The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 233 of 1993 (An appeal under Section 374(3) read with Section 382 of the Code of Criminal Procedure, 1973. --------------- AFR Ajit Kumar Rath ...… Appellant -Versus- State of Orissa ...... Respondent Advocate(s) appeared in this case: _______________________________________________________ For Appellant : Mr. D.P. Dhal, Sr. Advocate with M/s. A.K. Acharya and D.K. Das, Adocates For Respondent : Sri S.K. Mishra, Addl. Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 2nd September, 2023 SASHIKANTA MISHRA, J. The appellant questions the legality and correctness of the judgment of conviction and sentence passed by learned Asst Sessions Judge-cum-Sub Judge, Balasore on 20.7.1993 in S.T. No.1/3 of 1993 as per which he was convicted of the offence under Sections 363/366 Page 1 of 15 IPC and was sentenced to undergo rigorous imprisonment for four years on each count with both sentences to run consecutively. 2. Prosecution case, in brief is as follows:
Legal Reasoning
One Ramakrishna Satpathy lodged FIR before the Balasore Town Police Station on 10.4.1992 alleging therein that on that day at about 11 AM his minor daughter ‘X’ (name withheld) aged about 15 years had been kidnapped by the accused with the intention of marrying her. This led to registration of Balasore Town P.S. Case No. 82(5) of 1992 under Section 366 of IPC followed by investigation. Upon completion of investigation charge- sheet was submitted under Section 366 of IPC. Charge was however framed under Sections 363 and 366 of IPC. 3. The plea of the accused was of complete denial and false implication on the ground that he had refused the proposal of the victim’s father to marry his daughter. 4. To prove its case prosecution examined nine witnesses of whom P.W.-1 is the informant and father of the victim, P.W.-2 is the paternal uncle of the victim and P.W.-5 is the victim girl herself. P.Ws.-3 and 4 are doctors Page 2 of 15 who had examined the victim, P.W.-6 is a seizure witness, P.W.-7 is the I.O., P.W.-8 is the Manager of the temple where the marriage between the accused and the victim had allegedly been solemnized and P.W.-9 is the Headmaster of the school in which the victim was studying. Prosecution also proved 11 documents from its side. Defence did not produce any oral evidence but proved some documents from its side. 5. After appreciating the evidence on record and in particular the evidence of the doctors, P.Ws.-3 and 4 and the School Admission Register, proved as Exhibit-11 through P.W.-9, the trial Court held that the victim was aged about 15 years at the time of the occurrence. As regards the occurrence itself, the trial Court noted that both the informant as well as the victim had greatly improved upon their earlier versions given before the Investigating Officer and the Court. Despite holding so, it was of the view that the accused had enticed the victim girl to go with him from the custody of her parents with a view to marry her and also married on the same day. It was also held that consent of the victim was not material as she was Page 3 of 15 a minor. On such findings, the accused was convicted and sentenced as aforesaid. 6.
