The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.295 of 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Biren @ Birendra Kumar Dash ……. Petitioner -versus- State of Odisha ……. Opposite Party For the Petitioner : Mr. Debasish Patri, Advocate For the Opp. Party : Mr. B. K. Ragada, Additional Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. The present Criminal Revision Petition filed under Section 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 28.02.2011 passed by the learned Additional Sessions Judge, Sonepur in Criminal Appeal No.14 of 2003, whereby the judgment of conviction and order of sentence dated 12.05.2003 passed by the learned J.M.F.C., Rampur in G.R. Case No.93 of 2002 has been confirmed. 2. The prosecution story, as revealed from the F.I.R., is that on 22.08.2002 at about 4.00 P.M., when the informant, Benudhar Meher, along with one Laljee Meher of village Lachhipur were on their way back to their village after buying silk threads, at that time, the petitioner, and his brother, Jeeten, from the village of Lupursingha, were waiting for them near the rice mill owned by Prabir Das. They began to harass and insult the two men, using vulgar language like Maghiya and detained them. Another villager from Lachhipur, Jogendra Sahu, arrived at the spot and was also detained by the accused. Subsequently, Biren and Jeeten took the three men to Dasa Mallik's house in Indra Palli, where they stole their bicycles, silk threads, and cash amounts totaling Rs.315/-, Rs.321/- and Rs.50/-. The accused also threatened to keep the victims hostage at the house's verandah. During this time, Biren and Jeeten were seen buying chicken and liquor with the stolen money and cooking the chicken at Dasa Mallik's house. They also prepared chicken curry for the victims. Afterward, the accused physically assaulted the Page 2 of 8 victims, forcing them to leave their village. They sought refuge in the house of Kanhu Mishra in the village of Lupursingha. The accused threatened the victims, demanding Rs.10,000/- from each of them, or they would kill them and obtained their signatures on a plain paper. Based on these allegations, a First Information Report (FIR) was filed and investigation was made by the O.I.C. himself, who, after completion of the investigation, submitted a charge-sheet against the accused persons. 3. The petitioner and one Jeeten @ Jeetendra Dash were subjected to trial on the charges against them for the offences punishable under Sections 341/342/294 and 394 read with Section 34 of I.P.C. To substantiate the charges framed against the petitioner and the co-accused persons, the prosecution has examined as many as 11 witnesses. P.Ws.1, 2, and 5 were the victims. Out of them, P.W.1 was the informant in the instant case. P.Ws.6, 7, 8, 9 and 10 were the independent witnesses to the seizure, whereas P.Ws.3 & 4 were the witnesses to the occurrence. P.W.11 was the Investigating Officer in this case. The prosecution had Page 3 of 8 also exhibited 8 documents in support of its case. The prosecution case primarily hinges upon the evidence of P.Ws.1, 2, 4, 5 and 11. 4. Relying upon the testimony of the witnesses which found corroboration with the documents, the learned trial Court inter alia recorded the following findings:- <13. Apart from that, in this case whatever the informant has stated in his evidence is fully corroborated by the F.I.R. story and there is absolutely no material contradiction in his evidence and the contents of the F.I.R. There is nothing to disbelieve the evidence of the informant and other victims, such as P.Ws.2 & 5 regarding the alleged occurrence. P.W.4 also corroborates the evidence of the victims. As regards the seizure of bicycles there is nothing to disbelieve the evidence of the I.O., though the prosecution witnesses do not support the I.O. Since the signatures of the seizure witnesses are admitted, their denial regarding the seizure cannot be believed. 14. It is contended by the learned defence counsel that in this case the prosecution has failed to prove the alleged offences against the accused beyond all reasonable doubts, since the seizure witnesses do not support the prosecution and the involvement of the accused Jeetendra Dash in this case is not established. He, therefore, submits that the accused persons be acquitted of the charges. On the other hand, the learned A.P.P. submits that in this case the evidence of the informant and other victims and the I.O. are clear, cogent and the trustworthy and free from prosecution in this case has been able to prove the offences charged against the accused persons beyond all reasonable doubts, for which they are to be found guilty of the alleged offences and convicted thereunder.= inconsistencies. Hence, Page 4 of 8 Eventually the co-accused Jeeten @ Jeetendra Dash was acquitted from all the charges whereas the present petitioner was acquitted for the charges under Sections 294/394 of I.P.C., however, he was found guilty of the offences punishable under Sections 341/342/392 of I.P.C. The trial Court accordingly passed the sentence of three years of R.I. with a fine of Rs.3,000/-, in default to undergo R..I. for further period of six months for offence punishable under Section 392 of I.P.C. and various other sentences were also imposed on other counts. 5. Being aggrieved by the said judgment and order dated 12.05.2003 passed by the learned trial court, the petitioner preferred Criminal Appeal No.14 of 2003 before the learned Additional Sessions Judge, Sonepur. After hearing the learned counsel for the parties, the Appellate Court dismissed the appeal and confirmed the judgment and order passed by the trial Court vide its judgment and order dated 28.02.2011. 6. Being aggrieved by the aforesaid judgment and order dated 28.02.2011 of the learned Appellate Court, the petitioner preferred Criminal Revision before this Court. Page 5 of 8 7. Heard Mr. Debasish Patri, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 8. Learned counsel for the petitioner submitted that on the same set of evidence, one of the co-accused has been acquitted by the trial Court. He further submitted that it appears improbable that the petitioner and the co-accused confined the victims in a room, prepared chicken curry and offered them to take the same, but the trial Court without considering these aspects carefully convicted the petitioner and the Appellate Court without scrutinizing the evidence on record, erroneously upheld the judgment of the trial Court. Learned counsel for the petitioner further submitted that the petitioner has already been detained in custody for about one year and four months. 9. I have perused the judgment of the Appellate Court dated 28.02.2011. The Appellate Court has concurred with the findings recorded by the trial Court and dismissed the Appeal. In the instant case, the testimony of P.Ws.1, 2 and 5 are unimpeachable. They sustained long cross-examination by the defence but nothing could be elucidated Page 6 of 8 from their evidence to create doubt in the prosecution version rather on the contrary, their testimony stood corroborated by the ocular version of P.Ws.3, 8, 9 and 10. 10. I have carefully gone through the evidence and came to the conclusion that the Courts below have rightly evaluated the evidence on record and convicted the petitioner. Therefore, there is no scope for this Court to interfere with the conviction recorded for commission of offences by the petitioner punishable under Sections 341/342/392 of I.P.C. The present Revision Petition fails in that regard. 11. I have found from the record that the petitioner was taken into custody on 06.09.2002 and was released on 11.05.2003 during the trial period. Therefore, he has undergone eight months six days as an Under Trial Prisoner (UTP). Subsequently, the petitioner was also arrested on 12.05.2003 and was released on 15.05.2003. Therefore, he was in custody for four days again as UTP. After the conviction, the petitioner was again taken into custody on 08.06.2011 being a convict, till this court admitted him to bail on 21.12.2011 i.e. he was in custody for six months and fourteen days. If the total period of custody is taken into Page 7 of 8 account, he has already undergone the custody for fourteen months and twenty-four days. Therefore, I am inclined to modify the sentence awarded to the petitioner to that of the custody he has already undergone, however, the fine amount imposed on the petitioner by the court below is increased to Rs.5,000/-, in default of payment, to further undergo R.I. for a period of one month. The fine amount to be deposited by the petitioner shall be disbursed to the victim in accordance with the provision of Section 357 Cr.P.C. as compensation. 12. With above modification and direction, the CRLREV is disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2024 10:31:54 Page 8 of 8