Rasananda Bindhani and anr. Vs. State of Orissa

Rasananda Bindhani and anr. vs State of Orissa

Disposition Revision dismissed Court Orissa Decided Jul 19, 1991

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Citation: sooperkanoon.com/536244
Court: Orissa High Court
Judge: A. Pasayat, J.
Decided On: Jul 19, 1991
Case Number: Criminal Revision No. 41 of 1988
Subject: Criminal
Disposition: Revision dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Criminal
Outcome / disposition: Revision dismissed
Acts & sections: Evidence Act, 1872 - Sections 114; ;Indian Penal Code (IPC), 1860 - Sections 379 and 411

Parties & Advocates

Appellant / Petitioner

Rasananda Bindhani and anr.

Advocate D.P. Dhal and ;R.N. Bisoi and ;S.K. Nayak-3, Advs.

Respondent

State of Orissa

Advocate Addl. Standing Counsel

Legal References

Acts: Evidence Act, 1872 - Sections 114; ;Indian Penal Code (IPC), 1860 - Sections 379 and 411
Cases Referred: State of Orissa v. Udaya Pradhan. The
Reported In: 1992CriLJ121

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ..........the houses of the petitioners are not commonly available in the market and, therefore, a presumption that possession thereof was unlawful can be made. illustration as to section 114 of the indian evidence act, 1872 is applicable to such a case. the facts of the present case are almost akin to these involved in (1965) 31 clt 1022: 1965 (1) cri lj 746, state of orissa v. udaya pradhan. the said case involved theft of telegraph wire. i do not find any infirmity in the process of reasoning or evaluation of evidence as done by the courts below. while, therefore, exercising revisional jurisdiction, i do not find any scope for interference. since the articles are not available in the open market, the petitioners' possession was unauthorised and unlawful. therefore, there was nothing wrong in the conclusions drawn by the courts below about guilt of the petitioners.7. the residual question is whether the sentence awarded is proper. the learned counsel for the petitioners submits that the petitioners are the sole bread earners of their families and if they are sent to jail their family members shall be thrown to starvation. the learned counsel for the state submits that considering large number of theft of electric wires causing disruption of supply of electricity, and inconvenience caused thereby, the sentence is rather liberal.8. on consideration of the rival submissions, i find that the petitioners are young persons. there is no material of any previous accusation. sentence should be deterrent, so that citizens will have to think twice before attempting to commit an unauthorised and unlawful act similar to that committed by the petitioners. at the same time, it should not be harshly rigorous so as to wipe out any chance of reformation, which is the call of common day criminal jurisprudence. considering all these, i feel sentence of one years' rigorous imprisonment will meet ends of justice.9. the criminal revision is dismissed subject to aforesaid modification of.....

Full Judgment

A. Pasayat, J.

1. Petitioners assail their conviction and sentence as awarded by the learned Judicial Magistrate, first class, Baripada and affirmed by the learned Sessions Judge, Baripada.

2. Prosecution case is that on 12-9-1982 a first information-report was lodged by the Electrical Sectional Officer, Construction, Betnoti alleging that in the night between 11-9-1982 and 12-9-1982 Low tension conductors of 12 spans had been stolen from Sarbana sub-station. During investigation and acting on some information, houses of the present petitioners were searched and some cut wires, aluminium articles and semi-finished aluminium products were seized. The seized aluminium wires were sent to the S.D.O., Electrical for opinion as to whether they are low tension conductors used by the Orissa State Electrical Board. The answer was in the affirmative. Therefore, the two petitioners and another Rabindra Kumar Patil (since acquitted) were sent for trial for offences punishable under Sections 379 and 411 of the Indian Penal Code, 1860 (in short 'IPC').

Plea of the petitioners was one of denial of the occurrence.

Eight witnesses were examined to further the case of prosecution.

On evaluation of evidence, it was held that the guilt of the petitioners was established beyond shadow of doubt. The petitioners were convicted for the offence punishable under Section 411, IPC and sentenced to rigorous imprisonment for two years. The appellate court affirmed the conviction and sentence awarded by the trial court.

5. Main plank of the petitioners' argument is that there was no positive material to show that the materials seized from the houses of the petitioners were stolen property and, therefore, their possession cannot be said to be unlawful. It is submitted that they are blacksmiths by profession, and had to undertake repairing works of aluminium articles. Learned counsel for the State submits that possession of materials which are not available in open market clearly establishes that the petitioners were guilty of offences as alleged.

6. On evaluation of materials placed and evidence on record, I find that the materials which were seized from the houses of the petitioners are not commonly available in the market and, therefore, a presumption that possession thereof was unlawful can be made. Illustration as to Section 114 of the Indian Evidence Act, 1872 is applicable to such a case. The facts of the present case are almost akin to these involved in (1965) 31 CLT 1022: 1965 (1) Cri LJ 746, State of Orissa v. Udaya Pradhan. The said case involved theft of telegraph wire. I do not find any infirmity in the process of reasoning or evaluation of evidence as done by the courts below. While, therefore, exercising revisional jurisdiction, I do not find any scope for interference. Since the articles are not available in the open market, the petitioners' possession was unauthorised and unlawful. Therefore, there was nothing wrong in the conclusions drawn by the courts below about guilt of the petitioners.

7. The residual question is whether the sentence awarded is proper. The learned counsel for the petitioners submits that the petitioners are the sole bread earners of their families and if they are sent to jail their family members shall be thrown to starvation. The learned counsel for the State submits that considering large number of theft of electric wires causing disruption of supply of electricity, and inconvenience caused thereby, the sentence is rather liberal.

8. On consideration of the rival submissions, I find that the petitioners are young persons. There is no material of any previous accusation. Sentence should be deterrent, so that citizens will have to think twice before attempting to commit an unauthorised and unlawful act similar to that committed by the petitioners. At the same time, it should not be harshly rigorous so as to wipe out any chance of reformation, which is the call of common day criminal jurisprudence. Considering all these, I feel sentence of one years' rigorous imprisonment will meet ends of justice.

9. The criminal revision is dismissed subject to aforesaid modification of sentence.

Same Court & Year Orissa · 1991 Same Parties Rasananda Bindhani and anr. vs State of Orissa Same Subject Criminal Same Judge A. Pasayat, J. Acts & Sections Evidence Act, 1872 - Sections 114; ;Indian Penal Code (IPC), ...

Criminal