The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.302 of 2012 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Prafulla Kumar Pattanaik ……. Petitioner -versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. A.K. Swain, Advocate Mr. J.K. Mohapatra, Amicus Curiae
Legal Reasoning
the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469. 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 Page 7 of 8 the concerned Probation Officer during the aforementioned period of six month.
Arguments
For the Opp. Party : Mr. B. K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 27.06.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed by the petitioner under Section 401 of Cr.P.C. is directed against the judgment and order dated 21.03.2012 passed by the learned Sessions Judge, Nayagarh Circuit at Daspalla in Criminal Appeal No.40/2 of 2007, whereby the judgment of conviction and order of sentence passed by the learned J.M.F.C., Daspalla in G.R. Case No.14 of 2000 (T.R. No.295 of 2000) has been confirmed while modifying the sentence. 2. The case of the prosecution in brief is that on 28.01.2000 at about 9.15 P.M. accused-petitioner forcibly entered into the house of the then Tahasildar, Daspalla by breaking the entrance door. At that time, one Gopinath Nayak, R.I. Sadar and Pradip Kumar Behera were present in Tahasildar’s house. They tried to restrain the petitioner. But notwithstanding their objection, the accused-petitioner straightway went to the bed room, where the Tahasildar was present, by throwing some papers on the bed he asked the Tahasildar to sign on it. It was also alleged that the petitioner threatened the Tahasildar with dire consequences if he would not sign on the papers. When the Tahasildar asked him to meet him in his office on the next day, the petitioner got annoyed and allegedly abused the Tahasildar in obscene languages. Thereafter, the accused-petitioner left the place and while going away again threatened the Tahasildar with dire consequences. After the Page 2 of 8 incident, the Tahasildar lodged an F.I.R. against the petitioner before the Daspalla Police. On the basis of such allegation, F.I.R. was lodged at Daspalla Police Station. After completion of investigation, charge-sheet was submitted against the accused/petitioner under Sections 457/294/506 of I.P.C. and charges were framed against him under those Sections. The petitioner was put to trial. 3. To bring home charges, the prosecution had examined altogether five witnesses and exhibited one document. P.Ws.1 & 3 were the eye witnesses whereas P.W.4 was the informant in the case whereas P.W.5 was the I.O. of the case. F.I.R. was exhibited as Ext.1, i.e., the sole document relied upon by the prosecution. P.Ws.2 & 3 those who were independent witnesses, had resigned from their earlier statements and did not support the prosecution case. Therefore, solely relying upon the testimony of the P.W.4, the learned Trial Court convicted the petitioner for the offence punishable under Section 448 of the IPC and sentenced him to undergo S.I. for a period of six months and to pay a fine of Rs.500/-, in default, to undergo further S.I. for a period of one month. Page 3 of 8 4. The learned Trial Court after analyzing the evidence brought on record by the prosecution arrived at the conclusion that the petitioner was not guilty for the offences punishable under Sections 294/506 of the IPC and accordingly, acquitted him of the said charges. The learned Trial Court returned the following findings: “9. Section 457 I.P.C. deals with lurking house trespass or breaking by night in order to commit an offence punishable with imprisonment. House breaking is described in Section 445 I„P.C. This section emphasizes that if any person commits house trespass by effecting his entrance into the house or any part of it in any of the six ways described under this Section or if being in the house or any part of it for the purpose of committing an offence or having committed an offence there-in, who quits the house or any part of it in any of such six ways, then he is said to have committed house breaking. But in the instant case there is no material on record to prove that the accused effected his entrance into the residence of the informant in any of the such six ways as described U/s.445 I.P.C. Similarly, it is not the case of the prosecution that the accused entered into the residence of the informant having taken precaution to conceal such entrance. Therefore, I am of the firm opinion that the evidence adduced by the prosecution has failed to attract the ingredients of Sec.457 I.P.C. However, on a careful scrutiny it is clearly established from the evidence of the informant that on the relevant date, the accused entered into his residence in order to intimidate or annoy him. His version found corroboration from the evidence of P.W.3 from whose testimony, it is released that on the relevant date the accused had dome to the residence of Tahasildar in the night hours to obtain his signature on a Form. The learned counsel for the defence argued that as P.W.3 has been declared hostile, his evidence should not be taken into account. Bet law is well settled that only because a witness has been declared hostile his entire Page 4 of 8 the evidence should not be outrightly rejected and prosecution can take help of the relevant portion of such evidence. Therefore, I hold that on the relevant date the accused entered into the residence of the informant with an intention to intimidate insult or annoy him. Thus, I hold the accused guilty U/s.448 I.P.C. and convict him thereunder. However, considering the manner in which the convict dared to enter into the house of a Tahasildar who is a respectable and responsible Public Officer of a locality, insisted him to sign on a paper and even challenged him to file any case against him, I am not inclined to release the convict under any provisions of Probation of Offenders Act, rather I not here him on the question of sentence.” 5. The petitioner assailed the judgment of conviction and order of sentence dated 02.03.2012 passed by the learned S.D.J.M., Dasaalla in T.R. No.295/2000 before the Court of learned Sessions Judge, Nayagarh in Criminal Appeal No.40/2 of 2007. The Appellate Court had confirmed the conviction recorded against the petitioner for the offence under Section 448 of the IPC. However, it reduced the sentence to that of S.I. for three months. At the same time, the prayer of the petitioner to extend the benefit of P.O. Act was turned down by the Appellate Court inter alia stating as under: “8. When the learned Court below did not feel it expedient to extend the benefit of Probation of Offenders Act in favour of the convict, he sentenced him to undergo S.I. for six months and to pay a fine of Rs.500/- i.d. S.I. for one month. However, having fact and circumstances of the case, nature and gravity of the offence regard the to Page 5 of 8 and degree of culpability, the quantum of sentence as awarded seems to be more. Hence, in my opinion, a lesser punishment should have been awarded. Section 448, I.P.C prescribes for a term which extend to one year or with fine which may extend to Rs.1000/- (rupees one thousand) or with both and in my opinion, simple imprisonment of three months only will suffice to meet the ends of justice.” 6. 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. 7. I am unable to accept the argument advanced by the learned counsel for the petitioner to doubt the conviction recorded by the Courts below for the offence punishable under Section 448 of the IPC on the ground that there were many contradictions found in the evidence of the witness. The contradictions in the testimony of P.W.4 highlighted by the petitioner have been dealt by the Court below very meticulously and I find no reason to disbelieve the same. Therefore, I am of the considered view that the conviction recorded against the petitioner punishable under Section 448 of the IPC is deserves to be maintained. However, the appellate Court has failed to appreciate the facts and circumstances of Page 6 of 8 the present case while rejecting the prayer of the petitioner for granting the benefit under the P.O. Act. 8. The incident had taken place in the year 2000, while the petitioner was young. More than 24 years have 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. Therefore, I am of the considered view that the petitioner is entitled for the benefit of Probation of Offenders Act as his case is directly covered by the ratio of
Decision
10. The Criminal Revision is accordingly allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Jul-2024 09:46:20 Page 8 of 8