The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.639 of 2011 (In the matter of an applications under Sections 401 & 397 of the Criminal Procedure Code, 1973) Habib Mohammad ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Tirtha Kumar Sahoo (Amicus Curiae) For the Opp. Party : Mr. P.K. Maharaj, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.05.2024 : Date of Judgment: 20.06.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 r/w Section 397 of Cr.P.C. is directed against the judgment and order dated 15.07.2008 passed by the learned Sessions Judge, Dhenkanal in Criminal Appeal No.43 of 2006, whereby the judgment of conviction and order of sentence passed by the learned Sub-Divisional Judicial Magistrate, Dhenkanal in G.R. Case No.618 of 1997 (Trial Case No.277/2004) has been confirmed. 2. The Petitioner was subjected to prosecution in Dhenkanal Town P.S. Case No.175 of 1997 registered under Sections 406/ 411 of the I.P.C. 3. The prosecution case in brief is that, the Informant Bijaya Kumar Das handed over an old Bajaj Chetak Scooter bearing Registration No. PBW-103 to the present petitioner for repairing. After repairing the scooter, the petitioner allegedly sold the same to one Purna Chandra Behera. It is alleged that the informant went to the village of accused Purna Chandra Behera, who told that he had purchased the said Scooter from the petitioner and refused to return the same. Basing upon the said incident, F.I.R. was lodged in Dhenkanal Town Police Station, which was registered as Dhenkanal P.S. Case No.175 of 1997. After completion of investigation, charge-sheet was submitted against the petitioner and another accused person for the offences punishable under Sections 406/411 of the I.P.C. The learned trial court framed the charges against them and they were put to trial. Page 2 of 8 4. To bring home charges, the prosecution had examined as many as nine witnesses and six documents were exhibited. P.Ws.1, 2 and 4 were the brothers of the informant, P.W.3 was the informant. P.Ws.5 & 9 were the independent witnesses, P.Ws.6 & 7 were the witnesses to the seizure, P.W.8 was the Investigating Officer. The plea of defence was that of complete denial. In proof of the defence, no witness had been examined. 5. The learned trial Court analyzed the entire evidence on record and found that the co-accused, namely, Purna Chandra Behera was not guilty of the offence under Section 411 of the I.P.C and acquitted him therefrom. But the learned trial Court found the petitioner guilty for the offence punishable under Section 406 of I.P.C. and sentenced him to undergo R.I. for one year and to pay fine of Rs.1,000/- (Rupees one thousand), in default to undergo further R.I. for one month. 6. The judgment of conviction and order of sentence dated 08.05.2006 passed by the learned Sub-Divisional Judicial Magistrate, Dhenkanal in G.R. Case No.618 of 1997 (T.R. Case No.277 of 2004) was called in question by filing Criminal Appeal No.43 of 2006 before the Court of the learned Sessions Judge, Dhenkanal, by the petitioner. However, the appeal failed. Page 3 of 8 7. The petitioner has challenged the judgment/order of conviction and sentence passed by both the Courts below in the present Criminal Revision Petition. 8. Heard Mr. Tirtha Kumar Sahoo, learned Amicus Curiae for the petitioner and Mr. P.K. Maharaj, learned Additional Standing Counsel for the State. 9. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. Two accused persons were put to trial in the instant case. The present petitioner was prosecuted for the alleged offence punishable under Section 406 of the I.P.C. whereas the co-accused person, namely, Purna Chandra Behera was prosecuted for the offence punishable under Section 411 of the I.P.C. 11. To bring home charges against the accused persons, prosecution examined nine witnesses. P.W.3 was the informant whereas P.Ws.1, 2 & 4 were the brothers of P.W.3. P.Ws.5, 6, 7 & 9 were the independent witnesses Page 4 of 8 whereas P.W.6 was the I.O. of the case. The present petitioner had examined one Sarat Chandra Padhi in his defence. 