Orissa High Court
Nilu @ Nilesh Kumar Jain vs State Of Orissa …. Opposite Party on 23 February, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLREV No.926 of 2009
Nilu @ Nilesh Kumar Jain .... Petitioner
Mr. D.P. Dhal, Senior Advocate
-Versus-
State of Orissa .... Opposite Party
Mr. S. Swain, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING: 13.11.2025
DATE OF JUDGMENT:23.02.2026
1.
Instant Revision under Section 401 read with Section 397
Cr.P.C. is at the behest of the petitioner assailing the legality,
correctness and judicial propriety of the impugned judgment
dated 11th August, 2009 passed in connection with Criminal
Appeal No.40/31 of 2005-2006 by the learned Additional
Sessions Judge, Nuapada, whereby, the order of conviction and
sentence directed against him in G.R. Case No.117/98 (T.R.
No.575 of 1998) by the learned S.D.J.M., Nuapada for an
offence under Section 379 IPC has been confirmed on the
grounds inter alia that such decision is bad in law and hence,
therefore, liable to be interfered with and set at naught in the
interest of justice.
2. The prosecution story in brief is that the informant, a police
constable, lodged a written report at the IPC alleging therein
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that while he along with another constable named with a local
Gramarakshi were engaged in guarding an accident vehicle
bearing registration No.OR-H-5268 and a motor cycle at
Mundapada, the petitioner and the accused driver forcibly
removed it from their custody. Upon such a report lodged,
Komna PS Case No.29 dated 15th May, 1998 was registered
under Section 379 read with 34 IPC With the registration of the
case, investigation was concluded and finally the chargesheet
was filed against the petitioner and the driver accused of
having removed the alleged truck from the police custody. In
course of trial, the prosecution examined nine witnesses and
proved as many as five documents in support of its case,
whereas, the defence examined none, however, proved a copy
of the judgment in G.R. Case No.103 of 1998 of the learned
Chief Judicial Magistrate, Nuapada. Considering the evidence
received from both the sides, learned S.D.J.M., Nuapada
concluded that the accused driver is not found guilty for the
alleged offence, hence, he was acquitted therefrom, whereas,
held that the petitioner is responsible for removal of the truck
in question from the accident spot without authority and
therefore, convicted him for an offence of theft and sentenced
him to undergo R.I. for 6 months with the pre-detention
period, if any, undergone by him to be set off in terms of
Section 428 Cr.P.C. Being aggrieved of the same, the
petitioner preferred appeal before the learned court below,
which was disposed of, confirming the order of conviction and
sentence vis-ꞻ-vis the petitioner, hence, the revision is filed.
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3. Heard Mr. Dhal, learned Senior Advocate appearing for the
petitioner and Mr. Swain, learned AGA for the State.
4. According to the petitioner, the order of conviction and
sentence imposed against him is without properly considering
and appreciating the evidence on record. It is contended that
the petitioner never removed the vehicle from the spot and
regard being had to the material evidence with contradictions,
a case of theft is not proved and established, but the learned
courts below ignoring the same, directed conviction for an
offence under Section 379 IPC. It is the claim of the petitioner
that the accused driver has been let off from the charge
levelled, whereas, he has been convicted on the same set of
evidence, hence, the impugned judgment of the learned court
below for having confirmed the conviction and sentence
cannot be sustained in law. The further claim is that there is
discrepancies in the date, time and place of lodging of the
F.I.R. in juxtaposition to the seizure of alleged vehicle and its
zimanama in favour of the petitioner which has been
completely lost sight of by the learned court below. Under the
above circumstances, it is pleaded that the impugned decision
in appeal confirming the order of conviction and sentence
directed by learned S.D.J.M., Nuapada deserves to be set aside,
followed by an acquittal order.
