of the appellant doctor. In the facts and circumstances of that case, this Court had held that there was ample opportunity on the part of the decoy to plant the tainted money in the pen stand in the temporary absence of the appellant and accordingly it was held that the recovery of the tainted money did not prove the acceptance of bribe.
19. Similarly, reliance was also placed on the judgment in the case of State of Kerala vs. C.P. Rao reported in (2011) 6 SCC 450, wherein the Hon'ble Apex Court observed that mere recovery of tainted money, divorced from the circumstances in which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In the facts and circumstances of the present case keeping in view the evidence adduced from the side of the prosecution learned counsel for the appellant submitted // 15 // that no presumption under Section 20 of the Prevention of Corruption Act, 1988 could be drawn as there is no legal evidence that the tainted money was recovered from the possession of the accused with his knowledge. In the said context, learned counsel for the appellant placed his reliance on the Constitution Bench judgment of the Hon'ble Supreme Court in the case of C.I. Emden vs. State of U.P. reported in AIR 1960 SC 548.
20. In the aforesaid judgment, the Hon'ble Supreme Court has observed "what the prosecution has to prove before asking the Court to raise a presumption against an accused person is that the accused person has received a gratification other than legal remuneration; if it is shown that the accused received the stated amount and that the said amount was not legal remuneration then the condition prescribed by the said section is satisfied." On the question of presumption under Section 20 learned counsel for the appellant also relied upon the judgment in the case of V. Venkata Subbarao vs. State reported in (2006) 13 SCC 305 as well as in the case of S. V. Kameswar Rao and anr. vs. The State reported in AIR 1991 SC 2085. Reliance was also placed on a judgment in the case of State of Maharashtra vs. Dyaneshwar Laxman Rao Wankhde reported in (2009) 15 SCC 200. Thus it was argued that // 16 // the learned Special Judge has erred in law in raising a presumption under Section 20 of the P.C. Act in order to find the appellant guilty and as such, the impugned judgment is vitiated and accordingly unsustainable in law.
21. Mr. Sanjay Kumar Das, learned Standing Counsel appearing on behalf of the Vigilance Department, on the other hand contended that the present appeal is to be decided within the four corners of the four points framed by the learned Trial Court while delivering the impugned judgment. While supporting the judgment and the order of sentence passed by the learned Special Judge, learned Standing Counsel submitted that the trial Court has rightly convicted and sentenced the appellant. Accordingly, it was also contended that the impugned judgment and order of sentence does not call for any interference by this Court in the present appeal.
22. Learned Additional Standing Counsel in course of his argument drawing attention of this Court to the evidence of P.W.1, the decoy, submitted that the decoy is none other than the informant himself and he is the Sarpanch of Bargaon G.P. since the year 1996 and was continuing as such while he deposed before the Court. The decoy-complainant has fully supported the F.I.R. story in his evidence. He further contended that the evidence of the // 17 // Complainant clearly establishes the fact of demand of bribe money of Rs.2,000/- by the accused and voluntary acceptance of such tainted money in the residential office of the appellant and that such tainted money was recovered from the lower table drawer of the accused which has been admitted by the appellant in his accused statement against question No.22 as true. He also submitted that although the work was completed and the J.E. had measured the three works executed, however, the appellant did not cross-check the same for two months and was continuously demanding percentage.
23. Further, referring to evidence of P.W.3 and P.W.4 it was contended by learned Additional Standing Counsel that being official witnesses they have corroborated the evidence of P.W.1 to the extent of disclosure about the demand of bribe money by the accused, so also recovery of the tainted money from the lower table drawer in the residential office of the accused. Both P.W.3 and 4 have proved their signatures in the preparation report Ext.2 and the detection report of Ext.3. He further raised a question before this Court as to why two Government servants i.e. P.W.3 and 4 would depose against another Govt. Servant-the present appellant without any rhyme and reason. He also contended that the P.W.6, P.W.7 // 18 // and 8 who are all Government Servants and official witnesses in this case have corroborated each others evidence by supporting the claim and evidence of P.W.1, the decoy.
24. In course of his argument, learned Additional Standing Counsel elaborately read out the evidences recorded by the trial court of all official witnesses. Specifically referring to evidence of P.W.8 it was stated that he has stated in his evidence that the M.B. Book was verified and it was found that there had been no check measurement by the appellant relating to the work done by the decoy. Similarly, the P.W.8 in his evidence has stated that the I.O. also seized that paper table on verification of the M.B. Book and it was found that the accused had put his signature at page-142 by antedating the date which has been marked as Ext.19/2. Further, it was stated that in the cross-examination no question was put to the P.W.8 for the defence side to impeach the credibility of his evidence regarding antedating of the signature.
25. Learned Additional Standing Counsel further submitted before this Court that the contentions of the learned counsel for the appellant to the extent that much prior to the date of lodging of the F.I.R. by P.W.1, the entire payment against three works orders have been made to the executant of the work, it was submitted that the // 19 // accused who is a responsible B.D.O. has in his accused statement, recorded on 28.02.2006, nowhere whispered a single word or a sentence about such payment against the three executed work by P.W.1. He further contended that such a point is being raised for the first time during hearing of the appeal and as such the same should not be entertained by this Court. He further contended that it has been specifically admitted by the appellant in his accused statement that it was P.W.1, the decoy, who had done the three repair works.
26. In view of the aforesaid evidence on record and the surrounding facts and circumstances under which the tainted money was recovered from the table drawer of the residential office of the appellant, learned Additional Standing Counsel submitted that such evidence clearly proves the case of the prosecution and as such the trial court has not committed any illegality in either drawing the presumption under Section 20 of P.C. Act as well as holding the appellant guilty for commission of the alleged offences. With regard to grant of sanction, learned Additional Standing Counsel submitted that there was a valid sanction which is supported by the evidence of P.W.5. In such view of the matter, learned Additional Standing Counsel submitted that the present appeal is devoid of merit and the same should be dismissed.
