The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.82 of 2002 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Umesh Chandra Das ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Bibhuti Ranjan Mohanty & Mr. Bikram Keshari Raj, Advocates For the Respondent : Mrs. Sarita Maharana, ASC CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.07.2025 : Date of Judgment: 31.07.2025 S.S. Mishra, J. The sole appellant in the present Criminal Appeal has challenged the judgment of conviction and order of sentence dated 30.09.2002 passed by the learned Additional District & Sessions Judge: (Fast Track Court): Baripada, District- Mayurbhanj in S.T. Case No.9/56 of 2002, whereby the appellant has been convicted for the offence punishable under Section 379 of the IPC and has been sentenced to undergo R.I. for one year. 2. Heard Mr. Bibhuti Ranjan Mohanty and Mr. Bikram Keshari Raj, Advocates appearing for the appellant and Mrs. Sarita Maharana, learned Additional Standing Counsel appearing for the Respondent-State. 3. The prosecution case in terse and brief is that on 08.09.1997 at about 8.30 A.M., one Kartik Chandra Jena orally complained in Basta Police Station that, he has been working as helper in the pressed leaf plates factory of Saroj Mohanty, P.W.3. He has also stated that Narayana, P.W.2, Sudarshan, Biswanath and Abhaya were also working in the said factory. On that day at about 4.30 A.M., the present appellant came in a jeep along with 4 to 5 other persons being armed with knives and enquired about P.W.3. Since there was weapon in their hands, the informant could not protest. The appellant along with his associate entered into the room of Saroj, P.W.3 and forcefully brought him out of the room by dragging and took him and a tin box containing cash and documents in that jeep. Finding no other way, the informant intimated Page 2 of 9 this fact to Jayanta Patnaik, P.W.4. Accordingly, Betnoti P.S. Case No.85 of 1997 was registered against the appellant. 4. The investigation of the case was carried out by P.W.7 and the charge sheet was filed in the case against three accused persons including the present appellant. The charges were framed against all the three accused persons for the offences punishable under Sections 364/ 379/34 of the IPC. 5. The appellant took a stance of complete denial the involvement in the case and has put-forth the defence that he along with his brother-in- law Saroj Mohanty, P.W.1 and his co-brother Jayanta, P.W.4 established the partnership business. In the beginning, he has invested Rs.40,000/-. There was dispute between all the three partners regarding the management. Therefore, both Saroj and Jayanta removed him from the management. When he requested them to refund the amount he had invested, they denied the same, rather led to filing of the civil suit before the learned Civil Judge (Senior Division), Baripada for recovery of the amount. Page 3 of 9 6. On 07.09.1997, P.W.3, Saroj came to his village Sasan for settlement of the dispute. On that day, a false narrative has been created to implicate the appellant in a false case. Accordingly, the case has been filed against the appellant. 7. The prosecution examined seven witnesses to prove its case. P.W.1 was the informant Kartik Jena, Narayan Jena, P.W.2 was also another person working in the factory, P.W.3 is Saroj Mohanty is the brother-in-law of the appellant and the partners in the leaf factory. P.W.4, Jayanta Patnaik is another brother of Saroj, P.W.3 and was one of the partners in the business. P.W.5 was the witness to the seizure of the tin box containing some articles. P.W.6 was the seizure witness, who is an A.S.I. of Police, P.W.7 was the Investigating Officer of the case. 8. The appellant, in order to establish its defence, has examined his wife as D.W.1. The learned trial Court, after analyzing the entire evidence brought on record by the prosecution and the defence, arrived at a conclusion that the prosecution could not prove its case beyond all reasonable doubts in so far as the offence under Section 364/34 of the Page 4 of 9 IPC are concerned. Hence, acquitted all the accused persons of the said charges. 9. Equally, in so far as the offence punishable under Section 379 of the IPC is concerned, the learned trial Court has also acquitted the other two accused persons, who have faced the trial with the appellant. However, the learned trial Court found the present appellant guilty of the offence punishable under Section 379 of the IPC and accordingly, sentenced him on that count. The learned trial Court, in its conclusion has arrived at the finding, which reads as follows: “22. For establishing the charge under Sec. 379, IPC, prosecution has to establish: i) that the property in question is movable property; ii) that such property was in possession of a person; iii) that the accused removed such property whilst in possession of that person; iv) that he did so without consent of that person; v) that he did so in order to take