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2007 DIGILAW 588 (ORI)

Nisar Ansari v. State of Orissa

2007-07-31

PRADIP MOHANTY

body2007
JUDGMENT PRADIP MOHANTY, J. : The above noted three criminal revi¬sions, arise out of the judgment dated 15.02.2005 passed by Shri B. Mohapatra, learned Second Adhoc Addl. Sessions Judge, Sundar¬garh in Criminal Appeal No.11/7 of 2004-05 confirming the judg¬ment of conviction and sentence dated 28.01.2004 passed by Shri R. K. Banerjee, Assistant Sessions Judge-cum-Chief Judicial Magistrate, Sundargarh in Sessions Trial No.51 of 2002. Therefore, they were heard together and are disposed of by this common judgment. 2. The case of the prosecution, as unfolded during trial, is that on 15.04.2002 at about 3.15 P.M. one Julius Tirkey (P.W.1), cashier of the Panchara Branch of the State Bank of India, orally reported at Kutra Police Station that on that day at about 1.50 P.M. when there was no customer in the Bank and he had already counted the currency notes available in his counter amounting to Rs.54,439/-, three young men suddenly entered inside the Bank. Of them, one was armed with a pistol and the rest two are holding lathis. At first, they went to the Branch Manager (P.W.2), assaulted him by lathis as well as kick and fist blows, and demanded cash from him. At that time, another culprit armed with lathi was also guarding at the front door of the Bank. The three culprits inside the Bank at the point of pistol threatened the staff and forcibly took the entire cash available in the counter in a bag and tried to break open the strong room and confined all the staff in the bank. When the villagers could know about the back robbery, they gathered in front of the bank. At that moment, receiving signal from the culprit who was in guard at the entrance door,the three culprits came out of the Bank and all of them as well as their five companions out of whom four were armed with pistols, started running. But the villagers could manage to nab all the nine culprits inside the jungle and handed them over to the police. It is alleged that there was a fight between the villagers and the culprits, for which some of the culprits sustained injuries and while undergoing treatment in hospital, one of the culprits succumbed to the injuries. In all, eight accused persons including the present petitioners faced trial. It is alleged that there was a fight between the villagers and the culprits, for which some of the culprits sustained injuries and while undergoing treatment in hospital, one of the culprits succumbed to the injuries. In all, eight accused persons including the present petitioners faced trial. All of them were charged under Section 395 IPC read with Section 27(1) of the Arms Act and accused Umesh Oram, Md. Hafiz Ansari (petitioner in CRLREV No.233 of 2006) and Hiralal Bhagat were charged under Section 25(1-B) (a)of the Arms Act. 3. The plea of the accused persons was complete denial of the allegations. They admitted in their statements under Section 313 Cr.P.C. that they had come to village area for transporting cattle and at that time the villagers of Elga assaulted them and handed over to the police. 4. In order to prove its case, sixteen witnesses were examined by the prosecution and one witness was examined on behalf of the defence. Learned Chief Judicial Magistrate-cum-Assistant Sessions Judge,Sundargarh, who tried the case, convict¬ed all the accused persons under Section 395 IPC and sentenced each of them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2000/- in default to undergo rigorous impris¬onment for a period of three months. Further, the learned trial Judge sentenced accused Umesh Oram, Mahammed Hafiz Ansari (peti¬tioner in CRLREV No.233 of 2006) and Hiralal Bhagat to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for a period of one month each under Section 25(2-B)(a) of the Arms Act. The sen¬tences are to run concurrently. Against the said judgment of conviction and sentence, six accused persons including the present petitioners preferred appeal registered as Criminal Appeal No.11/7 of 2004-05 and the learned IInd Ad hoc Additional Sessions Judge, Sundargarh, after hearing the learned counsel for the parties dismissed the appeal and confirmed the judgment of conviction and sentence recorded by the trial Court. 5. Counsel for the petitioners submits that the judgment and order of conviction is illegal and contrary to law. The Courts below ought to have acquitted the petitioners of all the charges, particularly when there is no material available against them. In fact, no recovery was made from the petitioners nor did any of them lead to the discovery of any material. The sentence is also excessive. 6. Mr. The Courts below ought to have acquitted the petitioners of all the charges, particularly when there is no material available against them. In fact, no recovery was made from the petitioners nor did any of them lead to the discovery of any material. The sentence is also excessive. 6. Mr. Pattnaik, learned Addl. Standing Counsel, submits that there is cogent evidence and there is no infirmity in the judgments of the Courts below. He further submits that the law is well settled that ordinarily it is not open to the High Court to interfere with the concurrent findings of fact arrived at by the Courts below by re-appreciating the evidence in its revisional jurisdiction. He further submits that the High Court can inter¬fere under the revisional jurisdiction only when there are glar¬ing defects or manifest error in the lower Courts’ judgments resulting in miscarriage of justice. In the instant case, there is no manifest error of law or glaring defect. Finding on a question of fact cannot be challenged when it is apartment from the record that the trial Court or the appellate Court has not omitted to consider any material evidence. In this connection, he drew the attention of the Court to the decisions in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and others, AIR 2004 SC 4412 , and Deb Narayan Halder v. Smt. Aanusshree Halder, AIR 2003 SC 3174 . 7. Perused the LCR and the judgments of the Courts below. In the instant case, the trial Court has not omitted to consider any material evidence on record. The lower appellate Court has also appreciated the entire evidence on record and has not found any infirmity or illegality in the judgment of the trial Court. There is no glaring defect or manifest error in the judgment of conviction and sentence passed by the trial Court and the judg¬ment of the lower appellate Court affirming the same justifying interference by this Court. With regard to the quantum of sen¬tence, the same is also not excessive. 8. In view of the above, there is no merit in these revi¬sions, which are accordingly dismissed. Revisions dismissed.