The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.74 of 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Babuli Sahoo ……. Petitioner -versus- State of Orissa ……. Opposite Party
Legal Reasoning
For the Petitioner : Mr. R.K. Mohapatra, Advocate For the Opp. Party : Mr. S.R. Roul, Addl. Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 23.07.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Revision filed by the petitioner under Sections 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 06.01.2011 passed by the learned Ad hoc Additional Sessions Judge (FTC), Dhenkanal in Criminal Appeal No.10 of 2006 (60 of 2007), whereby the judgment of conviction and order of sentence dated 25.01.2006 passed by the learned S.D.J.M., Dhenkanal in 2(c)CC Case No.31 of 1994 (T.R. Case No.31 of 1997) has been confirmed. 2. The case of the prosecution in brief is that on 28.5.1994 at about 7 A.M., the Inspector of RPF Post, Talcher found the petitioner Babuli Sahoo carrying railway properties viz. bearing plate, fish plates, brake block, fish bolts, nuts, junction fish plate etc. without any authority. On interrogation, the petitioner confessed to have removed the properties from the railway tracks in between Sadasivpur and Hindol Road railway stations. He was on his way to the scrap godown of Padmanabha @ Padia for disposing them off. He led the railway staff and the local police to the scrap godown at village Chainpur. However, by the time they arrived, Padmanabha had fled the place. On search, the Inspector recovered and seized articles viz. pieces of rail, one flap door of N-Box wagon, vacuum cylinder, brake beam, vacuum pipe, brake blocks and other articles suspected to be railway property. The Inspector seized the articles and on completion of investigation, submitted PR against the accused persons, resulting in the trial. Page 2 of 6 3. To bring home charges, the prosecution had examined altogether four witnesses and exhibited eight documents. P.Ws.1 & 2 were the official seizure eye witnesses, P.W.3 was examined to prove the seized properties and submitted his report and P.W.4 was the I.O. of this case. The defence had examined one witness, i.e., D.W.1. P.W.3 stated that the properties were nothing but railway properties and were not available in the open market. Therefore, solely relying upon the testimony of P.W.3, the learned trial Court convicted the petitioner for the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentenced him to undergo R.I. for one year and to pay fine of Rs.1,000/-, in default, to undergo further R.I. for two months. 4. The petitioner assailed the judgment of conviction and order of sentence dated 25.01.2006 passed by the learned S.D.J.M., Dhenkanal in 2(c)CC Case No.31 of 1994 (Trial Case No.31 of 1997) before the Court of learned Additional Sessions Judge (FTC), Dhenkanal in Criminal Appeal No.10 of 2006 (60 of 2007). The Appellate Court had affirmed the conviction recorded against the petitioner for the offence under Section 3(a) Page 3 of 6 of the Railway Property (Unlawful Possession) Act, 1966. The appellate Court in Paragraphs-8 & 9 of the judgment has returned the following findings: “8. The suspected railway properties were examined by P.W.3, who opined as per his report Ext.6 that the properties were nothing but railway properties and are not available in the open market. There is nothing on record to discredit his evidence. The seizure of the articles from appellant Babuli Sahoo having been proved, non- production of the articles in the court would not affect the same. Appellant Babuli has not been able to substantiate that the railway properties came in to his possession lawfully. Therefore, the learned court below was justified in recoding for unlawful possession of railway properties. However, the finding of the court against appellant Padmanabha is not sustainable. 9. In the result, the conviction and sentence against the appellant Padmanabha in Criminal Appeal No.5/2006 is set aside. He be set at liberty. The finding of guilt and recording of conviction against appellant Babuli Sahoo in Criminal Appeal No.10/2006 is confirmed.” the guilt of accused Babuli 5. The petitioner has called in question the judgment of conviction and order of sentence passed by the courts below in this petition having failed in his appeal. 6. There was nothing in the evidence adduced by the prosecution to suggest that local witnesses were present at the spot at the time of seizure. P.W.2 has stated that the seizure was made near the level crossing and no other witnesses were passing by the road at the relevant time. No outsider Page 4 of 6 was present at the spot during the detection. It is settled law that independent corroboration should be expected whenever there is scope for it. In the instant case, there was no scope for citing the local witnesses to the seizure of the properties from the appellant. 7. Therefore, I am of the considered view that the conviction recorded against the petitioner punishable under Section 3(a) of the Act deserves to be sustainable in view of unimpeachable evidence came on record. The prosecution witnesses have sustained elaborate cross-examination, but nothing could be elucidated from them to read in favour of the accused- petitioner. However, the appellate Court has failed to take into account the facts and circumstances of the present case while rejecting the prayer of the petitioner for granting the benefit under the P.O. Act, which reads as under: “Considering the nature of the offence, I am not inclined to extend the benefits of the Probation of Offenders Act to the the appellant. Regard being had circumstances, I find the sentence to be adequate and proper. The impugned judgment and order of the learned court below dated 25.1.2006 in 2(C)CC Case No.31 of 1994 in respect of Babuli is affirmed. The judgment and order in respect of appellant Padmanabha is set aside.” totality of the to 8. The incident had taken place in the year 1994 and that point in time the petitioner was aged about 36 years and more than 30 years have been Page 5 of 6 passed in between and much has changed. Therefore, no fruitful purpose would be served by sending the petitioner to suffer incarceration at this belated stage rather it would be harsh. The petitioner is a first time offender and was not found wanting for misuse of the concession of bail during the trial or at appellate stage. Therefore, I am of the considered view that the petitioner is entitled for the benefit of Probation of Offenders Act. 9. Accordingly, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months.
Decision
10. The Criminal Revision is partly allowed and accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th of October, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2024 14:17:45 Page 6 of 6