SHYAMA SUNDAR HANTAL Vs. STATE

JUDGEMENT

(1.) HAVING heard Mr. K. Patnaik for the Petitioner and Mr. B. Nayak, the learned Additional Government Advocate, I am of the view that the findings against the Petitioner recorded by the trial court holding him guilty of the charge of robbery and convicting him under Section 392 of the Indian Penal Code and sentencing him thereunder to undergo rigorous imprisonment for a period of three months maintained by the appellate court have been recorded without proper application of minds and without making an attempt to get at the truth on the basis of the evidence on record and for the reasons to follow, I find that to maintain the findings recorded by the two courts, concurrent though the findings are, would mean travesty of justice.

(2.) THE case against the Petitioner, deposed to by P.Ws. 1 to 5, was that on November 10, 1977, while four of them, namely, P.Ws. 1, 2, 3 and 5, were selling chillies and P.W. 4 was selling Ladu in the Kukumulugumma weekly market, the Petitioner, the Sarpanch of the locality, bargained with the persons selling chillis to sell this article at a lower rate and when P.W. 3 did not agree to the rate proposed by the Petitioner, the latter, by show of force, removed her basket and gunny bag containing chill is. On the first information report (Ext. 1) lodged by P.W. 1, a case was registered and on the completion of investigation, a charge -sheet under Section 392 of the Indian Penal Code was submitted. The Petitioner stood trial being charged of that offence with a plea of denial and false implication. Of the seven witnesses examined by the prosecution, P.Ws. 1 and 5 were said to be the eye -witnesses to the occurrence, P.W. 7 was a witness to the seizure of basket with chillis by the Investigating Officer and P.W. 6, the then officer -in -charge of the Orkel Police Station had investigated into the case. The Petitioner had not examined any witness in his defence. The trial court accepted the prosecution case and 80, too, the appellate court.

(3.) P .W. 2 had testified about offence of robbery against the Petitioner in the Court. He had, however, not made any such statement to the Investigating Officer and this omission had been brought to his notice and proved through the Investigating Officer. In a case of this nature, this could not be characterised as an inconsequential omission and must be taken as contradiction within the meaning of the Explanation to Section 162 of the Code of Criminal Procedure. P.W. 3 was, undoubtedly, a highly interested witness as she was said to be the victim. She had blurted out a statement in her evidence, manifestly false, to the effect that the stolen articles had been recovered from the possession of the Petitioner and given in their custody. This was not in the evidence of the Investigating Officer himself. This would show that P.W. 3 had scant regard for truth and her evidence should not have been accepted. P.Ws. 4 and 5 had stated about the removal of the articles by the Petitioner. On their own showing, P.Ws. 1 to 5 had been sel1ing articles in the weekly market and their allegation was that the Petitioner, by his highhanded acts, wanted to purchase chillis at a low cost. They could thus be said to be interested witnesses against the Petitioner. No allegation of theft had been made in the first information report and it would undoubtedly be clear from the materials on record that having reported about a case of outraging the modesty of P.W.3 and the use of abusive words, a case was later developed at the stage of investigation that the Petitioner had committed robbery.