5. Gone through the LCR.
6. The vehicle of the petitioner met with an accident and in that
connection, it is alleged in the F.I.R. marked as Ext. 1 that the
petitioner and the other accused removed the same from the
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spot without the permission of the police. A constable on duty
lodged the said report alleging such removal of the truck by the
petitioner and the co-accused. It has been alleged that the
vehicle after having met with an accident was detained at the
spot for investigation, but without permission, it was removed
by the accused persons and accordingly, on such a report
received, Komna PS Case No.29/98 dated 15th May, 1998 was
registered under Section 379 read with 34 IPC On perusal of
the record, the Court finds that the informant examined as
P.W.1 categorically deposed that on 15th May, 1998, while he
was on duty at Tarbod outpost, was assigned responsibility to
guard the accident vehicles along with the constables, namely,
Jugal Kishore Dhangada Majhi (P.W.8) and Sufal Mohanand
(P.W.7). It is further deposed by him that soon after inspection
of the vehicles at around 2 P.M. by the M.V.I., Kalahandi,
necessary document was handed over by him to the O.I.C.
Komna PS. As further deposed, in the meanwhile, the accused
persons present the spot, took away the vehicle without their
permission, hence, the F.I.R. was lodged. The command
certificate of P.W.1 has been marked as Ext.3. The duty of
P.W. 1 is clearly revealed from Ext.3. The testimony of P.W.1
was corroborated by P.W.7, according to whom, he along with
others were guarding the accident vehicles and at that point of
time, the petitioner and accused forcibly removed the truck
despite their protest. On a consideration of the evidence of
P.Ws.1, 7 and 8, who were found to be on duty to guard the
accident vehicles at the spot, it is made to reveal that the truck
had met with an accident involving a motor cycle and was
illegally removed and it was without the consent of the police.
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The presence of the P.Ws. 7 and 8 and the duty at the spot is
also proved on record. The Court does not find any reason to
disbelieve such evidence of P.Ws.1, 7 and 8. Promptly after the
alleged incident and when the truck was removed by the
petitioner, the report was lodged by P.W.1. There is no
evidence on record to show that P.W.1 had any axe to grind
against the petitioner and therefore, it has to be concluded that
immediately after removal of the truck from the spot, the report
was lodged by him. Such evidence of P.W.1 received
corroboration from P.Ws.7 and 8. Even though the I.O. has not
been examined for the reasons best known to the prosecution,
the Court is of the view that the evidence of P.Ws.1, 7 and 8
support and corroborate each other. There is nothing on record
to doubt the claim of the prosecution regarding removal of the
vehicle from the spot. Even though the petitioner happens to be
the owner of the alleged vehicle, in view of the evidence on
record, it has to be held that such removal of it from the spot
without authority amounts to an act of theft. Furthermore, there
is evidence on record to show that the vehicle was seized by
the police. The seizure list has been proved through other
witnesses, namely, P.Ws.3 and 4. Considering the evidence in
its entirety, the conclusion of the Court is that the presence of
the petitioner at the spot is established and such illegal removal
by him is duly reported by P.W.1 and proved him and others.
As regards, the plea of the petitioner that there is discrepancy
in the date of lodging of F.I.R. and that the zimanama was
antedated and that makes the alleged incident to be false, the
Court finds from the record that such zimanama has been
executed a day after the incident. The alleged occurrence took
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place on 15th May, 1998, whereas, the zimanama was prepared
on 16th May, 1998. The claim of any such execution of
zimanama in favour of the petitioner or someone on his behalf
alleging it to be antedated does not receive confirmation from
the record. Neither the petitioner examined himself nor the
zimanama was marked as an exhibit. The Court further finds
that the vehicle was left in zima of someone else and not the
petitioner. When there is a report lodged for the alleged
incident as per Annexure-1 and thereafter, seizure list has been
prepared and on 16th May, 1998, the vehicle was left in the
zima of someone who has not even been examined from the
side of the defence, this Court does not find any reason to
consider any such plea of the petitioner.