Legal Reasoning
Heard Mr. D.P. Dhal, learned Senior Counsel with Mr. A.K. Acharya, learned counsel appearing for the appellant and Mr. S.K. Mishra, learned Addl. Standing Counsel. 7. Assailing the findings of the trial court, Mr. Dhal would argue that the finding relating to age of the victim is erroneous in view of the fact that the evidence on record did not conclusively prove that the victim was 15 to 16 years of age. Mr. Dhal would further argue that when the entire version of the victim about the occurrence was proved to be an improvement from her earlier version before the I.O. as also before the Court, there was no legally admissible evidence on record for the trial Court to have held the prosecution case as proved. In this context, it is further argued that the earlier version of the victim was true and correct but what she stated before the Court was obviously because of pressure exerted by her family and therefore, such version could not have been relied upon. Page 4 of 15 8. Mr. Mishra on the other hand would support the findings of the trial Court by arguing that both the doctors examined by prosecution clearly and conclusively proved that the age of the victim was 15 to 16 years. Further, the School Admission Register also lends support to the prosecution case that the victim was aged 15 years at the relevant time. Thus, the defence plea that the victim had left home with the accused on her own volition is of no consequence as any consent given by a minor is no consent in the eye of law. As regards the so-called contradictions in the evidence of the informant and the victim, Mr. Mishra would argue that the same are not material and in any case do not demolish the prosecution case in view of the clear evidence that the accused and the victim had married in the temple. 9. In order to appreciate the rival contentions it would be apposite to independently scan the evidence on record to see if the same supports the charges framed against the accused. In this regard it is noteworthy that the evidence of the informant, P.W.-1 is greatly at variance from his own version given in the FIR. To elaborate, as Page 5 of 15 already stated, the informant lodged the FIR simply alleging that his daughter had been kidnapped by the accused with a view to marry her. He had not stated anything about such marriage having actually taken place in Khirachora Gopinath Temple. But in his testimony before the Court as P.W.-1 he stated that his younger brother came to him and reported that some major trouble had happened in their house for which his immediate presence was necessary, hearing which he went to his house by motorcycle. After reaching home his brother told him that he had received some information that the victim’s marriage had taken place in Remuna Temple, whereupon they both went to the temple and came to know from the Manager of the temple that on that day marriage had taken place between the accused and the victim and he also produced the duplicate marriage receipt. This is entirely contrary to what he had stated in the FIR and same was also confronted to him by the defence in cross-examination. The I.O., P.W.-7 also admitted that the informant had not only stated such things in the FIR but also had not done so before him during investigation. Page 6 of 15 10. P.W.-2 is the younger brother of the informant, who corroborated his version but then no reliance can be placed on his testimony since the testimony of P.W.-1 itself is doubtful for the reasons indicated in the preceding paragraph. No other witness or member of the family was examined by prosecution in this regard even though the victim is said to have gone with the accused from her house, which in the circumstances assumes great significance. 11. The victim was examined as P.W.-5. She stated in vivid details about the occurrence. According to her, on the date of occurrence at 11 AM while she was reading in her house, the accused came to her and told that her sister (cousin) Kalpana was calling her and accordingly she went with him to Kalpana’s house. When she reached there, Kalpana told her that her marriage would take place with the accused and at that time some friends of the accused were also present. Hearing this she got perplexed and believed that Kalpana was joking. But Kalpana and some friends of the accused confined her in a room and bolted the door from outside and threatened her with dire Page 7 of 15 consequences, if she did not agree to marry the accused. Kalpana also tried to persuade her to marry the accused whereupon she started weeping. Kalpana forced two Rasagollas in her mouth after consuming which she felt inconvenient and experienced reeling of head. Thereafter Kalpana, the accused and his friends carried her to Remuna Temple in a taxi where the accused threatened to kill her by pressing her neck if she shouted. She was then forced to sign on a receipt which was blank and the priest of the temple was asked to perform the marriage. The accused put a garland around her neck but she threw it away out of anger and thereafter Kalpana got another garland and asked her to put it around the neck of the accused and also forced her to do so. Thereafter, they all brought her back to Kalpana’s house again and confined her in a room and in the evening her father rescued her being assisted by police. 