Orissa High Court
Krushna Chandra Behera vs State Of Odisha (Vigilance) on 18 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.100 of 1992
(In the matter of an application under Section 318 of the Criminal
Procedure Code, 1973)
Krushna Chandra Behera ....... Appellant
-Versus-
State of Odisha (Vigilance) ....... Respondent
For the Appellant : Ms. Agnisikha Ray, Amicus Curiae
For the Respondent : Mr. M.S. Rizvi, ASC (Vigilance)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 10.07.2025 :: Date of Judgment: 18.07.2025
S.S. Mishra, J. The sole appellant in the present case has assailed the
judgment of conviction and order of sentence dated 22.02.1992 passed
by the learned Special Judge, (Vigilance), Sambalpur in T.R. Case No.22
of 1984, whereby the appellant although was acquitted from the charges
under Sections 468/477-A of I.P.C., however, the learned trial Court
found the accused guilty of the offences under Sections 409/471 of I.P.C.
and Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention
of Corruption Act, 1988 (for short P.C. Act). The appellant was
accordingly sentenced to undergo R.I. for six months and to pay a fine of
Rs.1,000/- for the offence under Section 5(2) of the P.C. Act and, in
default, to undergo R.I. for three months. The appellant was also
sentenced to undergo R.I. for six months and to pay a fine of Rs.500/-, in
default, to undergo R.I. for three months for the offence under Section
409 of I.P.C. In addition to that, the appellant was further sentenced to
undergo R.I. for one month and to pay fine of Rs.100/-, in default, to
undergo further R.I. for fifteen days for the offence under Section 471 of
I.P.C. and all the substantive sentences were directed to run
concurrently.
2. Aggrieved by the judgment of conviction and order of sentence
passed by the learned trial Court, the present Appeal has been preferred
by the appellant. The appeal is pending since 1992.
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3. At the time of occurrence on the basis of which the F.I.R. was
registered by the appellant, i.e., in the year 1992, was 63 years old.
Therefore, at present the appellant is more than 90 years of age. Various
directions were made by this Court to ascertain the wellbeing and
whereabouts of the appellant. However, the learned counsel for the State
by furnishing a report from the concerned authority has stated that the
whereabouts of the appellant could not be ascertained. When the matter
was heard, learned counsel for the appellant was also absent on various
occasions. Confronted with such situation, when this Court asked the
learned State Counsel to further ascertain the whereabouts and wellbeing
of the appellant vide orders dated 24.06.2024, 09.07.2024, 15.07.2024
and subsequent date of hearings, it is stated that the whereabouts of the
appellant could not be ascertained and the appeal is ready for hearing.
Hence, the appeal may be heard.
4. This Court appointed Ms. Agnisikha Ray, learned counsel to assist
the Court as Amicus Curiae. She has filed written note of submission as
well as assisted the Court by arguing the matter at length. This Court
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records appreciation for the effective assistance rendered by Ms.
Agnisikha Ray, learned Amicus Curiae.
5. Heard Ms. Agnisikha Ray, learned Amicus Curiae for the
appellant and Mr. M.S. Rizvi, learned Additional Standing Counsel for
the Vigilance Department.
6. The prosecution case, in nutshell, is that the accused-appellant
Krushna Chandra Behera was serving as V.L.W. (Village Level Worker)
in Gudari block from the year 1969 to 1974. During that period, it was
decided by the Government to encourage wheat cultivation in the block
area, hence, there was a proposal to supply wheat and fertilizer freely to
the cultivators. The appellant being the VLW had received 15 quintals of
wheat and fertilizer for distribution amongst the cultivators. It is alleged
that even though the appellant received the stock but he has not
distributed the same to the cultivators and prepared false record showing
as if he has distributed the wheat and fertilizer. It is also alleged that the
cultivators have been denied to have received the wheat and fertilizer on
enquiry. Therefore, the Vigilance Department carried out the
investigation and filed the charge-sheet for the offences under Sections
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5(2)/5(1)(c)(d) of the P.C. Act read with Section 409/468/471-A of I.P.C.
against the appellant. On denial of charges by the appellant, he was put
to trial after charges were framed.
7. The prosecution in order to bring home charges examined 41
witnesses and two witnesses were examined by the defence.
