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2015 DIGILAW 726 (ORI)

Rajesh Gadodia v. State of Orissa

2015-12-24

BISWAJIT MOHANTY, P.MOHANTY

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JUDGMENT Biswajit Mohanty, J. 1. The present Criminal Revision has been filed by one Rajesh Gadodia, who happens to be the informant and Prosecution Witness No. 1 in S.T. Case No. 169 of 2014. The above Criminal Revision arises out of a common judgment dated 13.9.2007 passed by the learned Sessions Judge, Sundargarh in S.T. Case No. 169 of 2004 in which the learned Sessions Judge while recording conviction with regard to five accused persons under Sections 364-A/34, 342/34 and 120-B of Indian Penal Code has acquitted opp. parties 2, 3 and 4 of all the charges under Sections 364A/34 IPC, 342/34 IPC, 120B IPC, 395 of I.P.C. and Sections 25/27 of Arms Act. The above indicated five convicts, however, were acquitted of the charges under Section 395 IPC and Sections 25/27 of Arms Act. Out of these five convicts, four convicts, namely, Roshan Ali, Rajan Mishra, Shamim Sidique and Virendra Jaiswal have filed CRLA No. 541 of 2007, CRLA No. 526 of 2007, CRLA No. 385 of 2008 and CRLA No. 532 of 2007 respectively. These four Criminal Appeals were taken up for hearing along with this Criminal Revision. The CRLA No. 523 of 2007 filed by the fifth convict-Atul Pandey was not taken up for hearing as presently he is absconding. However, for the sake of convenience, this separate judgment is being pronounced with regard to Criminal Revision No. 1426 of 2007. 2. At the outset, it may be indicated that after the judgment was reserved in all the four Criminal Appeals along with this Criminal Revision, Mr. B. Sahoo, learned counsel for opp. party No. 3 in the present Criminal Revision filed an affidavit sworn to by one Alekha Prasad, father of opp. party No. 3 accompanied by a memo to the effect that in the meantime opp. party No. 3-Rajendra Prasad has died on 27.05.2011. 3. Since S.R. was not back from opp. party No. 2 in the present Criminal Revision, this Court appointed Mr. N. Beuria, Advocate as amicus curiae to assist the Court on behalf of opp. party No. 2. 4. The case of the prosecution is that on 24.1.2004 at about 3.30 P.M., Sawarmal Gadodia (P.W. 8), an industrialist of Rajgangpur left his residence for Sundergarh in his Maruti Zen Car bearing registration No. OR-16-A-5921 driven by his driver Fransis Minz (P.W.7). N. Beuria, Advocate as amicus curiae to assist the Court on behalf of opp. party No. 2. 4. The case of the prosecution is that on 24.1.2004 at about 3.30 P.M., Sawarmal Gadodia (P.W. 8), an industrialist of Rajgangpur left his residence for Sundergarh in his Maruti Zen Car bearing registration No. OR-16-A-5921 driven by his driver Fransis Minz (P.W.7). P.W.8 also took one Amin, namely, Biranchi Bag of Rajgangpur Tahasil with him. P.W.8 first went to his factory at Budhakata. After that P.W.8 visited his factory at Bai-Bai. At Bai-Bai P.W.8 left Biranchi Bag for demarcation of a land. Thereafter, he proceeded to Sundargarh. As P.W.8 did not return home by 10 P.M., the present petitioner, who is the son of P.W.8, sent his staffs, namely, Deepak Sharma and Prabin Patra to Sundergarh. On the way near Karamdihi, Deepak Sharma and Prabin Patra found the Maruti Zen Car of P.W.8 by the road side. They also informed the petitioner (P.W.1 and informant) that unknown culprits had followed the Maruti Zen Car in a Bolero vehicle and stopped the said Zen Car on the point of pistol and took away P.Ws.7 and 8 in their Bolero vehicle. As P.W.8 is an Industrialist, his son (P.W.1) suspected that the unknown culprits have abducted P.W.8 with a motive to demand money. Accordingly, P.W.1 lodged F.I.R. (Ext. 1) at 11 P.M. before the IIC, Sadar Police Station, Sundergarh on 24.1.2004. Basing on this, the case was registered and investigation commenced. During course of investigation, witnesses were examined. Spot was visited, a number of persons including the three opposite parties of Criminal Revision No. 1426 of 2007 were arrested, some weapon of offences were recovered and the victims-P.Ws.7 and 8 were rescued from the farm house of convict-Virendra Jaiswal situated at Hartoli in the State of Chhattisgarh. Three convicts, namely, Roshan Ali, Rajan Mishra and Shamim Sidique along