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2010 DIGILAW 232 (ORI)

SRI MANORANJAN SARKAR v. STATE OF ORISSA

2010-03-30

C.R.DASH

body2010
JUDGMENT : C.R. Dash, J. - This revision arises out of appellate judgment of conviction of the Petitioner u/s 394 I.P.C. and sentence recorded thereunder by the learned Sessions Judge, Berhampur on 15.04.1999 in Criminal Appeal No. 14 of 1998. 2. The Petitioner was engaged as a temporary driver in the truck bearing Registration No. ORY-1770. The informant's elder brother is the owner of the truck, but the informant was looking after the management of affairs of the said truck. On 14.08.1992 the truck ferried iron rods from Rourkela to Kabisuryanagar. At Kabisuryanagar the informant (P.W.1) received hire charge of Rs.3, 230/- for the trip. He kept that amount in a small bag inside the cabin of the trick.In the truck the informant (P.W.1), Petitioner and one Helper of the truck set in their journey for Ichhapur. On the way near village Konishi seeing a bridge they stopped the truck on the N.H. 5 for their daily constitutionals. They left the truck for easing themselves. The Petitioner returned to the truck at first followed by the informant (P.W.1). The informant (P.W.1) found the money kept in the bag missing. He confronted the Petitioner about the matter and attempted to check his pockets. The Petitioner gave punches to the informant (P.W.1) and bringing out a long screw?driver from the vehicle, threatened to assault him. The informant (P.W.1) out of fear raised shout. Four to five persons working in the nearby fields rushed to the spot. Seeing them, the Petitioner ran through the fields' on the western side of the spot. Seeing the Petitioner running away from the spot, the informant (P.W.1) shouted "Dhara Dhara" (Catch hold, catch hold). At that time two police personnels (P.Ws.3 and 4) happened to pass by that road. Before them the informant (P.W.1) narrated about the incident. They (P.Ws.3 and 4)with the help of the persons working in the fields, caught hold of the Petitioner and recovered from him the stolen money. 3. The Petitioner in his defence took the plea of denial and further pleaded that as he refused to work as a Driver under the informant (P.W.1) and demanded his back wages, the informant has cooked up a false case against him. 4. The prosecution examined four witnesses to prove the charge. 3. The Petitioner in his defence took the plea of denial and further pleaded that as he refused to work as a Driver under the informant (P.W.1) and demanded his back wages, the informant has cooked up a false case against him. 4. The prosecution examined four witnesses to prove the charge. P.W.1 is the informant, P.W.2 is an independent witness who did not support the prosecution case, P.W.4 is the I.O. and eye witness to a part of the transaction and P.W.3 is a Havildar, who all-through was present along with P.W.4. The defence has examined none. 5. Leaned Court below found the Petitioner guilty of offence u/s 394 I.P.C. on the basis of oral evidence adduced by P.Ws. 1, 3 and 4 and documentary evidence vide Exts. 1 to 4 and sentenced him to suffer R.I. for one year and to pay a fine of Rs.500/-, in default to suffer R.I. for further period of two months. The Petitioner preferred appeal before the Sessions Court. Learned Sessions Judge on re-appreciation of the evidence adduced concurred with the findings of the learned Court below and confirmed the judgment of conviction. He, however, directed the substantive sentence to be reduced to R.I. for six months without interfering with the amount of fine and the default sentence. 6. In the present revision learned Counsel for the Petitioner raises the following contentions :- (I) Learned Courts below have failed to appreciate the evidence properly without being alive to the material contradictions and inherent improbabilities in the prosecution evidence; (II) much emphasis has been given to the testimony of P.W.1, who is an interested witness and a solitary witness, so far as the material transaction of the alleged robbery is concerned; (III) P.Ws. 3 and 4 are chance witnesses and they being official witnesses, they should not have been believed by learned Courts below; (IV) none of the independent witnesses cited in the charge-sheet except P.W.2 was examined, but P.W.2 on examination in Court having not supported the prosecution case, the Petitioner should have been acquitted of the charge; (V) the Helper of the truck, whose name has been mentioned in the F.I.R. as a witness, has been withheld by the prosecution without any explanation and adverse inference should have been drawn against the prosecution on this score alone; and (VI) the defence plea though advanced having not at all been taken into consideration, judgments passed by learned Courts below suffer from perversity. In the alternative it is contended that the materials on record do not satisfy the ingredients of Section 394 I.P.C. and at best the offence committed by the Petitioner is one of theft punishable u/s 379 I.P.C. 7. Learned Additional Standing Counsel, on the other hand supports the judgment and order of sentence and contends that the submissions advanced by learned Counsel for the Petitioner cannot be addressed without re-appraisal and re-appreciation of evidence, and such an indulgence is not permissible while exercising the revisional jurisdiction. 