8. Ms. Ray, learned Amicus Curiae for the appellant submitted that
in the present case there is delay of seven years in lodging the F.I.R.
which has gone unexplained. The learned trial Court has conveniently
brushed aside that aspect of the matter. She further submitted that
P.W.35 was the Investigating Officer, who was not examined in the
present case which is fatal to the prosecution case. Ms. Ray, further
contended that P.W.41, the finger print expert, whose evidence was
heavily relied upon by the prosecution is shadowed contradicts,
therefore, that cannot be relied upon at all because in the cross-
examination he has stated that the disputed LTI and the specimen LTI
were not taken in his presence and he has acted only on the information
of the I.O. He has doubted as to whether the information supplied to him
by the I.O. is correct or not. In view of his categorical statement, the
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hand writing expert report vis-à-vis the evidence of P.W.41 created a
shadow of doubt.
9. Ms. Ray, learned Amicus Curiae further emphasized that the
villagers have been examined by the prosecution. All of them in unison
have stated that they have received the wheat and fertilizers, however,
not given their signature either in the register or any other paper. She has
taken me to the evidence of P.W.7 to P.W.9 and P.W.11 to P.W.34 to
substantiate that point. Ms. Ray, also submitted that many of the
villagers have stated that since the alleged supply of wheat and fertilizers
had taken place 15 to 16 years back, they do not remember the same.
10. To counter the submission made by Ms. Ray, learned Amicus
Curiae, Mr. Rizvi, learned Additional Standing Counsel for the
Vigilance Department has also taken me to various documents and the
evidence of the official witnesses. No doubt, the evidence of the official
witnesses is unimpeachable but their evidence needs to be weighed vis-
à-vis the evidence of the independent witnesses. Mr. Rizvi, has taken me
to the evidence of P.W.37, who was the Store Keeper-cum-Accounts
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Clerk in Gudari Block. The said witness in his testimony has stated as
under:-
“I was posted as Store Keeper-cum-Accounts Clerk
in Gudari Block under high yield programme of the
Agriculture Deptt. from 1969 to 1973. I had
received wheat and fertilizer stocks under T.D.A.
(Tribal Development Agency) scheme and I entered
the same in the stock register vide page No.100 in
Block Stock Book, Vol-I. This is the stock book
marked ext.9. Ext.9/1 is the relevant entry showing
receipt of the stock. Ext.9/2 is the relevant entry
showing release of 1500 kgs. of wheat seeds to
V.L.W. of M.X. Rai G.P. This is the signature of Sri
K.C. Behera, the V.L.W marked ext.9/3.”
To create a doubt to the evidence of P.W.37 as stated above, the
defence has extensively cross-examined him, however, the said witness
sustained the same and stick to his version as mentioned above. Mr.
Rizvi, learned Additional Standing Counsel for the Vigilance
Department submitted that the evidence of P.W.37 is enough to prove
the factum of entrustment. He has also taken me to different other
evidences to support the case of the prosecution regarding the
entrustment. In the light of the aforementioned evidence on record, the
learned trial Court appears to have appreciated the entire evidence. In so
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far as the offence under Section 409 of I.P.C. and offence under the P.C.
Act is concerned, the learned trial Court has discussed the matter in a
very detailed manner, which is reflecting from paragraph-4 to paragraph-
10 of the judgment. The learned trial Court has relied upon the testimony
of P.Ws.1, 2, 4, 5, 7, 9, 11, 34 and 37. By analyzing the entire evidence
in detail, the learned trial Court recorded the following conclusion:-
“10. The evidence is very clear that accused
received stock of wheat and fertilizer worth
Rs.5982.52 paise from the Block and it was his duty
to distribute the same to the 40 beneficiaries. The
beneficiaries have clearly denied that they received
stock of wheat or fertilizer from the accused. The
responsibility of the accused was to distribute the
stock and for this work the Field man cannot be
held responsible. The evidence shows that the stock
was not distributed by the accused. So the obvious
inference is that the accused misappropriated the
stock for himself. When some government property
was entrusted to the accused for the purpose
distribution of the same to the public and the
accused instead of distributing the stock
misappropriated it, there can be no doubt that his
intention was dishonest and that he misconducted
himself and abused his position as a public servant.
