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2009 DIGILAW 373 (ORI)

Bhaskar Chandra Nayak v. State of Orissa

2009-04-30

PRADIP MOHANTY

body2009
JUDGMENT PRADIP MOHANTY, J. — This appeal is directed against the judgment and order dated 06.04.1989 passed by the Addl. Sessions Judge, Balasore convicting the appellants under Section 412 IPC and sentencing them to undergo rigorous imprisonment for three years in S.T. No.16/74 of 1988. 2. The case of the prosecution is that on 03.09.1987 at about 6.30 A.M. two unknown persons were found sitting at Khuladi Bazar Chhak. Nagendra Mohan Jena, Harischandra Das and few others went near the said two unknown persons and asked them about their identity and destination. During that time one Satrughna Martha arrived there and immediately recognized them to be dacoits who had committed dacoity in 7- UP Howrah-Puri Express during the night in between 2nd and 3rd September, 1987. He further disclosed that he was one of the passengers in the compartment in which the dacoity took place. Nagendra snatched away the bag from those unknown persons, who took to their heels. After handing over the said bag to Bhaskar Nayak (appellant No.1), who was a betel shop owner of Khuladi Chhak, Nagendra and others chased those persons and apprehended the them in a paddy field. It was found that more than half of the cash kept in the bag had been removed in the meantime by the present appellants and others. On arrival of the I.O. (P.W.7) Nagendra handed over the bag containing the rest of the cash and those two unknown persons to him. G.R.P.S. Case No.37 of 1987 was registered. During the course of investi¬gation, P.W.3, namely, Manmath Nayak, produced a sum of Rs.7,000/- saying that the said amount had been given to him by Laxmidhar Rout and the same was seized by the I.O. Khetrabasi Nayak (appellant No.3). He also gave a sum of Rs.1,437 to P.W.7, who seized the same. On completion of investigation, charge-sheet under section 395/412 I.P.C. was submitted against the present appellants and others. 3. The plea of the appellants was complete denial of the allegation. 4. In order to prove its case, the prosecution examined as many as seven witnesses including the I.O. Defence examined none. 5. The learned Addl.Sessions Judge, Balasore, who tried the case, by his judgment dated 30.04.1989 found the appellants guilty of the offence punishable under Section 412 IPC, convicted them there-under and sentenced them to undergo rigorous imprison¬ment for three years. In order to prove its case, the prosecution examined as many as seven witnesses including the I.O. Defence examined none. 5. The learned Addl.Sessions Judge, Balasore, who tried the case, by his judgment dated 30.04.1989 found the appellants guilty of the offence punishable under Section 412 IPC, convicted them there-under and sentenced them to undergo rigorous imprison¬ment for three years. He, however, acquitted the appellants of the charge under Section 395 IPC. 6. Learned counsel for the appellants submitted that there is absolutely no material against the present appellants to convict them under Section 412 IPC. He stated that the present appellants and others are active members of the Puja Committee and have been falsely implicated in this case. There are material discrepancies in the statement of witnesses. The most vital person, i.e., Nagendra Jena, who had snatched away the bag from the dacoits, has not been examined by the prosecution. There is also no material to show that the stolen property had been misap¬propriated by the present appellants. Prosecution has not been able to prove that the property seized from the possession of the present appellants were stolen articles. Mere possession of the property without proving that the same was stolen property is not sufficient to connect the appellants under Section 412 IPC. Neither cash seized from the possession of the present appellants was produced before the Court nor was the details regarding the different denominations have been mentioned in the seizure list. Lastly learned counsel for the appellants submitted that when the I.O. entered inside the shop of appellant No.1, he had not given his personal search. So the possibility of the I.O. taking the said amount inside his pocket and afterwards showing the same to have been seized from appellant No.1 cannot be ruled out. 7. Learned Additional Government Advocate vehemently contended that stolen, articles were seized from the possession of the appellants. According to the evidence of P.Ws.1 and 7, three dacoits were apprehended and there is ample evidence of dacoity having been committed in Puri-Howrah Express and the butties divided by the present appellants. Therefore, no illegal¬ity has been committed by the trial Court convicting the appel¬lants under Section 412 I.P.C. 8. Perused the L.C.R. The evidence of P.Ws. 2 and 4 dis¬closes that one Nagendra Mohan Jena was present there and demand¬ed the bag from the unknown persons. Therefore, no illegal¬ity has been committed by the trial Court convicting the appel¬lants under Section 412 I.P.C. 8. Perused the L.C.R. The evidence of P.Ws. 2 and 4 dis¬closes that one Nagendra Mohan Jena was present there and demand¬ed the bag from the unknown persons. Nagendra and P.W.4 snatched away the bag from them and on opening found that the bag was packed with currency notes. All of a sudden, those unknown per¬sons started running. P.W.2 and others chased them and brought them back. When P.W.2 demanded the bag from Nagendra, he said Nagendra said that he had given the same to appellant No.1. If the evidence of P.Ws.2 and 4 is taken into consideration, then it is clear that Nagendra was in possession of that bag left by those dacoits. When P.Ws. 2 and 4 demanded that bag from Nagen¬dra, he stated that he had handed over the bag to appellant No.1, but the bag was kept in front of the shop of appellant No.1 and he was suspected to have misappropriated the money. Said Nagen¬dra, who is a material witness has not been examined by the prosecution for the reasons best known to it. It seems, prosecu¬tion has not come with a clean hand and has tried to suppress the material facts. It is onus of the prosecution to prove that the properties were stolen properties and were misappropriated by the present appellants. In absence of such proof, the conviction of the appellants is not proper. Mere possession is not sufficient to convict them under Section 412 I.P.C. Non-production of the material object and non-mentioning the serial number of the cur¬rency notes are also fatal to the prosecution. Therefore, this Court sets aside the judgment and order of conviction passed by the trial Court. 9. The Criminal Appeal is accordingly allowed. The order of conviction and sentence passed against the appellants is set aside. Appeal allowed.