12. The entire version of the victim as stated above is found to be an improvement over what she had stated in her statement recorded under section 161 of Cr.P.C. by the I.O. and Section 164 of the I.P.C. by the learned Magistrate. Page 8 of 15 It was suggested to her during cross-examination that she had not stated so in her earlier statements, which she denied but then being confronted, the I.O. admitted that the victim had not stated so. It was also suggested to her that she had stated a different story in her statement recorded under Section 164 of Cr.P.C. by the Magistrate in that she had love intimacy with the accused for two years prior to the occurrence. In her earlier version she had stated that two months prior to the incident her parents came to know about her love affair with the accused and persuaded her to refrain from such activity and had also scolded and beaten her on many occasions and that and 09.04.1992, her father assaulted her and drove her out of the house due to which on the same evening she informed the accused of such fact. It was also suggested to her that she had stated before the Magistrate that the accused had not forcibly taken her to his house and that she went to his brother’s house voluntarily. Being confronted the I.O. admitted that the victim had not stated before her whatever she had stated about the occurrence in the Court but had given a different story altogether. Page 9 of 15 13. From the above narration it becomes evident that the entire evidence of the victim as regards the occurrence is an improvement from her earlier version. To amplify, in her earlier version she had referred to her love relationship with the accused for two years and of her family being against it. She had also referred to the attempts made by her family members to dissuade her from such relationship including scolding and beating her. In fact, she even went to the extent of stating that she had been driven out of her house on the day before the occurrence by her father, which she had conveyed to the accused. Significantly she had stated that the accused had not kidnapped her and that she had voluntarily left home with him. In the Court however she came up with a different story as has already been stated hereinbefore. 14. What would be the effect of such contradiction? It is the basic proposition of law that minor contradictions in the subsequent statement of a witness are immaterial but if the contradiction is in material particulars, the version of the witness becomes doubtful. Reference in this regard may be had to the case of State of H.P. v. Lekh Page 10 of 15 Raj, reported in (2000) 1 SCC 247. This is a case where the victim omitted to say in the court whatever she had stated before the I.O. earlier. Thus her entire version becomes inherently doubtful and hence, unreliable. 15. Reading of the impugned judgment shows that the Court below has taken note of the contradictions but brushed it aside by holding that the accused availed of the opportunity caused by the ill-treatment meted out to the victim by her father because of her love affair and persuaded her to leave the house and to come with him to marry him. This part of the finding is not there in the evidence at all, but somehow the trial Court has read the same into the evidence. Evidently the trial court referred to the version of the victim in the statement recorded under Section 164 of Cr.P.C. forgetting that the same is not substantive evidence. It need not be emphasized that whatever the witness says in Court is to be accepted. If the version in the Court is found to be consistent with her earlier version, it would be a corroborative piece of evidence but if it is contrary to the earlier version, both are to be discarded. By doing so, the trial court has accepted the Page 11 of 15 love relationship theory but at the same time held that the accused took advantage of the situation and persuaded the victim to leave home with him for the purpose of marriage which in any case had not been stated by the victim earlier. Thus, the Court appears to have taken a bit from the statement under section 164 of Cr.P.C. and another bit from the victim’s evidence in the court which is nothing but a major contradiction in terms. 16. In the earlier statements the victim had stated that she had left voluntary with the accused as her father had misbehaved with her. She had not stated that the accused enticed her to leave with him for marriage though she stated the contrary in the Court. It would be relevant to refer to the relevant statutory provisions at this stage. Section 363 of IPC runs as follows: “363. Punishment for kidnapping Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Section 366 of IPC runs as follows: “366. Kidnapping, abducting or inducing woman to compel her marriage, etc Page 12 of 15 Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her. will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 160[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.” 17. It is seen that to constitute both the offences the essential ingredient is enticing or taking away of the victim from the lawful guardianship. In the case of S. Varadarajan v. State of Madras, reported in (1965) 1 SCR 243: AIR 1965 SCC 942 the Apex court held as follows: “9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to Page 13 of 15 have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. if It would, however, be sufficient the 10. prosecution establishes that though immediately prior to the minor leaving the father’s protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian’s house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian’s house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 18. As already stated, there is nothing in the evidence to show that the accused had enticed the victim in any manner. Thus the finding of the trial court in this regard is entirely unsustainable. 19. Once the version of the victim is found to be completely unreliable and there being no other acceptable evidence to even remotely establish the guilt of the accused the prosecution case must fall to the ground. For the above Page 14 of 15 reason the impugned order of conviction cannot stand the scrutiny of law. 20. Another significant aspect is failure of the prosecution to implicate Kalpana, who is stated to have played a major role in facilitating the so-called kidnapping and marriage of the victim with the accused. She was not charge-sheeted nor examined as a witness by the prosecution. So, in the absence of such a material witness, the credibility of the victim’s testimony gets further eroded. 21.
Decision
For the foregoing reasons therefore, this Court is of the considered view that the order of conviction passed by the trial court cannot in any manner be sustained in the eye of law. Resultantly, the criminal appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The accused being on bail, be discharged of his bail bonds. ………..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 2nd September, 2023/ A.K. Rana Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Reason: Authentication Location: Orissa High Court, Cuttack Date: 04-Sep-2023 12:33:44 Page 15 of 15