Orissa High Court
Ajaya Kumar Patra vs Sstate Of Orissa …. Opposite Party on 6 March, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.517 of 2006
Ajaya Kumar Patra .... Petitioner
Mr. A.K. Nanda, Advocate
-Versus-
SState of Orissa .... Opposite Party
Ms. B. Dash, ASC
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING: 29.11.2025
DATE OF JUDGMENT: 06.03.2026
1.
Instant revision is filed by the petitioner in terms of
Section 401 Cr.P.C. read with Section 397 Cr.P.C. assailing
the impugned judgment passed in connection with Criminal
Appeal No.8 of 2005 by the learned Adhoc Additional
District and Sessions Judge (FTC), Gunupur dated 28th June,
2006 for having confirmed the order of conviction and
sentence directed against him by learned J.M.F.C., Bissam
Cuttack in G.R. Case No.110 of 1995 (T.R. No.1057 of 1995)
on the grounds inter alia that the same is liable to be
interfered with for not being in accordance with law and in
conformity with the materials on record.
2. The petitioner and other accused persons were
chargesheeted under Sections 379 and 411 read with 34 IPC
and Section 3 of Railway Property (Unlawful Possession)
Act, 1966 (in short, ‘the Act’) and all of them faced trial and
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ultimately, the learned J.M.F.C., Bissam Cuttack acquitted
others but found him guilty for the offences punishable under
Sections 411 read with 34 IPC and Section 3 of the Act and
imposed a sentence to undergo R.I. for a period of one year
and to pay a fine of Rs.1000/- with a default sentence of R.I.
of 2 months. No separate sentence was imposed for the
offence under Section 411 IPC and the direction as above
was only for the offence punishable under Section 3 the Act.
The learned J.M.F.C., Bissam Cuttack, however, found the
petitioner not guilty under Section 379 read with Section 34
IPC like the other accused persons.
3. The prosecution case in brief is that during the night of 18th
and 19th June, 1995 at about 2.00 AM, the OIC of Chandili
P.S., as per the direction of S.P., Rayagada, being
accompanied with PS staff and S.I. of Police, Therubali
Outpost and others proceeded to the a village to conduct raid
in respect of illegal transportation of iron sleepers from
nearby railway track running between Visakhapatnam and
Therubali and on reaching there, found fresh tyre impression
of a truck on the western side of the State Highway near a
milestone and by following the same, as it led them towards a
bushy jungle area, reached the spot and found a truck bearing
Regd. No.AHJ 8389 loaded with railway iron sleepers and
some persons belonging to labour class were being engaged
for loading of it, but they managed to flee seeing the police
party, whereas, the petitioner and other accused persons
present were found involved in supervising such loading
work. Due to theft of iron sleepers belonging to railway and
its possession by the accused persons, all of them were
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chargesheeted for the alleged offences and as earlier stated,
except the petitioner, others were acquitted of the charges
levelled. The learned J.M.F.C., Bissam Cuttack discussed the
evidence on the charges framed and received from the side of
the prosecution as defence adduced no evidence, either oral
or documentary. The learned court below having been
approached by the petitioner, disposed of the appeal and
dismissed it, confirming the order of conviction and sentence
with a conclusion that he was present at the spot and was
duly identified by the prosecution witnesses examined. The
findings arrived at by the learned J.M.F.C., Bissam Cuttack
have been entirely confirmed in appeal upholding the order of
conviction and sentence, the petitioner filed the revision.
4. Heard Mr. Nanda, learned counsel for the petitioner and
Ms. Dash, learned ASC for the State.
5. Mr. Nanda, learned counsel for the petitioner would submit
that there are many discrepancies in the evidence of the
prosecution but it has not been taken judicial notice of the
learned courts below. It is contended that the impugned
judgments as at Annexures-1 & 2 are against the facts and
law and hence, liable to be set aside. The contention is that
some of the witnesses deposed about absence of the petitioner
at the spot and that apart, there are series of contradictions in
the evidence of P.Ws.8, 9, 10 and 11 with regard to the
occurrence, but it has not been duly taken cognizance of. The
submission is that the independent witnesses, namely, P.Ws.6
& 7 did not support the prosecution case. It has been alleged
that the petitioner being the Joint Secretary of the Constable
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Association of the district, there was ill-feeling against him
by the higher officials including S.P., Rayagada. The further
contention is that the material witness, namely, P.W.5
although revealed six persons to have been apprehended at
the spot but could only able to identify the petitioner and
since, was an office bearer of the Association at the relevant
point of time, harbouring ill-intention, he was entangled in
the case and therefore, the allegations are ill-motivated and
outrightly false but the learned courts below discarded such
plea and though disbelieved offence of theft to have been
committed but for no just reason, convicted him under
Section 411 read with 34 IPC and Section 3 of the Act.
