The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.561 OF 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Sanjay Kumar Dey ……. Petitioner -Versus- State of Odisha ……. Opposite Party
Legal Reasoning
For the Petitioner : Mr. P. K. Routray, Advocate For the Opp. Party : Mr. S. Patra, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 01.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Section 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 21.04.2011 passed by the learned Sessions Judge, Balasore in Jail Criminal Appeal No.16 of 2011, whereby the judgment of conviction and order of sentence dated 11.03.2011 passed by the learned S.D.J.M., Balasore in C.T. Case No.635 of 2007 has been confirmed, however, the order of sentence has been modified while partly allowing the appeal. Heard Mr. P.K. Routray, learned counsel for the petitioner and Mr. S. Patra, learned Additional Government Advocate for the State. 2. The prosecution case in brief is that, on 22.04.2007 at about 8.30 P.M., one Ananta Mohanty submitted a written report inter alia alleging that during temporary absence of his family members, the burglars entered into his house by breaking the lock and front grill of the gate and took away two golden necklace, two silver paunji, one gold finger ring, one torch, two pants and a cash of Rs.20,000/- from the Godrej Almirah. When his wife focused the torch light, she saw one Sanjay Dey running from her house. When she called him, Sanjay ran away without listening to her. On this complaint, Baliapal P.S. Case No.60 of 2007 was registered and investigation was carried out. During investigation, only Rs.20,000/- could be seized out of all the stolen items from the accused- petitioner. Page 2 of 6 3. After completion of investigation, the petitioner was charged for offence punishable under Sections 457/380 of I.P.C. and he was put to trial. 4. To bring home the charges, the prosecution had examined 9 witnesses. P.W.1 was the informant in this case. P.W.2 is the mother of the informant whereas P.W.3 is the wife of the informant. P.Ws.4, 5, 6, 7 and 8 claimed to be the witnesses to the occurrence. P.W.9 was the Investigating Officer. 5. Heavily relying upon the testimonies of the informant (P.W.1) and his wife (P.W.3), the learned trial Court believed the eye witness count in the instant case and went on to record that the petitioner was found guilty of house trespass at night by breaking open the lock of the house of the informant and committed theft of Rs.20,000/- from the Almirah of the informant. Hence, the petitioner was convicted for offence punishable under Section 457/380 of I.P.C. The petitioner was accordingly sentenced to undergo R.I. for two years for offence under Section 457 of I.P.C. and to undergo R.I. for three years for offence under Section 380 of I.P.C. Page 3 of 6 The petitioner was also imposed a fine of Rs.1,000/- and in default, sentence him to undergo R.I. for one month more. 6. The petitioner assailed the judgment of conviction and order of sentence passed by the learned Court below dated 11.03.2011 by filing Jail Criminal Appeal No.16 of 2011 before the Court of the learned Session Judge, Balasore. The learned Session Judge, Balasore vide its judgment dated 21.04.2011 confirmed the conviction inter alia returned the following findings:- <5. This is a typical case where the culprit was identified while decamping with the stolen articles. That apart, the wife of the informant had known the accused even prior to her marriage, as he belongs to a neighbouring village of her father’s village. Not only P.W.3, the wife of informant, identified the present convict but also called him by his name, but he ran away. The mother of informant (P.W.2) who was also present with her daughter-in- law saw Sanjay Dey coming out through the gate of their house carrying a polythene bag on his shoulder and being asked, he replied that he had come to drink water. P.W.3 has also deposed that when they returned home two persons were coming out from the gate of their house and when they enquired, they replied that they had come for drinking water and when she focused the torch light found Sanjay Dey was one of them and when she asked him, he ran away. Further evidence of P.W.3 discloses that the other person was carrying the polythene bag on his back and after they entered inside the house found the lock of the grill gate to have been broken and also the lock of the almirah was opened and lock of the dressing table was broken and they found scattering of clothes in the room and on verification found missing of two pieces of gold necklace, one gold ring and two numbers of silver PAUNJI, one torch, two Page 4 of 6 the house helped pants and cash Rs.20,000/- were missing from their house. The oral evidence of P.Ws.2 & 3 about witnessing the present convict while coming out from the investigating agency in tracing out the culprit. The name of the convict was reflected on the body of the F.I.R. which was lodged within one and half hour of the occurrence and it is not an after thought. Recovery of Rs.20,000/- from the house of accused gives a seal of finality to the truth that the accused being witnessed while coming out from the house of informant. The recovery of the currency notes, that too exactly Rs.20,000, which was stolen from the house of informant makes the accused accountable which he signally failed. The trial Court has assigned cogent reasons for believing the statements of P.Ws 2 & 3, who had witnesses the present convict, while coming out from their house. The I.O. (P.W.9) categorically deposed about seizure of cash of Rs.20,000 from the house of accused and according to him, the accused gave recovery of the cash and brought the same from his house.= 7. I have perused the evidence of P.Ws.1 and 3 and found corroboration of the said testimony with the evidence of occurrence witnesses i.e. P.Ws.4, 5, 6, 7 and 8. I find no reason to disagree with the findings recorded by the Courts below insofar as recording of guilt of the petitioner for offence punishable under Sections 457/380 of I.P.C. is concerned. Therefore, the Revision Petition fails insofar as the conviction part is concerned. However, coming to the sentence awarded by the Court below, I am of the considered view that the petitioner is entitled to leniency. The Appellate Court had reduced the substantive sentence from Page 5 of 6 three years R.I. to one year R.I. The petitioner was arrested on 24.04.2007 and was enlarged on bail on 05.07.2007. After the Appellate Court pronounced the judgment on 21.04.2011, the petitioner was taken into custody. Therefore, he filed the Jail Criminal Appeal. Eventually, on 29.07.2011, the petitioner was enlarged on bail. Therefore, as an Under Trial Prisoner and subsequently as a convict, the petitioner had roughly undergone five months imprisonment without remission. Sending the petitioner to custody at this stage would serve no purpose. Therefore, the sentence imposed on the petitioner by the Appellate Court is further modified to the sentence already undergone by the petitioner, however, the petitioner is imposed a fine of Rs.10,000/-, in default, to undergo S.I. for fifteen days. The amount to be deposited by the petitioner shall be disbursed to the informant as compensation under Section 357 Cr.P.C. 8. Accordingly, the CRLREV is disposed of in the aforementioned terms. ……………… 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: 01-Aug-2024 10:31:54 Page 6 of 6