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2019 DIGILAW 484 (ORI)

Pitambar Sahu v. State of Orissa

2019-07-25

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. This revision has been directed against the judgment dated 10.08.2005 passed by the learned Sessions Judge, Phulbani in C.R.A. No. 42 of 2000. By the said judgment, the judgment of conviction and order of sentence dated 24.8.2000 passed by the learned S.D.J.M., Phulbani in G.R. Case No. 379 of 1994 (T.R. No. 56 of 1995) convicting the petitioner (accused) for commission - of offence under section 420 of the Indian Penal Code (in short, 'the IPC') and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/- in default to undergo simple imprisonment for one month; have been confirmed. 2. The prosecution case, in brief, is that the informant when was working as a peon in a Girls' High School at Phulbani, the accused then was serving as a Peon in the Tahsil at Phulbani. On 4.1.1993, the informant withdrew a sum of Rs. 19,500/- from her account with State Bank of India, Khajuripada Branch for marriage of her only daughter. It is stated that the accused having seen the informant withdrawing money, in the same month approached her to give Rs. 11,000/- so that he would arrange a job for her son. It is stated that on repeated inducement, the informant, believing the words of the accused in good faith that her son would be getting a job under the arrangement of the accused, paid a sum of Rs. 6,000/- to the accused. It is further stated that subsequently Rs. 5,000/- was given by the complainant to the accused. Finally, it so happened that the accused did not adhere to the promise when the informant had to demand for the refund of that Rs. 11,000/-. The same being not paid any heed to, she lodged the FIR at Phulbani Town Police Station. On completion of the investigation, charge-sheet having been filed, the accused faced the trial. In the trial, the defence taken by the accused is that of complete denial. 3. The trial court, on evaluation of evidence of eight witnesses examined on behalf of the prosecution and one from the side of the defence, having accepted the version of the prosecution, as presented, has found the accused to have committed offence under section 420 of the IPC and accordingly, he has been sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 500/- in default to undergo simple imprisonment for one month. The appellate court being moved by the accused, no such fruitful result has come in his favour. 4. Learned counsel for the petitioner submits that the evidence of P.W. 3, who is the complainant, is most important in the case. It is his submission that when the deposition of P.W. 3 is given a dose reading, it can safely be said that the courts below ought not to have accepted her evidence. It is his further submission that in spite of the fact that the evidence of P.W. 3 suffers from number of suspicious features, which are sufficient to disbelieve her testimony; the courts below have, however, found her to be a truthful witness and have placed reliance on it. He, therefore, urges that it is a fit case for setting aside the judgment of conviction and order of sentence as those suffer from the vice of perversity. Learned counsel for the State submits all in favour of the impugned judgment of conviction and order of sentence. It is his submission that the evidence of P.W. 3 when has received full corroboration on all material particulars from the evidence of P.W. 4, 5 and 6, the courts below did commit no error in ultimately holding the prosecution to have established its case for commission of offence under section 420 of the IPC by the accused. 5. Keeping in view the above rival submission in the backdrop of the jurisdiction of this Court to interfere with the factual finding of the courts below in seisin of revision, the evidence on record need to be glanced at. It is the evidence of P.W. 3 that she had withdrawn an amount of Rs. 19,500/- from State Bank of India, Khajuriapada Branch in order to perform the marriage ceremony of her daughter, which had been seen by the accused. It is her further evidence that the accused thereafter approached P.W. 3 repeatedly in saying that he would arrange a job for her son in the Collectorate Office and one day, the accused accompanied by Binduru Behera came to her residence and told her to give Rs. 11,020/- to him so that he will arrange a job for her son, Reposing confidence on him, she first of all gave Rs. 76,020/- to the accused and sometime thereafter, the balance of Rs. 5,000/- was paid. 11,020/- to him so that he will arrange a job for her son, Reposing confidence on him, she first of all gave Rs. 76,020/- to the accused and sometime thereafter, the balance of Rs. 5,000/- was paid. It has not been stated by P.W. 3 that she had earlier acquaintance with the accused. One extremely doubtful feature arises that when P.W. 3 had withdrawn the amount of Rs. 19,500/- from the Bank to defray the expenses required to be meet for marriage of her daughter, how she would be parting with that money inviting serious - consequences. That apart, she is not stating as to how she met said expenses and under what arrangement. When it is said that the accused had taken money from P.W. 3 with the assurance that he would arrange a job for her son, it has come in evidence that P.W. 3 had no son of her own but had adopted a son and then aged around 30 years that too residing at the father's place of P.W. 1. It is her further evidence that when she had gone to the house of the accused, he had shown a fake order of appointment and told her to hand it over but actually did not give that. During cross-examination, this witness has stated that the accused had endorsed on a paper regarding receipt of money from her on both the occasions. So that document being the best piece of evidence to clinch the issue of payment of money by this P.W. 3 and its receipt by the accused. But that has not been admitted in evidence from the side of the prosecution. No such explanation is also coming forth which raises grave suspicion as to the payment of money by P.W. 3 to the accused. This aspect appears to have completely lost sight of. If the accused had no prior acquaintance with P.W. 3 and when money having been withdrawn, by P.W. 3 from the bank to meet the expenses of her daughter's marriage and its not that easy to part with the same, the story projected by the prosecution that the accused ran after P.W. 3 to arrange a job for her son and somehow induced P.W. 3 in making the payment does not appeal to the ordinary conscience. The evidence of P.W. 4, 5 and 6 being read together are not found to be providing no such corroboration on material particulars to the evidence of P.W. 3 and it has not been explained by P.W. 4 as to how he came to be present when the money in the first phase was given by P.W. 3 to the accused and so also the other two, i.e., P.W. 5 and 6. These witnesses appear to have been posed in the trial for the purpose. 6. For the aforesaid discussion of the evidence on record, this Court finds that the findings of the courts below that the accused cheated the informant by dishonestly inducing her to deliver cash of Rs. 11,020/- to him suffers from the vice of perversity. 7. In the upshot of above, the judgment dated 10.8.2005 passed by the learned Sessions Judge, Phulbani in C.R.A. No. 42 of 2000 confirming the judgment of conviction and order of sentence dated 24.08.2000 passed by the learned S.D.J.M., Phulbani in G.R. case No. 379 of 1994 (T.R. No. 56 of 1995) stand set aside. The accused shall be discharged of the bail bonds. 8. Accordingly, the criminal revision is allowed. The LCR be sent back forthwith.