The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.66 of 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Jaspal Singh Saluja ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Kaustuva Mohanty, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 19.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 29.05.2009 passed by the learned Additional Sessions Judge, Nuapada in Criminal Appeal No.24 of 2007, whereby the judgment of conviction and the order of sentence dated 09.10.2007 passed by the learned Chief Judicial Magistrate, Nuapada in G.R. Case No.19 of 2004/Trial No.87 of 2004 has been confirmed. 2. The prosecution case is that, the complainant in the present case was working as a Watcher in the Irrigation Department in respect of the Camp site situated in village Chipajhar, within the boundary of which there were some iron angles. On 15.01.2004, in the mid-night, when the complainant woke up for urination, heard some cutting sound of iron angle from the Camp site. So, he called some villagers and rushed to the camp site along with them and found that three persons were cutting the iron angles by means of ari pati. Noticing their arrival, two persons fled away from the spot. However, one person namely accused Paramjit @ Gaju was caught red-handed by them along with the cut iron angles and ari pati. Subsequently, other accused persons came to their village by their motor cycle. This matter was reported by the complainant before the O.I.C., Nuapada Police Station, who had registered the case. On his direction, the A.S.I. Mr. N. Parida took up the investigation and after completion of investigation, he submitted the charge sheet in the present case. Page 2 of 8 3. During pendency of this case, at the stage of framing of charge, accused Rabi Bag on his own admission was convicted and was sentenced to undergo R.I. for a period of five months under Section- 379/34 of the IPC. However, the rest three accused persons faced their trial jointly. Later, the accused Ganesh Majhi defaulted and he could not be apprehended despite issuance of N.B.W.A. against him since long and ultimately, the case was split up against him. Consequently, the present two accused persons faced their trial in the original case. 4. To bring home the charges, the prosecution had examined as many as 7 witnesses and 3 documents were exhibited. The plea of defence was that of complete denial. 5. Heard Mr. Kaustuva Mohanty, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 6. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and meticulously evaluated the evidence on record. Page 3 of 8 7. Two accused persons including the present petitioner were subjected to prosecution for the alleged charges against them for the offence punishable under Section 379/34 of the IPC. 8. The prosecution examined 7 witnesses. P.W.5 was the complainant whereas P.Ws.1 and 6 were the seizure witnesses. P.Ws.2, 3 & 4 were the villagers who had been examined by the prosecution to substantiate the circumstances against the accused persons. P.W.7 was the Investigating Officer. 9. The trial Court by relying upon the testimony of P.W.5 coupled with the corroborative evidence of P.Ws. 2 & 4 came to the conclusion that the accused persons are guilty of the offence of theft. Accordingly, they were convicted for the offence punishable under Section 379/34 of the IPC. The accused persons were sentenced to undergo R.I. for two years on that count. 10. Being aggrieved by the judgment of conviction and the order of sentence passed by the learned Chief Judicial Magistrate, Nuapada in G.R. Case No.19 of 2004 dated 09.10.2007, the petitioner and the other Page 4 of 8 convict accused filed Criminal Appeal No.24 of 2007 before the Court of the learned Addl. Sessions Judge, Nuapada. 11. The Appellate Court vide its judgment dated 29.05.2009 has dismissed the appeal. 12. Having failed in his appeal made to the learned Addl. Sessions Judge, Nuapada, the present petitioner has filed the instant Criminal Revision Petition, inter alia, assailing the judgment of conviction and the order of sentence passed by the learned Courts below. 13. The learned trial Court by taking into consideration the unshaken and unimpeachable evidence of the complainant which draws corroboration from other witnesses has convicted the petitioner. 