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Judgment
L. Mohapatra, J
The Petitioners in both the revisions were accused person in G.R. Case No. 26 of 1990 in the Court of the learned S.D.J.M., Malkangiri along with another accused namely, Deepak Das. Out of the three accused persons facing trial, both the Petitioners having been convicted for commission of offence u/s 379 of the Penal Code and sentenced to imprisonment for six months, preferred an appeal and the appeal having been dismissed, the present revisions have been filed challenging the orders of both the Courts below.
Case of prosecution is that the informant was the Live-Stock Inspector under Live-Stock Centre on 26.3.1988. The Centre having tin roof was kept under lock and key since October, 1989. On 25.10.1989 he noticed removal of tin sheets from the roof of the Centre as well as removal of medicines and equipments from inside the room. On enquiry, it was ascertained that these two Petitioners and one Deepak Das removed the tin sheets and sold the same to Palli Mangal Samiti of M.V. 23 on receipt of consideration of Rs. 807/-. After ascertaining about the said theft. F.I.R. was lodged at Malkangiri Police Station. During investigation, the stolen tin sheets were seized from the house of the Secretary of the Village Committee and on completion of investigation, charge-sheet was filed for commission of offences under Sections 379/411/34 of the Penal Code against the Petitioners as well as accused Deepak.
The defence took a plea of false implication.
In order to bring home the charges, prosecution examined 8 witnesses, out of whom reliance was placed on the evidence of P. Ws. 2, 3 and 4 by both the Courts below and the Petitioners were convicted for commission of offence u/s 379 of the Penal Code. The other accused namely, Deepak Das was acquitted.
Challenging the findings of both the Courts below, the Learned Counsel appearing for the Petitioners submitted that P. Ws. 3 and 4 who are said to be the daily wage labourers engaged by the Petitioner Ranjit Ray cannot be believed, as during investigation they stated before the police that they had been engaged by Das Babu for removal of the tin sheets. It is also contended that they having developed the story at the stage of the trial, it will be unsafe to rely on those two witnesses. So far as P.W. 2 is concerned, the Learned Counsel appearing for the Petitioners also submitted that in view of the discrepancies in his evidence, no reliance can be placed on him.
From the discussion made by the Courts below, it appears that reliance has been placed on the evidence of P. Ws. 2, 3 and 4. P.W. 2 was the Ward Member of the village who in his evidence has stated that for the roof of a temple that was being constructed by Palli Mangal Samiti some tin-sheets were required and for the said purpose he came to Malkangiri. He found both the Petitioners sitting in front of the office of the Executive Engineer, Construction Division, DNK Authority and on his query, the Petitioners stated that the tin sheets were being auctioned by the office and advised him to contact the office. This witness has further stated that he had talk with one Guha Babu and accused Deepak and was advised to wait for some time till the auction was held. This witness has also stated that ten days thereafter the Petitioners went to his house and asked him to pay Rs. 807/- towards the cost of tin sheets. This witness further stated that he paid the amount and accompanied both the Petitioners up to the Veterinary Hospital of M.V. 23. It is also stated by this witness that Petitioner Ranjit Ray got removed 14 pieces of tin-sheets with the help of local labourers and delivered the same to him which he carried to their village. Subsequently, the tin sheets were seized by the police alleging that those were stolen from the Veterinary Hospital. The evidence of this witness is challenged by the Learned Counsel as not reliable on the ground that the statement of this witness that the Petitioner Ranjit Ray got the tin sheets removed by engaging labourers is not corroborated by any cogent evidence. P. Ws. 3 and 4 are the labourers who were said to be engaged by the Petitioner Ranjit Ray for removal of tin-sheets. These two witnesses though in Court have stated that they were asked to remove the tin-sheets from the roof of Veterinary Hospital on payment of Rs. 20/-, it appears that they had not stated so during investigation before the police. The I.O. who has been examined as P.W. 8 in the case has specifically stated that P. Ws. 3 and 4 during investigation stated before him that they removed the tin-sheets from the roof according to the direction of Das Babu and never stated before the I.O. that they were directed by accused Ranjit Ray to remove the tin-sheets. The suggestion made to these witnesses though has been denied, from the evidence of P.W. 8 it is clear.that initially the prosecution came out with a story that P. Ws. 3 and 4 had been engaged by Das Babu removal of the tin-sheets, subsequently at the stage of trial the same has been given a go-bye and a different story is stated implicating the accused Ranjit. In this connection, reference is made to the case of Krushna Podha and three others v. State of Orissa reported in (1992) 5 OCR 529. This Court while dealing with such a situation observed that where there is wide discrepancy between the scenario as described in the first information report as well as statements made before the Police during investigation and as stated in Court on material particulars, it may not be safe to rely on the evidence of such witness who speaks a different story at different times. I, therefore, considering the evidence of P.W. 8 do not think if safe to rely on the evidence of P. Ws. 3 and 4. Since the evidence of P.W. 2 also refers to the offence alleged to have been committed by Ranjit with the help of P. Ws. 3 and 4, his evidence to that extent becomes unreliable.
Apart from the aforesaid three witnesses, no other witness has stated about commission of theft of the tin-sheets by the Petitioners. In absence of any other reliable evidence and having held that the evidence of P. Ws. 3 and 4 cannot be relied upon, I agree with the Learned Counsel for the Petitioners that the conclusion arrived at by both the Courts below on the basis of the evidence of the aforesaid three witnesses cannot be sustained.
I, accordingly, allow both the revisions, set aside the order or conviction and sentence passed by both the Courts below against the Petitioners.