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2006 DIGILAW 140 (ORI)

SAHEB KULU v. STATE OF ORISSA

2006-02-17

A.K.PARICHHA

body2006
JUDGMENT : A.K. Parichha, J. - The Petitioner was one of the accused in Sessions Trial No. 6/2 of 1994 in the Court of Learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Sundargarh charged with the offence u/s 395, Indian Penal Code for committing dacoity in the house of the informant in the night 29.8.1993. After trial, he was convicted for the aforesaid offence and sentenced to undergo R.I. for five years and pay a fine of Rs. 200/- in default to undergo R.I. for three months. The Petitioner challenged the said order of conviction and sentence in Criminal Appeal No. 63/90 of 1994 before the Learned Additional Sessions Judge, Sundargarh. The said appeal having been dismissed and the order of conviction and sentence passed by the Learned Trial Court being confirmed, the Petitioner has filed the present revision to set aside the order of conviction and to set him at liberty. 2. According to Mr. Biswajit Mohanty, Learned Counsel for the Petitioner, the impugned orders of conviction and sentence are unsustainable as the evidence on record do not establish any link between the Petitioner and the incident alleged dacoity. He pointed out that the evidence of P.W. 1 relating to the identification of the Petitioner is not at all reliable as the same is laden with contradictions and improbabilities and is also not supported by any other witness. Mr. Mohanty also pointed out that the Courts below committed grave legal error in not considering the abnormal delay in lodging the FIR and in accepting Exts. 5 and 6 and the evidence of the seizure witness regarding recovery of the utensils as those evidences were hit u/s 25 of the Evidence Act. He claims that in view of the illegality committed by the Courts below, the Petitioner deserves to be acquitted. 3. Mr. A.K. Mishra, Learned Standing Counsel on the other hand, argued that evidence of P. Ws. 1, 2 and 9 along with the FIR Ext. 1, seizure lists Exts. 5 and 6 clearly establish the complicity of the Petitioner in the alleged crime. He also argued that few hours delay in lodging the FIR was quite natural, considering the time of occurrence, distance between the place of occurrence and the police station and also the inaccessible rough terrain of the area. 4. 1, seizure lists Exts. 5 and 6 clearly establish the complicity of the Petitioner in the alleged crime. He also argued that few hours delay in lodging the FIR was quite natural, considering the time of occurrence, distance between the place of occurrence and the police station and also the inaccessible rough terrain of the area. 4. At the outset, it is to be remembered that a Revisional Court cannot reassess the entire evidence and record its own finding substituting the findings of the Courts below. The Revisional Court can only examine whether the Courts below acted without jurisdiction or their approach suffer from any illegality or perversity. 5. The allegation of the prosecution was that at about midnight of 29/30 August, 1993 while the informant, his wife, minor daughter and niece were sleeping in their house at village-Bankbahal. Some dacoits entered into the house, threatened and assaulted the inmates of the house, tied and confined them in different rooms and forcibly removed cash, ornaments and utensils, etc. It was claimed that the informant could identify the present Petitioner and Khageswar among the dacoits and when the police arrested these persons later on, they gave recovery of some utensils belonging to the informant and his wife from their respective houses. Informant P.W. 1 clearly mentioned the name of the Petitioner in the FIR. In the Court also he identified the Petitioner as one of the dacoits. Learned Counsel for the Petitioner argued that P.W. 1 could not have identified the Petitioner as the night of occurrence was dark and no light was available for such identification. He specifically referred to the evidence of P.W. 9 in cross-examination in this regard. P.W. 9 in paragraph-10 of his cross-examination deposed that P.W. 1 did not specifically state before him that a lantern was burning and with the light of the lantern, he identified the Petitioner and Khageswar, but he stated that P.W. 1 had mentioned about the lantern light in the FIR at the earliest opportunity. Moreover, it is there in the evidence that the Petitioner and P.W. 1 belong to the same village and are known to each other since their childhood. When P.W. 1 was acquainted with the Petitioner from the childhood, identification was quite possible even in the darkness of the night. Moreover, it is there in the evidence that the Petitioner and P.W. 1 belong to the same village and are known to each other since their childhood. When P.W. 1 was acquainted with the Petitioner from the childhood, identification was quite possible even in the darkness of the night. That apart, the Petitioner has not assigned any reason or evidence as to why P.W. 1 would falsely implicate him in the case. So the Courts below had good reason to accept the evidence of P.W. 1 regarding identification as reliable. 6. The I.O., P.W. 9, claimed that basing on the statement of the Petitioner he made the recovery of some utensils but the statements of Petitioner having not been recorded, Learned Appellate Court rightly declined to accept such claim of the I.O. u/s 27 of the Evidence Act. Ext. 6 is a seizure list, which speaks about seizure of some utensil from the house of the Petitioner. The I.O. and P.W. 7 have proved the seizure of some of the utensils which carry the inscribed name of the wife of the informant and there is no explanation from the side of the Petitioner as to how those utensils were there in his house. The fact of seizure of the utensils carrying the inscribed name of P.W. 2 from the house of the Petitioner was thus established and, therefore, further link between the Petitioner and the alleged offence was proved. 7. The offence took place at midnight of 29/30.8.1993 and the FIR was registered at the spot at 6.00 P.M. on 30th August, 1993. According to Mr. Mohanty, this delay of 18 hours raises suspicion about the truth of the prosecution allegation. He even suggested that the present FIR was substituted in place of the original FIR. The endorsement of the O.I.C. on Ext. 1 and his evidence clearly show that the spot village is situated 15 Kms. away from the police station and the area is inaccessible without any public transport facility. It is also apparent from Ext. 1 and evidence of P. Ws. 1 and 9 that after getting some information about the dacoity, P.W. 9 went to the spot village and waited there for some time and when P.W. 1 returned to the village he recorded his oral FIR. It is also apparent from Ext. 1 and evidence of P. Ws. 1 and 9 that after getting some information about the dacoity, P.W. 9 went to the spot village and waited there for some time and when P.W. 1 returned to the village he recorded his oral FIR. In the described circumstances, delay of a few hours cannot be termed as unnatural and the genuineness of the FIR and allegation cannot be suspected on the ground of delay particularly when there is no evidence to indicate any motive for false implication of the Petitioner. Learned Courts below were therefore, justified in believing the complicity of the Petitioner with the alleged dacoity and no illegality or perversity is noticed in the approach or conclusions. So there is no scope for this Court to interfere with the impugned order in exercise of revisional power. 8. Consequently, the criminal revision is found to be without any merit and is accordingly dismissed. Crl. Rev. dismissed. Final Result : Dismissed