8. The revisional Court is empowered to exercise all the powers conferred on the appellate Court by virtue of provisions contained in Section 401 Code of Criminal Procedure. Section 401 Code of Criminal Procedure is therefore, a provision enabling the High Court to exercise all powers of an appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court. Section 397 Code of Criminal Procedure confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. With the aforesaid limited purpose Section 401 Code of Criminal Procedure has conferred powers of an appellate Court on the revisional Court. (See State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, . 9. It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. With the aforesaid limited purpose Section 401 Code of Criminal Procedure has conferred powers of an appellate Court on the revisional Court. (See State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, . 9. Unlike a Court of appeal, which is a Court of facts, the High Court as a revisional Court (as understood in the present context) is only a Court of errors Court of errors means a Court concerned with or required under law to address error/errors committed by the Courts below in reaching the findings/conclusions. Such errors, however, should be one arising out of glaring defect in the procedure or manifest error on a point of law which has consequently resulted in miscarriage of justice. If such an error is brought to the notice of the High Court in revision, the High Court can re-appreciate the evidence in exercise of revisi.onal jurisdiction. Some of such errors as aforesaid as recognised in different judicial pronouncements are errors arising out of wrong application, wrong notion or non-application of law; errors arising out of non-appreciation or wrong appreciation of evidence; errors of findings based on conjectures and assumptions; errors arising out of unreasonableness, impropriety or perversity. The revisional jurisdiction of the High Court to the extent of re-appreciation of evidence is therefore available to be exercised if the judgment impugned is fraught with any illegality and impropriety arising out of glaring defect in the procedure or manifest errors on point of law resulting in flagrant miscarriage of justice. (In this regard reference may be made to State of Orissa Vs. Nakula Sahu and Others Dungarashi Madanlal Zunzunwala v. Devi Prasad Omprakash Bajoria and Anr. ; 1985 Cri.LJ. 1943, Brajmohan Pradhan v. State; (1985) 1 Crimes 551 , Maniklal Acharjee v. State of Assam, (1998) 1 Crimes 205, Laxmidhar Behera Vs. State of Orissa, 10. It is clear from the discussion in the preceding paragraph that more than the correctness of the findings/conclusions recorded/reached by the Courts below, the High Court in exercise of revisional jurisdiction is concerned with the process of reaching the conclusion or recording of the findings impugned. In other words, the High Court is concerned with the correctness of the decision making process and not the correctness of the impugned decision. In other words, the High Court is concerned with the correctness of the decision making process and not the correctness of the impugned decision. If the process is held to be correct or free from fault or error, the findings recorded even if erroneous cannot be disturbed in revision as the High Court in such a case is within its bound not to record its own findings displacing the concurrent finding of facts reached by the Courts below. To sum up, the High Court in exercise of its revisional jurisdiction has the discretion to see and find out whether the judgment impugned is free from fault or error touching the decision making process. The revisional jurisdiction, therefore, is more a corrective jurisdiction than a remedial one and ordinarily such jurisdiction should not be used for re-appreciation and reappraisal of evidence like a second appellate Court. 