The prosecution has therefore successfully
established the charges under Sec. 409 I.P.C. and
U/s. 5(1)(c) and 5(1)(d) of the P.C. Act which are
punishable U/s. 5(2) of the said Act.”
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While dealing with the offence under Section 468 of I.P.C., the
learned trial Court has recorded the reasoning of acquittal in paragraph-
14 of the judgment, which reads thus:-
“14. Those persons whose disputed signatures
were examined by the Expert were not examined as
witnesses in this case nor is there any evidence
from any of these persons that their signatures was
forged. There is no specific evidence of any kind of
show that the accused himself forged the signatures
of the cultivators on the stock registers. When no
such specific evidence is available against the
accused he cannot be held liable U/s. 468 I.P.C.”
11. The findings recorded by the learned trial Court which are largely
reflecting in the paragraphs already reproduced above makes it clear that
if the evidences are taken conjunctively and in unison, the findings
recorded by the learned trial Court cannot be faulted with.
12. I have also taken into consideration the strenuous argument of Ms.
Ray, learned Amicus Curiae for the appellant. She is correct to point out
that the learned trial Court has not dealt with the delay of seven years in
registration of the F.I.R. However, perusal of the evidence of the
witnesses reveals that at no point in time, this issue was ever put to any
of the witnesses. This was not even argued before the learned trial Court.
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Besides that this being a case of allegation of non-distribution of wheat
and fertilizer leading to registration of a case under criminal breach of
trust and forgery etc., which came to light subsequently. Delay in
registration of F.I.R. is obvious and, therefore, not fatal to the
prosecution. On that basis, the appellant cannot derive any benefit. If the
entire conspectus of the matter is taken into consideration and the
evidence is evaluated, the findings recorded by the learned trial Court
cannot be found fault with. Therefore, this Court confirms the conviction
recorded by the learned trial Court for the offences as mentioned above.
13. Coming to the question of sentence, it is contended by Ms. Ray,
learned Amicus Curiae that the appellant is more than 90 years of age.
The offence is relating to year 1969-74. The F.I.R. was registered in the
year 1984. The appellant has suffered the ordeal of trial for about eight
years. Thereafter, the appeal is pending since 1992. Hence, at the belated
stage, sending the appellant to serve out the sentence would be harsh. It
is also pointed out that the appellant was arrested on 27.06.1986 pursuant
to the NBW issued by the learned Court below and he was released on
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bail 08.07.1986. Hence, the appellant has already undergone about 12
days.
14. Regard being had to the fact that the appellant is more than 90
years of age, I am inclined to accept the submission made by Ms. Ray,
learned Amicus Curiae and modify the sentence. However, the offence
under Section 5(2) of the Prevention of Corruption Act, 1988 being
prescribed a minimum sentence of one year. At the same time, the
proviso to the said provision empowers the sentencing Court to reduce
the sentence below one year subject to giving special reasons. For
convenience of ready reference, the provision reads as under:-
“5. Criminal misconduct in discharge of official duty- (1)
A public servant is said to commit the offence of criminal
misconduct:-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) xxx xxx xxx
(2) Any public servant, who commits criminal
misconduct shall be punishable with imprisonment for
a term which shall not be less than one year but which
may extend to seven years and shall also be liable to
fine:
Provided that the court may, for any special
reasons recorded in writing impose a sentence of
imprisonment of less than one year.”
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15. In view of the same, while confirming the conviction of the
appellant for the offence as mentioned above, the sentence awarded by
the learned trial Court is modified to that of the sentence the appellant
has already undergone. The sentence is being reduced to that of the
sentence the appellant has already undergone because of the special
reasons that the appellant at present is more than 90 years of age and the
alleged offence had taken place somewhere in the year 1969-1974.
Besides that the prosecution case has been prolonging since last more
than forty-one years.
16. With this observation, the CRA is partly allowed.
17. This Court acknowledges the effective and meaningful assistance
rendered by Ms. Agnisikha Ray, learned Amicus Curiae in this case.
Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/-
(Rupees seven thousand five hundred) as a token of appreciation.
(S.S. Mishra)
Judge
Signature Not Verified
The High Court of Orissa, Cuttack.
th
Dated the 18 of July 2025/ Swarna
Digitally Signed
Signed by: SWARNAPRAVA DASH
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 22-Jul-2025 17:09:18 Page 12 of 12