with one Atul Pandey were put to Test Identification Parade. Voices of convicts-Roshan Ali and Rajan Mishra were recorded by the Magistrate for comparison. The Bolero vehicle in which the victims (P.Ws.7 & 8) were kidnapped and the Maruti Zen Car in which P.Ws.7 and 8 proceeded to Sundergarh were seized. Voices of convicts-Roshan Ali and Rajan Mishra were recorded by the Magistrate for comparison. The Bolero vehicle in which the victims (P.Ws.7 & 8) were kidnapped and the Maruti Zen Car in which P.Ws.7 and 8 proceeded to Sundergarh were seized. Sanction order of the Additional District Magistrate for prosecution under the Arms Act was obtained and after completion of investigation, charge sheet was submitted against the accused persons, which included opposite parties 2, 3 and 4. Later the matter was duly committed to the Court of Sessions and the accused persons including opposite parties 2, 3 and 4 stood their trial under Sections 364A/34, IPC, 342/34, IPC, 395 IPC, 120B, IPC and Sections 25/27 of the Arms Act. The plea of the opp. parties 2, 3 and 4 was of complete denial. In order to establish the charges the prosecution examined 33 witnesses, out of which P.W.12 turned hostile. The prosecution also exhibited 71 documents. On behalf of convict-Roshan Ali, one defence witness was examined taking a plea of alibi. Upon completion of trial as indicated earlier, while Roshan Ali, Rajan Mishra, Shamim Sidique, Atul Pandey and Virendra Jaiswal were convicted under Sections 364A/34, 342/34, 120B IPC, they were acquitted of charge under Section 395 of I.P.C. and Sections 25/27 of the Arms Act, whereas the present opp. parties 2 to 4 were acquitted of all the charges. Petitioner challenges such acquittal of the opp. parties 2, 3 and 4 in the present Criminal Revision. It may be noted here that while rendering the judgment in four Criminal Appeals filed by the culprits-Rajan Mishra, Roshan Ali, Shamim Sidique and Virendra Jaiswal, this Court has upheld their conviction for having committed the offence under Sections 364A/34, 342/34 IPC and acquitted them of charges under Section 120B IPC. 5. Before hearing the contentions of learned counsel for the parties, we have to remind ourselves about the limits of revisional jurisdiction, that is to be exercised by this Court. Law is well settled by a number of decisions of the Hon'ble Supreme Court as well as by the latest decision reported in AIR 2015 SC 3566 (Chandra Babu @ Moses v. State through Inspector of Police and others) that inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in perverse finding. Basically, the revisional power is required to be exercised so that justice is done and there is no abuse of power by the Court. 6. Heard Mr. Suraj Mohanty, learned counsel for the petitioner and Mr. N. Beuria, Mr. B. Sahoo, Mr. S. Tripathy, learned Advocates and Mr. Jyoti Prakash Pattnaik, learned Addl. Government Advocate. While Mr. Mohanty attacked the acquittal of opp. parties 2 to 4 on the ground of perverse finding, the counsel for opp. parties 2 to 4 refuted such submission and supported the order of acquittal. 7. Mr. Suraj Mohanty, learned counsel for the petitioner submitted that such acquittal of opp. parties 2 to 4 is illegal because the same is a product of perverse finding. According to him as per the statements of P.Ws.31 and 32, opp. parties 2 to 4 were clear conspirators to the crime. Therefore, they should have been convicted like Rajan Mishra, Roshan Ali, Shamim Siddique, Atul Pandey and Virendra Jaiswal under Sections 364A/34 IPC, 342/34IPC and 120B IPC. By not recording conviction, the learned trial court has acted in a perverse manner. The above submission of Mr. Mohanty has no legs to stand as in the accompanying four Criminal Appeals, we have already returned a finding that no case under Section 120B IPC has been made out by the prosecution and accordingly, we have acquitted the four appellants there of the charges under Section 120B IPC. However, at the cost of repetition, it can be said that evidence as has come out from P.Ws.11, 20, 22 and 32 are not satisfactory to prove the charge under Section 120B IPC. Except for the fact that two culprits, namely, Rajan Mishra and Roshan Ali operated during certain period from Nagpur after the occurrence and some other persons were staying in a hotel at