12. Since the co-accused Purna Chandra Behera had been acquitted for the offence under Section 411 of the I.P.C. by the learned trial Court, the matter rests there. The present petitioner was convicted by the learned trial Court for commission of offence punishable under Section 406 of the I.P.C. The basis for the conviction of the petitioner for commission of offence under Section 406 of the I.P.C. was the evidence of P.Ws.1, 2, 3 & 4. P.W.1 had stated that his cousin Prasant Kumar Mishra had given him the scooter to get it repaired. He handed over the scooter to the present petitioner for repairing. This aspect of the matter had been amply proved from the unshaken testimonies of P.Ws.1, 2 & 4 and the other independent witnesses had also supported the prosecution story. The present petitioner had disclosed that he had received Rs.5,000/- for purchasing certain parts of the scooter. The learned trial Court had also relied upon the details in the contents of the F.I.R., which was proved on record. Therefore, the factum of entrustment of the scooter to the present petitioner had been proved beyond any reasonable doubt on the basis of consistent evidence of all the witnesses. Page 5 of 8 The learned trial Court has rightly come to the conclusion that the evidence insofar as the offence under Section 406 of the I.P.C. has been fully proved on record. The learned trial Court returned the finding as under: “If the aforesaid evidence is carefully examined, then there is nothing to disbelieve the statements of the prosecution witnesses regarding seizure of the scooter and the hand receipt from the possession of the accused Pruna Chandra Behera. There is adequate evidence that accused Md. Habib had sold away the scooter given by the informant to him for repairing to accused Purna Chandra Behera. Defence has failed to establish any hostility or criminal relationship between the informant and the accused persons for launching false prosecution against them. On the other hand the evidence from the side of the prosecution has not been discredited by the defence in any manner except denial of the allegations. Therefore, I come to conclude that accused Md. Habib being entrusted with a Bajaj Chetak Scooter bearing Regn. No. PBW 103 by the informant for repairing in his garage was sold away by him to accused Purna Chandra Behera and thereby he committed the offence of criminal breach of trust which is punishable U/s.406 of the I.P.C.” 13. Therefore, no fault could be found in the judgment of the learned trial Court insofar as the recording of the conviction against the petitioner under Section 406 of the I.P.C. is concerned. Equally, the leaned trial Court was absolutely correct in acquitting the co-accused persons for the offence under Section 411 of the I.P.C. because the scooter was admittedly entrusted to the petitioner, who appears to have sold the same to the co-accused. Therefore, the scooter was definitely not a stolen property, which was acquired by the Page 6 of 8 co-accused persons. The petitioner had taken up the matter to the appellate court by filing Criminal Appeal No.43 of 2006 and the appellate court has rightly dismissed the appeal affirming the conviction and sentence passed by the trial Court. The Appellate Court’s judgment is a well appreciated and reasoned one. Therefore, I am not inclined to interfere in the impugned judgment. 14. Since the instant case pertains to the year 1997, much has changed by now, I am of the considered view that sentencing the petitioner and sending him to custody shall serve no purpose. The present case is rather squarely covered by the judgment of this Court passed in the case of Pathani Parida and another vs. Abhaya Kumar Jagadev Mohapatra reported in 2012 (Supp.-II) OLR - 469. Before the trial Court, the petitioner had prayed for the benefit of the Probation of Offenders Act. However, the same was turned down by the Court below inter alia stating as under:- “The convict assaulted P.W.1 by means of a knife causing three incised wounds on his person. Considering the nature and gravity of the offence as well as the age of the convict, I am not inclined to release the convict under any of the provisions of Probation of Offenders Act, even if no previous conviction has been proved to his credit.” Page 7 of 8 15. In my considered view, the trial Court ought to have extended the benefit of the Probation of Offenders Act to the petitioner in the facts of the present case. 16. In view of the aforementioned, the conviction of the petitioner for offence punishable under Section 406 of I.P.C. is upheld, but instead of sentencing the petitioner to suffer incarceration, this Court directs that the petitioner be released under Section 4 of the Probation of Offenders Act, 1958 for a period of one year on his executing a bond of Rs.5,000/- (Rupees five thousand) with one surety of the like amount to appear and receive the sentence when called upon during such period. During the probation period the petitioner shall keep peace and maintain good behavior and he shall also remain under the supervision of the concerned Probation Officer during the aforesaid period.
Decision
17. The CRLREV is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 20th June, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Jul-2024 10:15:13 Page 8 of 8