11. If the impugned judgments are perused visa-vis\r\e contentions raised by learned Counsel for the Petitioner and the aforesaid background of law, it is found that contention Nos. (I), (II) and (III) raised by learned Counsel for the Petitioner are not sustainable for the following reasons - A. learned Counsel for the Petitioner has failed to bring out any contradictions or inherent improbabilities (as asserted) in the prosecution evidence and more particularly in the evidence of P.W.1 except the fact that P.W.1 has omitted to mention in the F.I.R, about the fact that he (P.W.1) had kept the money stolen by the Petitioner in the toolbox of the truck. The effect of the aforesaid omission is not of such a nature as to bring the prosecution case to the realm of doubt and it does not at all strike at the root of the prosecution case. B. There is no basis to dismiss the evidence of P.W.1 as interested evidence inasmuch as the defence has not laid down any foundation in that regard and no suggestion has been given to P.W.1 to the effect that He (P.W.1) had the interest to see the Petitioner convicted. Only on the basis of master and servant relationship between P.W.1 and the Petitioner evidence of P.W.1 cannot be thrown over board on the ground of such relationship alone blaming him to be interested. P.W.1 cannot also be said to be the solitary witness as in the midst of the transaction P.Ws. Only on the basis of master and servant relationship between P.W.1 and the Petitioner evidence of P.W.1 cannot be thrown over board on the ground of such relationship alone blaming him to be interested. P.W.1 cannot also be said to be the solitary witness as in the midst of the transaction P.Ws. 3 and 4 happened to arrive at the spot and they caught hold of the Petitioner with the help of persons present in the fields near the spot and recovered the stolen money from his possession. C.P.Ws. 3 and 4 are no doubt chance witnesses so far as the transaction is concerned but in the very nature of the fact that the occurrence took place on National Highway, the occurrence would have been obviously witnessed by the persons going on the Highway or passing across the spot of occurrence. In a sense any one going on the Highway at the time of occurrence would have been a chance witness but that fact by itself would not be enough to discredit his testimony. In view of such analogy there is no ground to discredit P.Ws. 3 and 4. 12. Coming to contention No. IV it is found that P.W.2 though an independent witness did not support the prosecution case and testified that he has not seen anything. He having not been cross-examined by the prosecution u/s 154 of the Evidence Act, learned Counsel for the Petitioner finds for himself a justification to submit that P.W.2 having not supported the prosecution case, the Petitioner is entitled to acquittal. Such a submission is too specious to be accepted because P.W.2 might not have supported the prosecution case but he having stated nothing against the prosecution, it was not necessary for learned Public Prosecutor to cross-examine him u/s 154 Evidence Act. 13. So far as contention No. V raised by learned Counsel for the Petitioner is concerned. It is found from the F.I.R. that the informant (P.W.1) has mentioned about presence of the helper when he (P.W.1), the present Petitioner and the helper left the vehicle for easing themselves. He has, however not mentioned about the presence of the helper during the transaction. Same is the evidence of P.W.1 during trial. In paragraph 5 of his cross-examination P.W.1 has specifically testified that he does not remember what the Cleaner (helper) was doing at the time of the occurrence. He has, however not mentioned about the presence of the helper during the transaction. Same is the evidence of P.W.1 during trial. In paragraph 5 of his cross-examination P.W.1 has specifically testified that he does not remember what the Cleaner (helper) was doing at the time of the occurrence. From such evidence and materials on record it is clear that the helper was present in the vehicle when it stopped but all the occupants including the helper left the vehicle for easing themselves and the helper was not on the scene of occurrence at the time the occurrence happened. The I.O. has not shown the helper as a witness in the charge-sheet. Such a fact is suggestive to the extent that the helper was not present in the scene of occurrence. No question has been put to the 1.0. by the defence as to why the helper has not been cited as a witness. Without affording an opportunity to the 1.0. of explaining his conduct, the defence cannot take the plea of defect in the investigation on a particular point. Hon'ble supreme Court in Pohlu v. State of Haryana, [(2005) 32 OCR (S.C.) 762] has held thus- It was then submitted some of the material witnesses were not examined and in this connection it was argued that two of the eye witnesses named in the F.I.R. namely Chandar and Sita Ram were not examined by the prosecution.... However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two witnesses, namely, P.W.1 and P.W.2 and to find whether their evidence, is true, on the basis of which the conviction of the Appellants can be sustained. When there is no material to satisfactorily establish that the helper was present at the scene of occurrence and the F.I.R. is silent about his presence at the time of occurrence, it is not proper to accept the contention raised by learned Counsel for the Petitioner on the point. When there is no material to satisfactorily establish that the helper was present at the scene of occurrence and the F.I.R. is silent about his presence at the time of occurrence, it is not proper to accept the contention raised by learned Counsel for the Petitioner on the point. Assuming arguendo the presence of the helper at the spot, the prosecution case cannot be thrown over board in view of the rationale of Hon'ble Supreme Court as aforesaid especially in view of the intrinsic worth of the evidence of P.Ws. 1, 3 and 4 as discussed by learned Courts below in detail. 