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Judgment
V. Narasingh, J.
Heard learned counsel for the Petitioner and learned counsel for the State.
This Criminal Revision has been filed assailing the judgment dated 23.09.2003 passed by the learned Addl. Sessions Judge(I), Dhenkanal, in Criminal Appeal No.24 of 2003/08 of 2003 thereby affirming the judgment dated 07.04.2003 passed by the learned Sub-Divisional Judicial Magistrate, Dhenkanal in G.R. Case No. 42 of 1999 (T.C No.194 of 2000) qua the accused-Petitioner, whereby the Petitioner was convicted for commission of offences under Sections 3801 and 4572 of the IPC and sentenced to undergo R.I. for a period of two years and to pay a fine of Rs.2000/- (Rupees Two Thousand), in default, to undergo R.I. for a period of six months on each count and it was further directed that the substantive sentences shall run concurrently, while the default sentences shall run consecutively.
The Petitioner, as an accused, faced trial for commission of offences under Sections 3801 and 4572 of the IPC along with co-accused Khetra @ Kailash Chandra Nayak. The case of the prosecution, in brief, is that the present Petitioner, along with the co-accused, committed theft of a Hero Honda motorcycle bearing No. WB-34C-6169, owned by one Nrusingh Rath Mishra, who is the brother-in-law of Nagen Kumar Mishra (P.W.1), by breaking the grill gate of the verandah of the house of P.W.1 while the vehicle was parked there. A constable (P.W.5), accompanying a Police officer (P.W.8), was patrolling on the N.H. 42 Cuttack-Sambalpur road, near Mahisapat, where the culprits were found riding the motorcycle in question and when being signaled to stop by the Police (P.W.8), they did not stop and, as ill luck would have it, the vehicle slipped and the Petitioner was caught red-handed at the spot while the other co-accused escaped and the vehicle was seized as well. Thereafter, on 10.01.1999, an FIR was filed by the informant (P.W.1) against unknown accused persons and after completion of the investigation, a charge-sheet was filed under Sections 3801 and 4572 of the IPC against the Petitioner and co-accused.
To drive home the charge, the prosecution relied on 8 witnesses, of whom P.W.1, the informant, P.W.2 & 3, two public witnesses, P.W.8, the I.O. and P.W.5, the other police personnel who accompanied the I.O., are of significance. Several documents were exhibited and marked as Exts.1 to 2 by the prosecution.
No evidence was adduced on behalf of the defence.
On going through the materials on record, while acquitting the co-accused and the accusation being solely on account of the statement of the co-accused, the Trial Court found the Petitioner guilty of commission of offences under Sections 3801 and 4572 of the IPC and was directed to undergo R.I. for a period of two years and to pay a fine of Rs.2,000/-(Rupees Two Thousand), in default, to undergo R.I. for a period of six months on each count and further directed the substantive sentences shall run concurrently, while the default sentence shall run consecutively.
On appeal being preferred, the Appellate Court did not find any infirmity in the appreciation of evidence and affirmed the conviction and the sentence imposed. Assailing the same, the present Criminal Revision has been filed.
Learned counsel for the Petitioner, Mr. Panda, submits that the appreciation of evidence by the Trial Court as well as the Appellate Court is ex facie perverse so as to warrant interference by this Court in exercise of its revisional jurisdiction, notwithstanding the contours of exercise of such jurisdiction.
To fortify his submission, learned counsel for the Petitioner, Mr. Panda, has relied upon the following judgments:
Sharad Birdichand Sarda v. State of Maharashtra3
Ramji Prasad Jaiswal @ Ramjee Prasad and Ors. v. State of Bihar4
Hamumant v. State of Madhya Pradesh5
Baiju v. State of Madhya Pradesh6
Agnoo Nagesia v. State of Bihar7
K. Chinnaswamy Reddy v. State of A.P.8
Nanda Gopalan v. State of Kerala9
5-A. The Apex Court in the case of Sharad Birdichand (supra)3 observed that any incriminating circumstance not explicitly put to the accused during his examination under Section 31310 of the Cr.P.C. must be excluded from evidence and cannot be used for conviction.
The relevant portion of the said judgment is extracted hereunder;
“xxx xxx xxx
144.To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat; AIR 1979 SC 1566 where the following observations were made:
“In the first place, he stated that on the personal search of the appellant a chedi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant....”
145.It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section. have to be completely excluded from consideration. xxx xxx xxx” (Emphasized)
5-B. In the case of Ramji Prasad (supra)4, the Apex Court noted that the examination under Section 31310 of the Cr.P.C. was mechanical as only general questions were put without placing the specific incriminating evidence brought on record by the prosecution witnesses, constituting a clear breach of Section 31310 of the Cr.P.C. and the principle of audi alteram partem, causing serious prejudice and vitiating the trial if prejudice is shown.
5-C. In the case of Hamumant (supra)5, it was observed thus;
“xxx xxx xxx
10.When the court of first instance and the court of appeal arrive at concurrent findings of fact after believing the evidence of a witness, this Court as the final court does not disturb such findings, save in most exceptional cases. But where a finding of fact is arrived at on the testimony of a witness of the character of Gadgil and the courts below depart from the rule of prudence that such testimony should not be accepted unless it is corroborated by some other evidence on the record, a finding of that character in the circumstances of a particular case may well be reviewed even on special leave if the other circumstances in the case require it, and substantial and grave injustice has resulted.........” xxx xxx xxx”
5-D. In the case of Baiju (supra)6, the Apex Court observed that mere recovery of stolen property is insufficient to establish the graver offence without additional evidence.
5-E. In Agnoo Nagesia (supra)7, the Apex Court held that a confession made to a police officer is inadmissible under Section 2511 of the Evidence Act.
