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2008 DIGILAW 874 (ORI)

BHAGABAN DAS v. STATE OF ORISSA

2008-09-24

PRADIP MOHANTY

body2008
JUDGMENT : Pradip Mohanty, J. - This Jail Criminal Revision is directed against the judgment dated 16.11.2001 passed by the Adhoc Addl. Sessions Judge, (FTC), Baripada in Criminal Appeal No. 187/17 of 2001 confirming the judgment dated 22.03.2001 passed by the S.D.J.M., Udala in G.R. Case No. 173 of 2000. 2. Case of the prosecution is that P.W. 1 lodged the written report before the O.I.C., Udala P.S. stating therein that his cycle was removed by an unknown accused person. He also stated in the F.I.R. that he chased the culprit but could not apprehend him. Thereafter, the cycle was recovered by the O.I.C. (P.W. 5). Ultimately, charge-sheet was submitted u/s 379 IPC against the present Petitioner. 3. The plea of the accused- Petitioner is complete denial of the occurrence. 4. In order to prove its case, prosecution has examined as many as five witnesses. But defence has not examined any witness. 5. Learned S.D.J.M., Udala convicted the accused- Petitioner u/s 379 IPC and sentenced him to undergo R.I. for two years. Against that judgment, the Petitioner preferred appeal before the Sessions Judge, Baripada in Criminal Appeal No. 187/17 of 2001. Learned Ad hoc Addl. Sessions Judge, (FTC), Baripada who heard the appeal, by judgment dated 16.11.2001 dismissed the same and confirmed the sentence passed by learned S.D.J.M. 6. learned Counsel for the Petitioner submits that in fact there is no material against the Petitioner as there is no independent corroboration with regard to seizure of the cycle. No seizure list has been proved by the seizure witness. He further submits that P.W.5 was said to have seized the cycle from the possession of the accused- Petitioner in presence of the seizure witness P.W.2. But P.W.2 has not proved the seizure list. Thus, there is absolutely no material against the Petitioner with regard to recovery of the cycle from him. 7. Mr. Pattnaik, learned Additional Government Advocate vehemently contends that there is no infirmity or illegality in the judgment of the courts below. There is no reason to disbelieve the evidence of P.W. 5. In the seizure list, P.W. 5, the I.O. obtained the signature of the accused- Petitioner. Mr. Pattnaik also placed the instruction received from the Sub-jail, Udala and submitted that the Petitioner has already been released from jail custody after expiry of the sentence. 8. There is no reason to disbelieve the evidence of P.W. 5. In the seizure list, P.W. 5, the I.O. obtained the signature of the accused- Petitioner. Mr. Pattnaik also placed the instruction received from the Sub-jail, Udala and submitted that the Petitioner has already been released from jail custody after expiry of the sentence. 8. Perused the L.C.R. In the instant case P.W. 1 is the informant and police left the cycle with him after obtaining zimanama (Ext.2). In his cross-examination he admitted that he had not remembered the number of the cycle. P.W. 2, an independent witness has not proved the seizure list. He also admitted that when the accused fled away with the cycle many persons were passing on the road. He has not whispered a single word with regard to recovery of the cycle by the A.S.I. P.W.3, the brother of informant corroborated the statement of P.W.1. P.W. 4, another witness, also stated that the informant and others were chasing the accused- Petitioner, but they failed to apprehend him. Thereafter, the matter was informed to the police. P.W.5, the A.S.I. who investigated the matter and submitted charge-sheet, only stated that he seized the cycle from the possession of the accused- Petitioner and prepared the seizure list. In cross-examination he also admitted that out of suspicion he detained the accused as he was riding the stolen cycle and subsequently, he called the informant who identified the same. But he has not whispered a single word as to in whose presence he recovered the cycle. No independent witness has been examined with regard to recovery of the same from the possession of the accused- Petitioner. 9. From thorough scanning of the evidence of the witnesses and material on record, it is crystal clear that there is no independent corroboration with regard to recovery of the cycle from the possession of the Petitioner. 10. In view of the above, this Court allows the revision and set aside the orders/judgments passed by the courts below. Revision allowed. Final Result : Allowed