7. Admittedly, the accused driver was acquitted. A copy of the
said judgment in G.R. Case No.103 of 1998 has been marked
as Ext. A from the side of the defence. A plea has been
advanced by Mr. Dhal, learned Senior Advocate for the
petitioner that the accused driver was exonerated with an
acquittal order for not being rash and negligent and that a part,
the vehicle was seized and left in zima when the report had not
been received at the PS, but as earlier discussed, such report
was lodged on 15th May, 1998 and thereafter, the zimanama
was executed and there is no discrepancy at all. In so far as the
accused driver is concerned, even though his rashness and
negligence could not be proved for offences under Sections
279 and 304(A) IPC after a trial, the order of acquittal in his
favour in G.R. Case No.103 of 1998 is not to render any
assistance to the petitioner, who is rather guilty of having
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removed the vehicle from the spot. Both the incidents are
distinct and separate and though related to the accident, but for
the acquittal of the driver therein, the Court is of the view that
the petitioner cannot plead exoneration.
8. An accident vehicle in the custody of the police, if removed
even by its owner without their consent, such an act would be a
theft and hence, punishable under law. It is to be held that theft
is an offence against possession and not ownership. Once the
police have taken the vehicle into their custody either by
seizure or impounding at the spot itself, it is in legal possession
of the police for investigation, though the owner still holds the
title. What is more important is the conduct and the overt act
committed with the requisite intention. A dishonest intention is
to be looked at in such an incident irrespective of ownership of
the vehicle. A Court should be concerned with animus furandi
of the accused at the time of removal of the vehicle from the
possession of the police. According to the Court, removing a
vehicle without permission despite knowing it to be in legal
custody demonstrates a dishonest intention to take the property
out of possession of the police resulting in a wrongful loss to
the State. In such a situation, the legal consequence would be a
criminal charge for an offence of theft punishable under
Section 379 IPC and even for obstructing a public servant in
discharging official duty. In other words, the owner may also
be charged with obstructing a public servant while on duty
besides a criminal charge of theft. A proper procedure would
have been for the petitioner to retrieve the vehicle from the
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police custody with an application moved before the court
concerned for receiving it in zima.
9. As it is made to understand from the evidence, the alleged
accident took place on 15th May, 1998 and from the spot, the
vehicle was removed, but thereafter, upon seizure, a zimanama
was executed on 16th May, 1998. Apart from a case registered
under Section 279 and 304(A) IPC, for such illegal act of
removal, upon receiving a report from a Constable on duty, a
case under Section 379 read with 34 IPC was registered. The
Court considering the evidence on record and in view of the
discussion as aforesaid reaches at an irresistible conclusion that
the learned courts below did not err or commit any illegality in
concluding that the petitioner to be responsible for the incident,
even if, he is the owner of the vehicle. The Court is not
inclined to distrust P.W.1, who lodged the report and other
witnesses, namely P.Ws.7 and 8 present at the spot. The
seizure of the vehicle is also proved by P.Ws.2 and 3. The duty
of the Constables at the spot is established. Even though
P.Ws.1 and other witnesses were cross-examined by the
defence, nothing adverse could be elicited from them. It can be
said that the defence completely failed to create any dent in the
evidence of the prosecution. No rebuttal evidence was led by
the petitioner except a copy of the judgment in G.R. Case
No.103 of 1998 at Annexure-A. It is restated that any such
acquittal order in respect of the driver of the vehicle either in
the case at hand or in G.R. Case No.103 of 1998 is not to
render any assistance to petitioner, who is guilty of an
independent act of theft for having removed the vehicle from
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the spot. So, in the ultimate view of the Court, the impugned
judgment of the learned court below confirming the order of
conviction does not suffer from any legal infirmity.
10. However, while maintaining the order of conviction, the
Court is equally of the considered view that the petitioner, at
this distant point of time, should not be directed to undergo the
sentence instead should be let off with admonition in terms of
Section 3 of the Probation of Offenders Act, 1958.
11. Accordingly, it is ordered.
12. With the above direction, the revision stands disposed of.
(R.K. Pattanaik)
Judge
Sumitra
Signature Not Verified
Digitally Signed
Signed by: SUMITRA NAYAK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 25-Feb-2026 12:53:14
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