Jharsuguda prior to occurrence, no conclusive evidence exists indicating a meeting of minds of convicts and opp. parties 2 to 4 and others. Except for the fact that two culprits, namely, Rajan Mishra and Roshan Ali operated during certain period from Nagpur after the occurrence and some other persons were staying in a hotel at Jharsuguda prior to occurrence, no conclusive evidence exists indicating a meeting of minds of convicts and opp. parties 2 to 4 and others. The evidence relating to concert among conspirators and transmission of thoughts for committing unlawful act is not that clinching and thus not beyond reasonable doubt P.W.11 has also not identified any of the accused though according to Entry Register of Bishnu Palace Hotel, Jharsuguda; 3 to 4 persons stayed there from 17.1.2004 to 19.1.2004, which included convict-Shamim Siddique. The evidence of P.W.20 relates to a period after the conspiracy was over. The learned Sessions Judge mainly relied on convict-Roshan Ali's confession before P.Ws. 22 and 32 to rope in Section 120B IPC completely forgetting that under Section 27 of the Indian Evidence Act, 1872 his statement that he along with others had abducted a "SETH" from Odisha was not legally admissible. Even such statement of Roshan Ali was not put to him during his examination under Section 313 Cr.P.C. On this account also, such confessional statement cannot be used to convict anyone much less opp. parties 2 to 4. Further, neither P.W.-31 nor P.W.32 have stated anything about Roshan Ali confessing about role of opp. party No. 2 in commission of crime. Thus, the contention of Mr. Mohanty that the opp. parties 2 to 4 should have been roped in under Section 120B IPC as per the depositions of P.Ws.11, 31 and 33, is not acceptable to us. With regard to his submission on Ext. 59, we are unable to accept the same rather we are in agreement with reasoning given by the learned Sessions Judge, Sundargarh at para-86 of his judgment that Ext. 59 containing telephone numbers of P.W.1 is not sufficient to connect opp. party No. 4 with the crime as there exists no evidence to show that opp. party No. 4 had made any telephone call to P.W.1 or to that he was involved in abduction and demand of ransom and/or he conspired with others to facilitate abduction. Thus, the finding of the learned court below in acquitting opp. party No. 4 cannot be said to be a result of perverse finding. 8. With regard to submission of Mr. Thus, the finding of the learned court below in acquitting opp. party No. 4 cannot be said to be a result of perverse finding. 8. With regard to submission of Mr. Mohanty, learned counsel for the petitioner on opp. party No. 2's complicity in committing crime on the basis of seizure of Bolero from his rented house, we refuse to accept such contention and agree with the reasoning given by the learned Sessions Judge at Para-87 of the judgment on this issue. It appears that the said Bolero was never put to T.I. parade. Further, even Roshan Ali in his so-called conviction never took the name of opp. party No. 2. On this account also, the finding of learned Sessions Judge cannot be described as perverse. 9. With regard to the decision cited by Mr. Mohanty in AIR 2000 SC 1691 (State of Maharashtra v. Damu Gopinath Shinde and others), the same is clearly distinguishable on fact as there the accused Balu Joshi himself had confessed about committing the murder in conspiracy with other accused persons before a Judicial Magistrate First Class. 10. Last but not the least P.W.8 who happens to be the father of the petitioner and who was abducted, in his evidence, has clearly stated that opp. parties 2 to 4 were not involved in abducting him. They had also no role to play in abducting P.W.7. He did not see opp. parties 2 to 4 either in the place of confinement or anywhere and for the first time he saw these persons in Court. P.W.7 also did not identify opp. parties 2 to 4 though he identified the culprits-Rajan Mishra, Roshan Ali, Shamim Sidique, Atul Pandey and Virendra Jaiswal in the Court. In such background learned Sessions Judge, Sundargarh has committed no error in recording the order of acquittal in favour of opp. parties 2 to 4. Accordingly, we are not inclined to entertain the Criminal Revision, and, as such, the same stands dismissed. P. Mohanty, J. : I agree.