The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.541 of 2013 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Bhola @ Manoranjan Panda and others ……. Petitioners -Versus- State of Odisha ……. Opposite Party For the Petitioners : Mr. Bikram Chandra Ghadei, Advocate Mr. Tirtha Kumar Sahu, Advocate (Amicus Curiae)
Legal Reasoning
For the Opp. Party : Mr. B. K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. In the present Criminal Revision Petition, four petitioners have challenged the judgment and order dated 20.04.2013 passed by the learned Additional Sessions Judge, Baripada in Criminal Appeal No.19/67 of 2010-09 and Criminal Appeal No.5/59 of 2010-09, whereby the judgment of conviction and order of sentence passed by the learned CJM-cum-Assistant Sessions Judge, Baripada in S.T. Case No.13/28 of 2008 has been confirmed. 2. The prosecution case, in brief, is that, on 27.03.2005, one Subash Jena lodged a report before the O.I.C., Badasahi P.S. alleging therein that, on 26.03.2005, on the day of Holi, when the informant (P.W.1) was going to purchase goat, on the way of Kochilakhunta, the accused persons, namely, Bala Panda and Kunkuru, asked him to get down from the bicycle and pay them Rs.100/- to drink Beer. When the informant refused, the accused persons abused him in filthy languages saying <Gandi Moreibu= and threw his baskets and sacks over the auto-rickshaw of Tika. After fervent pleadings, they left him. The informant collected his baskets and sacks from Tika and proceeded towards Kuliana. But, to his utter surprise, all the accused persons followed him in the said auto- rickshaw up-to Baghamara canal bridge and the accused, Bala Panda, pulled him down from his bicycle and abused him 8Sala Maa Giha9 and Page 2 of 9 threw his baskets and sacks and attacked on his face by means of a beer bottle and Kunkuru dealt kicks to him sitting in the auto-rickshaw, as a result of which, the informant fell down on the ground. Thereafter, the petitioner No.1 snatched away Rs.10,000/- from the pocket of the informant and the accused Kunkuru was shouting to kill him and threw his dead body in the canal water. The informant thereafter went to Barasahi hospital for his treatment. On 27.03.2005, the informant lodged an F.I.R. before the O.I.C., Barasahi Police Station to initiate a criminal prosecution against the accused persons. 3. On the basis of submission of the written report, an F.I.R. was registered at Badasahi P.S. being Badasahi P.S. Case No.74 of 2005 against the petitioners and investigation was taken up by the local police. After completion of investigation, charge-sheet was filed. The petitioners, along with other accused persons, were charged for the offence under Section 395 of I.P.C. and were put to trial. 4. In order to bring home the charges, the prosecution has examined 9 witnesses out of 10 witnesses named in the charge-sheet. Out of whom, P.W.1 was the informant, whereas P.W.7 was the Medical Officer who Page 3 of 9 examined P.W.1. P.W.9 was the I.O., P.W.2 is the wife of P.W.1. P.W.3 was the witness who deposed that she had advanced Rs.6,000/- to P.W.1 to supply mutton to her. P.W.4 was the scribe of the report of P.W.1 and P.Ws.5, 6 & 8 were the seizure witnesses. 5. Relying upon the testimony of the informant (P.W.1) which found corroboration with the testimony of all other witnesses, the learned trial Court came to the conclusion that all the accused persons are guilty for the offence punishable under Section 395 of the I.P.C. Accordingly, the accused persons were sentenced to undergo R.I. for five years and to pay a fine of Rs.1,000/-, in default to further undergo R.I. for two months. 6. All the five accused persons approached the Appellate Court by filing three separate Appeals. The present petitioner Nos.1, 2 and 3 had filed common Criminal Appeal No.5/59 of 2010-09 whereas petitioner No.4 filed a separate Appeal being Criminal Appeal No.19/67 of 2010- 09. The co-accused, who is not the petitioner to the present proceeding, namely, Kunkuru @ Rajib Kumar Kar, preferred a separate Appeal being Criminal Appeal No.16/63 of 2010-09. During pendency of the Appeal, the said co-accused died on 24.03.2012, therefore, the Appeal of the said Page 4 of 9 co-accused person stood abated. The Appeal filed by the petitioners stands dismissed on merit by the Appellate Court by the common impugned order. Therefore, the present petitioners, having failed in their Appeal, have approached this Court by filing the present Revision Petition, inter alia, assailing the judgment of conviction and order of sentence passed against them for the offence punishable under Section 395 of I.P.C. 7. Heard Mr. Bikram Chandra Ghadei, learned counsel for the petitioners, and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 8. Learned counsel for the petitioners has argued that, in the instant case, the offence under Section 395 of I.P.C. is not attracted as the ingredients are not satisfied, because there are only four petitioners. It appears that the fact regarding the co-accused person, who had preferred a separate Appeal, during pendency of his Appeal, had died, appears to have escaped notice of the learned counsel appearing for the petitioners. In fact, there were five accused persons who had committed the alleged crime and also faced the trial. The learned trial Court has convicted all the Page 5 of 9 five accused persons for offence punishable under Section 395 of I.P.C. Therefore, the contention of learned counsel for the