Orissa High Court
Gobinda Sethi vs State Of Odisha on 21 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 230 of 2022
Gobinda Sethi .... Petitioner
Mr. D.K. Panda, Advocate
-Versus -
State of Odisha .... Opposite Party
Mr. S. Panda,
CGC
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER_
21.02.2023
Order No. 1. This matter is taken up through hybrid mode.
7.
2. As directed, the court below has submitted a report indicating
the period of custody undergone by the petitioner.
3. The petitioner in the present revision challenges the judgment
dated 24.12.2020 passed by learned Additional District and
Sessions Judge-cum-Special Judge (Vigilance), Sundargarh in
Criminal Appeal No.13/3 of 2016-2020 in partly allowing the said
appeal preferred by the present petitioner against the order of
conviction and sentence passed by learned JMFC, Rajgangpur in
2(c) CC No. 8 of 2007 (TR No. 411 of 2007). As per the said
judgment, the petitioner was convicted for the offence under
Section 3(a) of the R.P. (UP) Act and was sentenced to undergo
rigorous imprisonment for a period of two years. In appeal, the
substantive sentence only was modified to R.I. for one year.
4. The brief facts of the case are that on 18.04.2007, three
constables of Rajgangpur RPF Outpost, namely Sudarsan Tiwary,
Sita Ram Paswan and one Nimai Chand Manna were on duty from
2.20 A.M. onwards in the West-North Yard of Rajgangpur Railway
Station. At about 2.45 A.M. they noticed a person crossing the
railway line from platform nos. 2 and 3 carrying something heavy
on his left shoulder and moving in a suspicious manner. He was
detained and on search, he gave recovery of 24 numbers of railway
pendrol clips contained in the bag. He could not produce any
authority in support of such possession, rather confessed to have
committed theft of the said articles from the railway line near
Sagara SSP and was taking the same for sale. Accordingly, RPF
Post Rourkela Case No.8 of 2007 dated 18.04.2007 was registered
which corresponds to 2 (c)CC No. 08 of 2007 under Section 3(a) of
the Railway Property (Unlawful Possession) Act, 1966. On
completion of investigation P.R. was submitted against the
petitioner. He claimed innocence and was therefore put to trial.
Learned trial court (JMFC, Rajgangpur) examined eyewitnesses
including the informant and the inquiring officer Shaktipada
Mandal as P.W.4 and the eyewitnesses (Constables) Sudarshan
Tiwari and Sitaram Paswan) as P.Ws. 1 and 3 respectively. The
other witnesses were also official witnesses. The prosecution also
exhibited ten documents. On the other hand, the defence examined
one witness being the wife of the accused and exhibited two
documents.
5. On appreciation of the evidence on record, the trial court
convicted the accused for the offence and sentenced him as
aforesaid. The petitioner carried the matter in appeal which was
allowed in part by modifying the sentence to R.I. for one year.
6. Heard Mr. Debasis Kumar Panda, learned counsel for the
petitioner and Mr. S. Panda, learned CGC appearing for the
Railways.
7. Assailing the impugned judgments, Sri Panda, learned counsel
for the petitioner submits that the order of conviction is entirely
wrong having been based on the so called confession of the
petitioner before the Railway police and further that no independent
witnesses were examined to prove the occurrence. It is also
submitted that the allegedly stolen article was not properly proved
as such during trial.
8. Mr. S. Panda, learned CGC has contended that as per Section 8
(1) of the Railway Protection Force Act confession before the
railway police is admissible in law. He further submits that the
official witnesses examined in the case have clearly proved the guilt
of the accused and therefore, there is no reason to interfere with the
impugned order of conviction.
9. This Court has perused the impugned judgment of conviction
passed by the learned Magistrate as also the copies of depositions
of all the witnesses examined by the prosecution. Undoubtedly, all
are the official witnesses and no independent witness was
examined. However, it is well settled that only because the
witnesses examined by the prosecution happen to be official
witnesses, their version does not necessarily have to be viewed with
suspicion. On the contrary, in the absence of any proof of malafides
or harboring of ill will by the official witnesses against the accused,
their version become sacrosanct. On going through the version of
the prosecution witnesses, this Court finds the offence clearly
established. In view of such finding, the contentions raised
regarding the admissibility of the confession before railway police
becomes redundant. As regards the stolen article, it is seen that the
same was seized as per seizure list marked Exhibt-1. The pandrol
clips as such were admitted in evidence as M.O.1. Both P.Ws 1 and
4 have proved the same in Court. This Court therefore, finds no
merit in the contention raised by learned counsel for the petitioner
in this regard.
10. Thus on an overall consideration of the evidence on record,
this Court finds that the petitioner was rightly convicted by the trial
court. As regards the sentence imposed the appellate court modified
the same to one year of R.I. This Court is of the view that the
offence took place way back in the year 2007, i.e., nearly 16 years
before. The accused was aged about 32 years at that time, which
makes him aged nearly 50 years at present. That apart, from the
report submitted by the court below, it appears that the petitioner
has already spent six months in custody during trial. This Court is
therefore of the considered view that ends of justice would be best
served if the sentence is further modified to the period already
undergone by the petitioner.
11. In the result, the revision is allowed in part. While confirming
the order of conviction against the petitioner as passed by the trial
court and confirmed by the appellate court, the sentence is modified
to the period of detention already undergone by the petitioner
during trial.
12. The CRLREV is accordingly disposed of.
13. Urgent certified copy of this order be granted on proper
application.
(Sashikanta Mishra)
Judge
B.C. Tudu