5-F. In the case of K. Chinnaswamy Reddy (supra)8, it was observed by the court that revisional jurisdiction may be exercised where the findings suffer from legal error or result in miscarriage.
5-G. In the case of Nanda Gopalan (supra)9, the Apex Court, while referring to the Judgment of State of M.P. v. Ghanshyam Singh12, noted that the sentence imposed must be just and proportionate to the nature and gravity of the offence, keeping in view the prescribed punishment, the mitigating and extenuating circumstances, and other attending circumstances.
Learned counsel for the State, Mr. S. Panigrahi, on the other hand, opposes such prayer and submits that there is no infirmity in the judgment of the Appellate Court warranting interference.
It would suffice to refer to the decision of the Apex Court in the case of Malkeet Singh Gill v. State of Chhattisgarh13, wherein the boundaries in exercise of the revisional jurisdiction in a criminal matter has been laid down. The Apex Court, in no uncertain terms, clarified that there cannot be any absolute embargo regarding appreciation of evidence but since exercise has to be undertaken sparingly in a measured manner, each case has to be dealt with in the backdrop of its peculiar facts.
For convenience of ready reference, the relevant excerpt of the said Judgment is extracted hereunder;
“xxx xxx xxx
10.Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. xxx xxx xxx” (Emphasized)
This Court is conscious of the fact, while exercising revisional jurisdiction, it does not possess co-extensive powers of appreciation of evidence as that of an Appellate Court. [Ref: Mahabir v. State of Haryana14]
On the touchstone of the aforementioned principles, the matter has to be adjudicated.
It is the case of the prosecution that the theft of the motorcycle in question took place on 10.01.1999 and the Petitioner was found to have it in possession on 19/20.01.1999.
This Court perused the statement recorded under Section 31310 of the Cr.P.C. relating to the accused's examination.
For convenience of reference, the same is called out hereunder:
On a bare perusal of the said statement, it can be seen that the Petitioner-accused’s answer as noted above only related to the question of theft of the vehicle on 10.01.1999.
The Trial Court, however, jumped to the conclusion based on the assumption that the present Petitioner was the author of the crime notwithstanding his answer to the query and evidence on record.
The importance of the statement under Section 31310 of the Cr.P.C. needs no elaboration. In this context, respectful reference can be made to the judgment of the Apex Court in the case of Ramji Prasad Jaiswal v. State of Bihar15, which is extracted hereinunder:
“xxx xxx xxx
35.After surveying the law on this print, let us revert back to the facts of the present case. The manner in which the trial court had recorded the statements of the Appellants under Section 313 Code of Criminal Procedure was not at all in tune with the requirements of the said provision as explained by this Court as discussed supra.
36.Four questions generally were put to the Appellants, that too, in a most mechanical manner. These questions did not reflect the specific prosecution evidence which came on record qua the Appellants. As all the incriminating evidence were not put to the notice of the Appellants, therefore, there was a clear breach of Section 313 Code of Criminal Procedure as well as the principle of audi alteram partem. Certainly, this caused serious prejudice to the Appellants to put forth their case. Ultimately, such evidence were relied upon by the court to convict the Appellants. xxx xxx xxx”
Unfortunately, this aspect has not been considered by the Trial Court and has also escaped the scrutiny of the Appellate Court.
Referring to the same, the learned counsel for the Petitioner, Mr. S. Panda, submits that grave prejudice has been caused to the Petitioner and, as such, the appreciation of evidence is ex facie perverse, thereby clothing this Court with the power to interfere with the concurrent finding. He further submits that, notwithstanding the constraints on the exercise of such jurisdiction, non-interference would result in miscarriage of justice.
On going through the evidence on record, it is seen that the Courts have glossed over such a vital aspect relating to import of Section 31310 of the Cr.P.C and there is nothing on record to connect the Petitioner with the crime in respect of which the FIR in question was instituted on 10.01.1999. It is also not in dispute that no charge has been framed against the Petitioner in respect of the offence of being a received of stolen property.
It is submitted by the learned counsel for the Petitioner that the non-framing of charge in respect of the distinct offence under Section 41116 of the IPC caused prejudiced to the Petitioner.
Per contra, the learned counsel for the State submits that no prejudice has been caused since the offence under Section 41116 of the IPC is not a higher offence.
Considering the rival submissions, this Court thinks it proper to alter the conviction to one under Section 41116 of the IPC and directs that the ends of justice would be sub-served if the sentence is confined to the period of incarceration already undergone. Imposition of fine is set-aside.
Accordingly, the CRLREV stands disposed of. Imposition of fine is set-aside.
Footnotes
- 1.380. Theft in dwelling house, etc.—Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- 2.457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.—Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
- 3.Sharad Birdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
- 4.Ramji Prasad Jaiswal @ Ramjee Prasad and Ors. v. State of Bihar, 2025 INSC 738.
- 5.Hamumant v. State of Madhya Pradesh, (1952) 2 SCC 71.
- 6.Baiju v. State of Madhya Pradesh, (1978) 1 SCC 588.
- 7.Agnoo Nagesia v. State of Bihar, AIR 1966 SC 119.
- 8.K. Chinnaswamy Reddy v. State of A.P., 1962 SCC OnLine SC 32.
- 9.Nanda Gopalan v. State of Kerala, (2015) 11 SCC 137.
- 10.313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court— (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other
- 11.25. Confession to police officer not to be proved.—No confession made to a police officer, shall be proved as against a person accused of any offence.
- 12.State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
- 13.Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204.
- 14.Mahabir v. State of Haryana, 2025 SCC OnLine SC 184.
- 15.Ramji Prasad Jaiswal v. State of Bihar, 2025 SCC OnLine SC 1182.