14. Coming to the last contention raised by learned Counsel for the Petitioner it is found that the defence has taken the plea that as the Petitioner refused to work under the informant (P.W.1) and demanded his back wages, the informant has foisted the false case against him. The defence has not adduced any evidence to substantiate the plea. Even if no evidence is adduced by the defence as the defence is not obliged to lead evidence in support of its plea, the defence plea can be looked into by the Court whileassessing the value of the prosecution evidence and judging the guilt of innocence of the accused. But in absence of evidence by the defence, the aforesaid principle can be applied if the defence plea is one of competing probability with that of the prosecution case. The defence plea on the face of the prosecution case established in the present case and the circumstances, cannot be held to be of competing probability and learned appellate Court has rightly dismissed the defence plea for want of evidence. 15. Perusal of impugned judgments and the evidence on record shows that learned Courts below have committed no error so far as the decision making process is concerned. The contentions raised by learned Counsel for the Petitioner, therefore, must fail. 16. According to Section 390 I.P.C. theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. In the instant case if the hurt or attempt to cause hurt to the victim (P.W.1) with a screw?driver by the Petitioner has relation to or bearing on the theft which had been committed, the action of the Petitioner would fall u/s 390 I.P.C. 17. In the F.I.R. P.W.1 has mentioned that returning to the vehicle he found the money in question missing; he confronted the Petitioner about the matter but the Petitioner denied; he tried to check the pocket of the Petitioner and at that point of time the Petitioner gave fist blow and slaps to his waist and bringing a screwdriver from the vehicle threatened to assault him. In his evidence P.W.1 has however, testified that when he asked the Petitioner to return the money the Petitioner threatened to assault him by a screwdriver. He has further testified that he got down from the vehicle and raised alarm aloud to attract attention of the people. At that time the Petitioner escaped from the vehicle and ran away. There is contradiction on material particulars in the evidence of P.W.1 on this aspect. In view of such contradiction, it cannot be held that the Petitioner did any of the act mentioned in Section 390 I.P.C. to facilitate commission of the offence of theft by him. Having threatened the Petitioner to assault by a screw-driver the Petitioner has also immediately not escaped from the vehicle. He escaped from the vehicle only when the informant (P.W. 1) getting from the vehicle shouted aloud. In view of such fact alleged attempt to cause hurt by. the Petitioner with a screw-driver cannot be held to have direct relation or bearing on the theft that had been committed. The main ingredient of Section 390 I.P.C. having not been satisfied, conviction of the Petitioner u/s 394 I.P.C. becomes vulnerable. On the facts established offence committed by the Petitioner is one that falls u-nder Section 379 I.P.C. 18. The occurrence happened on 14.08.1992. The Petitioner has suffered imprisonment for some days as admitted by learned Counsels for the parties. Regard being had to the nature of allegation, immediate recovery of the stolen money and delay in adjudication, ends of justice would be best served if the sentence of the Petitioner is confined to the period already undergone. 19. The occurrence happened on 14.08.1992. The Petitioner has suffered imprisonment for some days as admitted by learned Counsels for the parties. Regard being had to the nature of allegation, immediate recovery of the stolen money and delay in adjudication, ends of justice would be best served if the sentence of the Petitioner is confined to the period already undergone. 19. In the result the conviction of the Petitioner is converted to one u/s 379 I.P.C. and the sentence is confined to period already undergone by the Petitioner as under trial prisoner. The revision is accordingly allowed in part.