petitioners, that no case of 395 of I.P.C is made out, rather it would be a case of 392 of I.P.C., holds no water. Accordingly, it is rejected. On merit, it is seen that the Courts below have meticulously dealt with the evidence on record. By analyzing and appreciating the evidence in the right prospective, the Court has come to the conclusion that the accused persons are guilty of the offence of dacoity. Relevant would be to reproduce the findings returned by the Appellate Court. Paragraphs-11 & 12 of the said judgment read as under:- <11. On thorough scrutiny of the evidence of the P.Ws. it is found that the evidence of the informant (P.W.1) finds corroboration from the evidence of P.Ws.2, 3, and 7. P.W.2, the wife of the informant, categorically stated that her husband had gone to purchase goats and had taken Rs.10,000/- with him on the date of occurrence. During cross-examination she has stated that her husband had taken Rs.4,000/- from the house and one Rajabati Modhei had paid Rs.6,000/- to her husband for supply of mutton. P.W.3 in his evidence also fully corroborated the testimony of P.W.1 to the effect that she had paid Rs.6,000/- for supply of mutton. P.W.1 during cross-examination has admitted that he has stated before the police that he had taken money from one Rajabati Modhei for supply of mutton. Said Rajabati is none else but the mother of Ranjit Naik. P.W.1 has categorically stated Page 6 of 9 to is not applicable that due to assault of the accused persons he did not sustain any injury and this testimony of P.W.1 finds corroboration from the evidence of P.W.7, the doctor. Though P.Ws.1 to 3 have been cross-examined at length nothing substantial has been elicited from their mouth to dis-believe their testimony. The evidence of P.Ws.1 to 3 is consistent to each other and inspires confidence. There is nothing on record to dis-believe their testimony. 12. In course of argument the learned counsels for the appellant only argued before me on one point i.e. the prosecution suppressed the first F.I.R. lodged by the informant. In support of his contention he relied on a decision reported in 1994 (I) OLR page 118. The decision relied on by the learned counsel for the facts and appellant circumstances of the present case. There is no evidence on record to show that the informant had report or had given any lodged any written information before the police prior to the lodging of Ext.1. There is only one discrepancy in the evidence of P.W.1 with regard to the time of lodging of the F.I.R. It appears from Ext.1 that it was lodged on the next day of the occurrence but the informant in his evidence has stated that he lodged the F.I.R. on the same date of occurrence. But this contradiction itself is not a ground to dis-believe the prosecution case and to hold that the prosecution suppressed the first F.I.R. When the witnesses are deposing in the Court 3 to 4 years after the occurrence naturally there is likely to occur some discrepancy in their testimonies. Here in the present case nothing has been elicited from the mouth of the P.Ws. to show that the informant had lodged any written report other than the Ext.1 and that written report was suppressed by the prosecution.= the 9. I have perused the evidence brought on record by the prosecution and analyzed the impugned judgments in the light of the said evidence. I Page 7 of 9 find no reason to interfere with the impugned judgments and order passed by the Courts below because the testimony of P.Ws.1, 2, 3 and 7 are consistent and corroborating to each other. All the witnesses have sustained lengthy cross-examination but the defence could not elucidate anything to create a doubt on the prosecution version. Therefore, there is no reason to doubt the evidence of P.W.1 which finds corroboration with the evidence of all other witnesses. In view of the aforementioned, I am not inclined to interfere with the judgments and orders passed by the Courts below convicting the present petitioners for the offence under Section 395 of I.P.C. 10. At this stage, Mr. Ghadei, learned counsel for the petitioners, submits that this Court should take a lenient view in sentencing the petitioners and request for modification of the sentence order passed by the Courts below. He submits that the incident had taken place way back in the year 2005 and at that point of time, the petitioners were very young. In between, two decades have already passed. The petitioners are well settled and leading a peaceful life. The incident had taken place during the Holi festival and the petitioners have indulged in committing Page 8 of 9 the crime to extract money from the informant in an inebriated condition. At young age, the petitioners had not realized the consequence of the same. Therefore, they should not be treated as hardened criminals. 11. Taking into consideration the aforementioned submissions made by learned counsel for the petitioners, I am of the considered view that the sentence awarded to the petitioners is liable to be modified. Accordingly, the sentence awarded by the Courts below is modified and each of the petitioners are sentenced to undergo R.I. for two years and pay a fine of Rs.1,000/-, in default, to undergo R.I. for two months. The Under Trial Period as well as the period they have already undergone during pendency of the Appeal shall be set-off. 12. With the aforesaid modification, the Criminal Revision Petition is partly allowed. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 09-Aug-2024 12:12:01 Page 9 of 9