DEBENDRANATH BHAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) The present revision is against the concurrent findings of facts arrived at by both the courts below against the accused under Section 389 I.P.C. Initially, he was convicted for one year simple imprisonment and a fine of Rs. 1,000/- in default further sentence of imprisonment for six months but on appeal the findings arrived at by the trial Magistrate were confirmed. The sentence was, however, modified to three months R.I. and a fine of Rs. 200/-

(2.) The submission of the learned counsel for the petitioner is that there is no direct evidence of the actual removal of the pass book and the so called extra-judicial confession made by the petitioner before the witnesses is a very week type of evidence and should not have been relied upon by the courts below for conviction of the petitioner unless it is corroborated by other witnesses. His further submission is that the pass book and withdrawal form are not seized and are not marked as M.Os. They were not produced in Court. For this proposition, the learned counsel has submitted the written submissions along with the citations. In the alternative his submission is that the petitioner comes from a good family and he should not be sent to jail again and that the jail sentence be converted to sentence of fine.

(3.) The submissions of the learned counsel for the petitioner are opposed by the learned counsel for the State. She supports the judgments and orders passed by the Courts below. Though it is a revision petition the learned counsel has led me through the evidence recorded by the trial Magistrate. P.W. 2 who is the Branch Manager of the S.B.I. Charbatia. P.W. 2 deposed that the accused confessed before him that he had got a pass book in the house of Prakash Rao Patra and was trying to withdraw the amount of Rs. 4,980/-. This statement of P.W. 2 has been corroborated by Balbir Singh v. Stale of Punjab P.W. 3. In cross-examination, he states the accused admitted that he had stolen away the pass book of one Prakash Rao Patra. The witnesses have not been shaken on this point. Thus, there is ample corroboration of his statement of confession. It is not a case where the statement of confession was not corroborated as argued by the learned counsel for the petitioner. Even P.W. 5 the 1.0. as per his statement and as mentioned by the trial Magistrate, another C.R. case was pending against the accused deposes that the pass book, withdrawal form and the accounts were seized by him as per seizure list Ext. 9 in the present case and the originals were in C.R. Case No. 3013/84 against the accused. In the cross examination of P.W. 5 submits pass book marked MO. II in CR. Case No. 3013/84 were marked, which goes to show that while proving these documents the record of CR. Case No. 3013/84 was before the Court. As such, it cannot be said that the seized documents were not produced before the Court. Even otherwise as held in Sri Tirtha Naik v. State which was a case under Section 47 (a) of the Bihar and Orissa Excise Act, it was held if 10 liquor is not produced, it cannot be conclusively held that accused was not in possession of it. Without such production also, Court can convict a person if otherwise it accepts the evidences that accused was in possession of 10 liquor.T In this case, there is clear evidence that the pass book M.O. II was produced by the accused before P.W. 2 along with withdrawal form, which was seized by P.W. 5 immediately thereafter. It has been accepted by both the courts below. This is a finding of fact and cannot be denied.