5.1. In course of hearing and in support of contentions
advanced, Mr. Nanda, learned counsel cited the following
decisions, such as, Sd Shabuddin Vrs. The State of
Telangana in Criminal Appeal No.3605 of 2025 arising out
of SLP (CRL) No.16117 of 2024; Bhagwat Rajaram Patil
Vrs. The State of Maharashtra & another 2014 ALL MR
(Cri) 702; and Raj Kumar @ Suman Vrs. State (NCT of
Delhi) of the Apex Court in Criminal Appeal No.1471 of
2023 dated 11th May, 2023. It is contended by Mr. Nanda,
learned counsel that the essential ingredients of Section 411
IPC have not been fulfilled, hence, the petitioner could not
have been convicted thereunder nor for any such possession
of the railway properties under Section 3 Act, which has been
completely lost sight of the learned courts below and not only
that, no evidence is available on record to show that the iron
sleepers belong to the railway as any such evidence received
from the side of the prosecution failed to establish it when the
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law demands its proper identification, which should not be
based on opinion of any witness, who is not having the
experience and expertise in that regard. The contention is that
no any witness of the railway has been examined by the
prosecution having the knowledge to identify the railway
properties and therefore, the order of conviction under
Section 3 of the Act cannot be sustained in law, which is
entirely based on the testimony of the police officials
examined from the side of the prosecution. The contention is
that in absence of any such expert evidence in conformity
with Section 45 of the Indian Evidence Act, the learned
courts below could not have reached at such conclusion,
which is grossly erroneous and liable to be set at naught and
in that connection, the decision in Bhagwat Rajaram Patil
(supra) has been placed relied on. That apart, the petitioner
was not confronted with all the incriminating materials, while
he was examined under Section 313 Cr.P.C., which is
statutory mandate and it is not in compliance of the Apex
Court’s decision in Raj Kumar @ Suman (supra).
6. Ms. Dash, learned ASC for the State submits that the
official witnesses, who had been to the spot including P.W.5
proved the presence of the petitioner and the prosecution case
is successfully established. The recovery and seizure of iron
sleepers of the railway have also been proved on record.
Notwithstanding the acquittal order of the accused persons,
for the reason that the petitioner was identified by the official
witnesses even though not by P.Ws.6 & 7, a case for having
received the stolen articles has been established, as further
submitted. For such possession of the railway properties, the
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petitioner has also been rightly convicted under Section 3 of
the Act irrespective of any such decision of the learned courts
below with respect to other accused persons having been
acquitted and according to Ms. Dash, learned ASC, the
petitioner cannot take advantage of such an acquittal order,
when he was identified being present at the spot supervising
the loading of the iron sleepers.
7. Perused the LCR and gone through the prosecution
evidence received during trial.
8. The actual fact of theft of the iron sleepers has not been
established on a reading of the evidence of the witnesses
examined from the side of the prosecution, since its source
could not be unearthed. In other words, no one has been fixed
with the responsibility regarding theft of the iron sleepers.
From the materials on record, this Court finds that the seized
vehicles were at the spot and the iron sleepers were found
loaded on a truck but who else were present and how they
were involved could not be elicited during investigation. The
other accused persons present have not been alleged of
having received the stolen articles either. The liability of
receiving the iron sleepers has been fastened on the
petitioner, who was alleged to be present at the spot like
others. According to the prosecution, absence of any such
explanation of the petitioner being present there revealed his
dishonest intention and is a proof of him having received the
stolen properties. The Court is completely in disagreement
with the above conclusion of the learned J.M.F.C., Bissam
Cuttack for the fact that he was present at the spot like other
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accused persons, but there has been no distinct evidence on
record to suggest that he was in possession of the stolen
articles as a receiver. The petitioner has been identified by the
police officials including P.W.5. It is quite natural that the
petitioner being a Constable could easily be identified by
other police officials on reaching the spot. Of course, it is
unusual to expect the presence of the petitioner at such an
odd hour of night but that by itself is not sufficient to
attribute malfeasance against him.