14. The defence plea was also dealt with by the learned Trial Court and it returned the following finding: “12. The learned defence counsel submitted that, in view of the aforesaid evidence of I.O., P.W.5 has no locus standi to lodge F.I.R. against the accused persons and resultantly, his presence on the spot appears to be doubtful, for which his evidence is not worth acceptance. However, the learned A.P.P. assailed the contention of his counter-part. On this context, I am of opinion that, as it is borne out from the evidence of P.W.7-the I.O., he has investigated the case in a perfunctory manner. If to his satisfaction, the informant was not the Chowkidar of the camp site at the relevant time, there was no reason Page 5 of 8 as to why he did not examine any officials of the Irrigation Department concerned so as to ascertain if at all, any person was appointed for watching the camp site of the department at the relevant time. Moreover, in that regard, substantial cross-examination has not been made by the defence either to P.W.7 or to P.W.5. Consequently, when on the basis of the F.I.R. lodged by P.W.5, the criminal law was set into motion by the competent authority resulting in submission of charge-sheet against the accused persons, I find no reason to disbelieve the version of P.W.5 that he was the chowkidar of the camp house of the Irrigation Department at the relevant time. On that score, the evidence of P.W.5 cannot be discredited nor the defence can make any capital out of the perfunctory investigation conducted by P.W.7, in view of the settled position of law that any infirmity or defect in investigation by the police cannot lead to a conclusion that, the accused is innocent and accordingly, the prosecution case can be discarded, if otherwise the prosecution case is well established against the accused persons by cogent and reliable evidence on record. 13. Next, it was submitted by the learned defence counsel that, the evidence of P.W.5 cannot be believed as it is contradicted with his previous police statement recorded U/s. 161 Cr. P.C. In this regard, no doubt, the defence during cross-examination of P.W.5 suggested him that, his statement in the Court that, he saw the accused persons cutting the iron angle by ari pati and seeing them they fled away and they apprehended Paramjit Singh on the spot, is an improvement over his previous police statement. No doubt, aforesaid statement is a material one, but the defence has not endeavoured to get the alleged omission proved through the I.O. P.W.7, though the defence suggestion was denied by P.W.5. Consequently, the evidence of P.W.5 in the Court remains unimpeachable. Undisputedly, P.W.5 has no animosity against the accused persons. Thus, I find the testimony of P.W.5 is worthy of trust. On a consideration of the evidence of P.W.5 coupled with the corroborative evidence of P.Ws. 2 to 4, as well as the evidence on the factum of seizure of alleged stolen article with weapons of offence from the possession of the accused persons, I am driven to an irresistible conclusion that, the offence alleged against the accused persons has been well made out leaving no manner of doubt.” 15. The aforementioned plea raised by the defence was also reiterated by the petitioner before the Appellate Court. However, the Appellate Page 6 of 8 Court found favour with the finding of the trial Court and dismissed the appeal. 16. I am in complete agreement with the concurrent findings of both the learned Courts below. Therefore, I am not inclined to entertain the present Criminal Revision Petition in so far as the recording of the conviction for the offence punishable under Section 379 of the IPC against the petitioner, accordingly the Revision Petition is dismissed. 17. At this stage, Mr. Mohanty, learned counsel for the petitioner prays that the petitioner should be granted the benefit of the Probation of Offenders Act. 18. Mr. Mohanty, leraned counsel for the petitioner submits that the alleged incident had taken place in the year 2004. At that point of time, the present petitioner was 22 years old. Two decades have passed by in between. The petitioner has already settled in his life. He has no criminal antecedent. Therefore, this is a fit case where this Court should exercise the discretion of granting the benefit of Probation of Offenders Act in favour of the petitioner. Page 7 of 8 19. The petitioner was arrested on 16.01.2004 and was released on bail on 19.01.2004. He has also undergone rigors of the trial and pursued the case for two decades. This Criminal Revision Petition is pending since 2011. Therefore, sending the petitioner to the custody at this belated stage would serve no purpose, rather it would be harsh. 20. Therefore, the petitioner is directed to be released under Section 4 of the Probation of Offenders Act for a period of one year 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.
Decision
21. The Criminal Revision is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 30th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-Aug-2024 18:41:27 Page 8 of 8