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2019 DIGILAW 91 (ORI)

Akshya Kumar Mohanty v. State Of Orissa

2019-02-05

A.K.MISHRA

body2019
JUDGMENT A. K. Mishra, J. - This revision by accused petitioner is directed against the judgment dtd.27.03.2001 of learned Sessions Judge, Keonjhar in Criminal Appeal No.55 of 1995 in dismissing the appeal and thereby confirming the conviction of the accused petitioner U/s.393 of the Indian Penal Code and upholding the sentence R.I. for two years and fine of Rs. 1000/-, in default, R.I. for further two months in the judgement dated 25.08.1995 passed by learned J.M.F.C., Keonjhar in G.R. Case No.282 of 1991. 2. Put simply, the prosecution case is that on 11.5.1991 at about 8.45 P.M. the informant (P.W.5), a salesman had been to the shop of Santosh Kumar Behera (P.W.1) at Raisuan Bazar and after collecting money of Rs. 1800/-, kept the same in the hand bag. While coming back, the accused threatened him at the point of sword and causing injury, committed robbery of the bag containing money. On the filing of F.I.R. (Ext.4), Keonjhar Sadar P.S. Case No.39 dtd.11.5.1991 was registered U/s.394 of I.P.C. After completion of investigation charge-sheet was submitted. 3. Accused took the plea of denial. 4. Prosecution examined 5 witnesses, including the informant as P.W.5, the investigating officer as P.W.4, two occurrence witnesses as P.W.1 and P.W.2 and the medical officer as P.W.3. The injury reports of Santosh Kumar Behera (P.W.1) and one Padmanava Mohanta were marked as Ext.1 & 2. 5. The informant injured (P.W.5) did not disclose anything about the occurrence admitting compromise. He admits his signature (Ext.4/2) in the F.I.R. but stated that the same was not readover and explained to him. The investigating officer (P.W.4) has no direct knowledge about the incident so also P.W.3 Medical Officer. Basing upon the evidence of P.Ws.1 and 2, learned Lower Court convicted the accused U/s.393 I.P.C. and sentenced as above. In the appeal no fault was found therein. 6. In this revision, learned counsel for the petitioner submits that when the informant injured has not stated anything, the evidence of P.Ws.1 and 2 being contradictory to each other with regards to bag containing money, the same cannot be relied upon to base conviction. 7. Learned Addl. Standing Counsel supports the judgment on the grounds stated therein. 8. The revisional jurisdiction of this court U/s.397 and 401 of Cr.P.C. is limited and that is clearly stated in the decision reported in Kishan Rao Vrs. 7. Learned Addl. Standing Counsel supports the judgment on the grounds stated therein. 8. The revisional jurisdiction of this court U/s.397 and 401 of Cr.P.C. is limited and that is clearly stated in the decision reported in Kishan Rao Vrs. Sankar Gouda , (2018) AIR SC 3173 wherein their Lordships of Hon'ble Apex Court have held as follows:- "11. This Court has time and again examined the scope of Section 397/401 Cr.P.C. and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri , (1999) 2 SCC 452 , while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following: "5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." 9. The evidence of P.W.1 discloses that after overpowering the accused, he made over the cash bag to the agent and thereafter the accused threatened him to see. P.W.2 testified in his examination-in-chief that P.W.1 somehow overpowered the accused when he threw the cash bag outside and Sisira Mohapatra (informant) took away the bag and then the accused left the shop threatening P.W.1. This material contradiction in the evidence of P.Ws.1 and 2 is sufficient to create doubt about their credibility. Further no weapon is seized. Added to that, P.W.1 stated about that accused was armed with Bhujali, while F.I.R. disclosed the use of Sword. This material contradiction in the evidence of P.Ws.1 and 2 is sufficient to create doubt about their credibility. Further no weapon is seized. Added to that, P.W.1 stated about that accused was armed with Bhujali, while F.I.R. disclosed the use of Sword. When informant-injured does not come forward to unfold the incident on the ground of compromise, the edifice of prosecution is found crumbled down due to above material discrepancies and inter se inconsistencies. It is unsafe to base conviction based on such doubtful version. 9. In view of the above discussions I am of the considered opinion that both the courts below have failed to appreciate the evidence on record in its proper perspective. This glaring feature creating doubt in the prosecution story has been overlooked by both the courts below and thereby miscarriage of justice has been caused. The order of conviction and sentence to follow, are unsustainable. 10. The conviction and sentence of the petitioner-accused passed in the judgment dtd.25.8.1995 in G.R. Case No.282 of 1991 by learned JMFC, Keonjhar and upheld in Criminal Appeal No.55 of 1995 are hereby set aside. The accused is acquitted therefrom. He be set at liberty forthwith. The Revision is allowed. Sent back the L.C.R.