// 20 //
27. Having heard the learned counsels appearing for the respective parties and on a careful examination of the entire evidence on record as well as other materials produce before this Court and further taking into consideration the Lower Court Record, this court is of the opinion that the entire issue involved in the present appeal boils down to one crucial point i.e. as to whether the appellant had demanded the bribe to show official favour to the complainant? Moreover, this Court also agrees with the catena of judgments laying down the proposition that the motive for giving bribe and demand for such bribe is a sine qua non for coming to a conclusion that the accused is guilty of commission of an offence under the P.C. Act. On a careful analysis of the legal position as well as on a careful scrutiny of the judgments relied upon by the learned counsel for the appellant which have been specifically referred to hereinabove, this Court is of the considered view that to establish the allegation made against the appellant, the prosecution is duty bound to establish the factum that, in fact, there was a demand for money/ request for material thing to show favour to the complainant in the present case. Moreover, such demand has established by adducing credible evidence and not merely on the testimony of the decoy/ complainant as is the case in the present appeal. This Court is of the further view that mere acceptance of the // 21 // uncorroborated evidence of the decoy that there was a demand of bribe, the same would not be safe and fruitful as there is every possibility of an accused being victimized in the hands of a complainant/ decoy by making false accusation and supporting the same in his evidence before the Court. Therefore, the evidence of such witness (P.W.1) needs to be corroborated by the independent witnesses, who were present at the spot of occurrence.
28. On a careful analysis of the evidence on record, this Court observed that on the basis of the complaint lodged by the P.W.1 a trap was laid, accordingly on the date of occurrence the raiding party went to the office of the appellant where the appellant was not present. On getting information that the appellant is available at his residence, the raiding party decided to go to the residence of the appellant. At the residence of the appellant the decoy was sent first. It is stated by the over-hearing witness i.e. P.W.2 that he had over- heard some conversations between the decoy and the appellant. However, on a scrutiny of his evidence, this Court is not satisfied with regard to specific evidence in connection with the demand of bribe by the appellant. As because, the P.W.2 who was the closest person to the P.W.1 at the time of trap has categorically submitted // 22 // that he heard some conversations, however he has not categorically stated as to whether the appellant had made any demand for bribe.
29. Moreover, the surrounding facts and circumstances reveal that the money was recovered from the lower table drawer of the residential office of the appellant. Further, it appears that the appellant was absent from residential office for some time as he went inside and came back. Therefore, the possibility of planting the money in the table drawer of the appellant by P.W.1 cannot be altogether ruled out. The most important witness who was supposed to corroborate the evidence of P.W.1 has failed to do so in so many terms. Thus, in the ultimate analysis, this Court is of the considered view that demand of bribe has not be established by adducing cogent and reliable evidence which would singularly point to the fact that there was a demand for bribe by the appellant to show official favour.
30. During scrutiny of the evidence adduced from the prosecution side, this Court found that there are a lot of latches in the evidence of such prosecution witnesses. Although it is alleged that the M.B. Book was not signed by the appellant, however on examination of exhibits it appears that the M.B. Book has in fact been signed by the appellant. Further, on verification of the work // 23 // orders which have been marked as exhibits, it is revealed that the work order was in fact issued in favour of one Gobinda Rana, who happens to be the Secretary of Gram Panchayat and not the P.W.1, the decoy, as claimed by him. Some evidence is also coming forth that some amount has been paid as against the aforesaid work assigned to the above named Gobindra Rana.
31. This Court observed that the trial court while delivering the impugned judgment has failed to block the loopholes in the prosecution evidence by referring to any credible evidence. Moreover, the presumption raised under Section 20 of the P.C. Act becomes doubtful in the sense that the foundation of a case of this nature is the establishment of demand of bribe by the Government Officer to show official favour beyond all reasonable doubt and the same is required to be established by adducing credible and unimpeachable evidence solely pointing to a single fact that there was a demand of bribe or any material or favour to receive some favour of the Government Officer in return. Since this Court has already held that the demand of bribe has not been conclusively established by adducing credible/ unimpeachable evidence, the conduct of the Special Judge in raising presumption under Section 20 is absolutely illegal and uncalled for.
// 24 //
32. Upon a careful examination of the record, this Court observed that both P.W.6 and 8 deposed before the Court that the complainant has stated that the appellant had demanded bribe for check measurement at the time of preparation. On a careful examination of their evidence, this Court found that the same is not trustworthy and that the appellant cannot be convicted solely on the basis of such statement of P.W.6 and 8. It also appears from the record that the record of the three work orders have been marked as Ext.15, 16 and 17 respectively. A close look at such Ext.15m 16 and 17 would reveal that after conclusion of the work, bills were raised by the executant. It further reveals that such bills were duly sanctioned and paid to the executant. This Court is really astonished to observe that although the complainant who claims to be the executant, however, the record reveal that one Gobinda Rana, the Secretary of the G.P. is the executant, who had received the payment. This aspect of the matter has been completely overlooked by the learned trial court while passing the impugned judgment thereby convicting the appellant under the alleged sections.
33. In view of the aforesaid analysis of facts as well as keeping in view the settled legal position, this Court is inclined to hold that the prosecution has failed to establish the charges against the // 25 // appellant by adducing cogent and reliable evidence. Thus, the appellant is entitled to the benefit of doubt and accordingly, this Court holds that the impugned judgment and the order of sentences are unsustainable in law and accordingly the same are hereby set aside. Ultimately the appeal is allowed. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 31st of October, 2023/ Anil.
Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Oct-2023 13:48:09