the same out of that person; and vi) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself. In the present case, the trunk containing some documents was in possession of Saroj. Accused Umesh removed the same without his consent. It is patent from the conduct of the accused Umesh that he took the same intending to remove the valuables which were in the trunk. If the documents would have been lost, certainly Saroj would have been sustained loss. Further accused Page 5 of 9 Umesh expected keeping of money by Saroj in the box. He took it with the intention of taking away the money, if any. Thus, prosecution has succeeded in establishing the ingredients of section 379, I.P.C. 23. In the result, prosecution has failed to bring home the charge U/S. 364 IPC. against all the accused persons and also failed to bring home the charge U/S. 379, IPC against accused Ashis Ku. Ray and Malick Jalal and accordingly, they are acquitted of the said offences U/S. 235(1), Cr. P.C.. But accused Umesh is alone found guilty U/S. 379, I.P.C. and is convicted thereunder.” 10. The appellant being singularly convicted for the offence as mentioned above, has filed the present Criminal Appeal against conviction as well as sentence awarded to him. 11. The learned trial Court has heavily relied upon the testimonies of P.Ws. 3 and 4. Both P.Ws. 3 and 4 admittedly were the partners of the appellant in the business. The pendency of the civil suit for recovery has been filed by the appellant against P.Ws.3 and 4 is also not disputed. The relationship between P.W.3 and P.W.4 is also not disputed. P.Ws. 1 and 2 are the workers under P.W.3. The nature of the witnesses deposed against the appellant as prosecution witnesses clearly indicates that all the witnesses are largely interested witnesses. There was a dispute in the partnership business. The appellant, P.W.3 and P.W.4 are closely related Page 6 of 9 and were running partnership business. Since they fall apart the present case appears to have been filed besides civil disputes. 12. The learned trial Court, in analyzing the evidence on record, disbelieved the major part of the prosecution story by discarding the testimonies of the prosecution witnesses to the effect that the appellant has forcefully attempted to kidnap P.W.3. The subsequent part of the prosecution story regarding taking away the tin box from the shop is believed by the learned trial Court on the appreciation of the evidence based on record. In that regard, it is apparent on record that none of the witnesses could clearly come out in their evidence to disclose what was indeed contained in the said tin box. P.Ws.1 and 3, although stated that the tin box was containing some cash and documents, however, nothing indeed could come on record to suggest that, what were the documents those were kept in the tin box and what was the cash amount contained in the box. Both the seizure witnesses i.e. P.Ws. 5 and 6 also not disclosed in their evidence that what was containing in the said tin box. Rather, P.W.7, the I.O. of the case, in his cross-examination, has stated in paragraph-3 that “Saroj has not stated before me that Rs.10,000/- Page 7 of 9 (Rupees ten thousand) was in that tin box and the accused persons demanded Rs.50,000/- (Rupees fifty thousand). So no wrongful loss caused to Saroj (P.W.3) and also no wrongful gain to himself (appellant).” 13. The evidence of P.W.7 vis-a-vis the evidence of P.Ws. 5 and 6 are very clear that there was no valuable document inside the said tin box and even the alleged theft amount is also not coming clear from the testimony of the witnesses. In the light of the aforementioned facts, if the ingredients of Section 379 of the IPC are looked into, it is apparent that in absence of the clear evidence regarding the nature of the property allegedly stolen, no offence under Section 379 of the IPC could be made out. 14. However, contrary to the same, the learned trial Court, in paragraph-22 of the impugned judgment as reproduced above, has arrived at a conclusion that the appellant is guilty of the offence punishable under Section 379 of the IPC. 15. Therefore, I have no option rather to disagree with the learned trial Court in so far as that part of the finding is concerned. Accordingly, Page 8 of 9 without any hesitation, I hold that the prosecution has miserably failed to prove the charge under Section 379 of the IPC beyond all reasonable doubts. 16. In that view of the matter, the impugned order 30.09.2002 passed by the learned Additional District & Sessions Judge: (Fast Track Court): Baripada, District- Mayurbhanj in S.T. Case No.9/56 of 2002 is liable to be set aside and the appellant is entitled to acquittal. 17. The appellant is acquitted from all the charges and the bail bond furnished by the appellant stands discharged. 18. The Criminal Appeal stands allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 31st July, 2025. Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 01-Aug-2025 19:38:45 Page 9 of 9