8.1. It is revealed from the record that the independent
witnesses, namely, P.Ws.6 & 7 turned hostile not having
identified the petitioner being present at the spot. It is of
course not to disbelieve the evidence of the official witnesses
in absence of any corroboration, but to hold the petitioner
responsible for receiving the stolen articles and possession of
the iron sleepers, it does not receive any confirmation from
the evidence of the prosecution. When theft is not established
and other accused persons have been acquitted, the Court is
of the considered view that the petitioner could not have been
held liable as a receiver of the iron sleepers merely for being
there at the spot. No specific evidence is on record to suggest
that the petitioner was primarily responsible in the loading of
the iron sleepers in the truck. All other accused persons
including the petitioner have been alleged of supervising the
loading of the iron sleepers at the time when police party
arrived. If others have been acquitted, it is not understood,
how and on what basis, the petitioner has been singled out
and held responsible as a receiver of the railway properties.
Regarding the claim that the higher officials of the petitioner
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having had bad intention to falsely implicate him, it is not
borne out of record. But the fact remains, in order to prove
and establish that the petitioner was responsible for receiving
the stolen articles, something more than the evidence led by
the prosecution was needed. If other accused persons
including the petitioner have not been found guilty of having
committed theft, one fails to understand how the learned
courts below reached at a conclusion that he was one among
the receivers of the stolen articles. As to who is responsible
for the theft and who of all the accused persons received the
iron sleepers is not discernible from the record. The petitioner
being a Constable and merely for his presence at the spot, any
such conclusion regarding him to have received the stolen
articles would not be just and proper.
9. One of the conditions sine qua non to hold a property in
possession of an accused as stolen, the fact of theft is to be
established. If someone received stolen property fully
knowing or having reason to believe that same is a subject of
theft is punishable under Section 411 IPC. Even assuming
that the iron sleepers to be the properties of the railway and
found loaded in a truck and hence, theft to have been
committed but there is total absence of evidence to establish
that the petitioner was the receiver of it. The Apex Court in
Sd Shabuddin (supra) has concluded that to hold an accused
liable under Section 411 IPC, it has to be established that the
property in his possession is a stolen one. In absence of any
concrete evidence led by the prosecution towards receiving
the iron sleepers, the Court is of the view that the petitioner
could not have been held guilty for the offence under Section
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411 IPC, hence, the learned courts below can be said to have
committed gross error in reaching at such a conclusion.
10. Admittedly, no expert evidence has been received to
prove the fact that the iron sleepers belong to the railway. It
was for the prosecution to lead evidence to establish that the
properties found loaded in the truck belonged to the railway.
The identification of the iron sleepers by the official
witnesses, in absence of any such evidence in terms of
Section 45 of the Indian Evidence Act, one has to arrive at a
conclusion that the petitioner cannot either be held
responsible for being in possession of such properties and
hence, liable for punishment under Section 3 of the Act. In
fact, in Bhagwat Rajaram Patil (supra), it is concluded by
Bombay High Court that identification of railway properties
is not to be assumed and accepted on the basis of opinion of a
witness unless he is specially skilled or has knowledge or
training on such identification claiming that it belongs to the
railway. No one from the railway having been examined for
identification of the iron sleepers, the Court is of the view
that the evidence in that regard is completely deficient.
Nevertheless, even assuming for the sake of argument that
the seizure articles belong to the railway but according to the
Court, when there is no evidence in clear terms to prove that
the petitioner to be the receiver of the same or entirely
responsible for being in possession of it in exclusion of all
others and that the co-accused persons have not been found
guilty under Sections 379 and 411 IPC and Section 3 of the
Act, no any liability can be fastened on him. Having said that,
considering the submission of Mr. Nanda, learned counsel for
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the petitioner and Ms. Dash, learned ASC for the State, the
final conclusion of the Court is that there is no cogent and
credible evidence to prove the petitioner’s involvement in
juxtaposition to the order of the acquittal vis-à-vis the co-
accused persons and all such aspects having not been duly
taken care of even by the learned court below while dealing
with the appeal and dismissing it, the petitioner should have
to be treated equally extending parity.
11. Accordingly, it is directed.
12. In the result, the revision stands allowed. As a necessary
corollary, the impugned judgments as per Annexures-1 & 2
are hereby set aside directing acquittal of the petitioner for
the alleged offences under Section 411 IPC and Section 3 of
the Act in terms of Section 248(1) Cr.P.C. and as a result, he
is directed to be set at liberty forthwith with the cancellation
of the bail bonds executed by him.
(R.K. Pattanaik)
Judge
Alok
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 09-Mar-2026 18:30:46
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