The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 28 of 1995 (An appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order passed by learned Sessions Judge, Phulbani in S.T. Case No.11 of 1994) --------------- AFR Tutu Digal ...… Appellant -Versus- State of Orissa ...... Respondent Advocate(s) appeared in this case: _______________________________________________________ For Appellant : Sri D. Mishra, Advocate. For Respondent :
Legal Reasoning
Sri S.N. Das, Addl. Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 21st July, 2023 SASHIKANTA MISHRA, J. The appellant was convicted for the offence punishable under Section 363 of IPC vide Judgment dated 23.11.1994 passed by learned Sessions Judge, Phulbani and sentenced to undergo rigorous imprisonment for one Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 Page 1 of 9 year and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for further term of three months. 2. Prosecution case, briefly stated, is that on 04.05.1991 at about 7 PM, the victim (name withheld) had been to the shop of one Khalia Biswal of Sautikia to purchase ‘Gudakhu’ wearing a gold Sorisia Mali (necklace). While returning she was stopped by accused Tutu Digal (present appellant) and Kalidas Digal near a jackfruit tree. Both were armed with knives and caught hold of the victim and snatched away the gold Mali from her neck. The victim said that she would disclose the matter before her parents but the accused persons decided to kidnap her at the point of knife. Being fearful of her life she followed them. They reached Dandapadar village in the morning from where accused Tutu and the victim got into a bus and went to village Dadangia. The accused confined the victim in the house of one Nira Digal and raped her against her will by threatening her of death. She could not go out in the daytime as the family members of Nira always guarded her. The victim’s father after a long search came to know from reliable source that accused Tutu had kidnapped his Page 2 of 9 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 daughter. Accordingly on 12.06.1991 the victim’s father and one Lalu Mallik rescued her from the house of Nira. The victim narrated everything before her father. The matter was attempted to be reported at the police station but the same was not accepted. As such the victim directly filed a complaint in the Court of learned S.D.J.M., Baliguda being ICC No.554 of 1991 alleging commission of the offences under Sections 363/365/376/392/109 IPC. The learned S.D.J.M. recorded the initial statement of the complainant and conducted enquiry under Section 202 of Cr.P.C. in course of which some witnesses were examined. Basing on such enquiry, learned SDJM took cognizance of the offences and committed the case for trial to the Court of Session. 3. The accused persons took the plea of denial. Besides, accused Tutu took the specific plea that he was engaged as a field servant by the father of the victim but was not paid his wages for which he had threatened to convene a village meeting and to file a case against him. Therefore, the victim’s father had foisted the case against him out of grudge. The plea of accused Kalidas was that he Page 3 of 9 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 had spoken in favour of accused Tutu in the village meeting for which the victim’s father also bore a grudge against him. 4. To prove its case, prosecution examined three witnesses of whom, P.W.-1 is the victim, P.W.-2 is the father of the victim and P.W.-3 is the person who had accompanied the victim’s father to the house of Nira to rescue her. Besides, the prosecution proved the medical report of the victim as Exhibit-1. Defence examined one witness from its side. 5. After analyzing the evidence on record, the trial court found that the offence under Section 376 IPC was not at all made out against the accused persons. Similarly the offence under section 366 and Section 394 was also not made out. However, it was held that the offence under Section 363 IPC is established against accused Tutu. On such findings, he was convicted and sentenced as aforesaid while the other accused persons were acquitted of the charges. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 Page 4 of 9 6. Heard Sri D. Mishra, learned counsel appearing for the appellant and Sri S N Das, learned Additional Standing Counsel for the State. 7. Sri Mishra assails the impugned judgment of conviction by arguing that the trial court committed manifest error in relying upon the evidence to hold the accused guilty even though he had disbelieved the same in respect of the principal offences namely, Section 376 and 366 of IPC. It is further argued that the versions of the victim and her father are entirely unbelievable as they suffer from serious discrepancies. Since the age of the victim could not be properly proved, it was entirely wrong on the part of the trial Court to have held the appellant guilty of kidnapping her from her lawful guardian. 8. Sri S.N. Das, on the other hand supports the order of conviction by arguing that notwithstanding the rejection of the evidence relating to the other offences, there is no bar for the Court to utilize the same in respect of the offence under Section 363 of IPC. If the version of the victim is believed, it would clearly prove the commission of the offence for which the accused was held guilty. Sri Das Page 5 of 9 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 therefore, contends that the impugned judgment does not warrant any interference whatsoever. 9. As already stated, accused Tutu was charged for the offence under Sections 376/394/366/34 IPC. According to the statement of the victim P.W.-1, accused Tutu and Kalidas caught hold of her near the jackfruit tree and snatched away her Mali. They then took her to village Dandapadar. What was the mode of transport from the spot of kidnapping to Dandapadar has not been clarified by her. It is further stated by her that Tutu showed a knife to her and threatened her not to raise hulla. From there they went to village Dadangia. Again, what was the mode of transport has not been stated at all though the complaint petition mentions that they had travelled by bus. The victim has gone on to describe in vivid detail as to how she was kept confined in the house of accused Nira and raped by Tutu multiple times for about seven days. Learned Sessions Judge has disbelieved this part of the evidence as being highly improbable. Since the State has not challenged this finding in this respect, this Court would not like to comment anything thereon. It is significant to note Page 6 of 9 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 that the trial court also did not believe the evidence relating to accused Kalidas as having facilitated the kidnapping. As it appears, the trial Court appears to have placed much importance on the age of the victim. Having done so, the age of the victim was determined as 17 years. On such finding the trial Court examined the evidence relating to the alleged kidnapping of the victim. It was held that there is no evidence to show that accused Tutu kidnapped the victim with an intention to marry her. At the same time, it was held that the accused persons, after snatching the gold Mali from the victim kidnapped her. Thus on such findings, the offence under Section 366 IPC was held to be not proved but surprisingly, on the same evidence it was held that the offence under section 363 was proved. In the considered view of this Court, this finding is inherently contradictory inasmuch as if it is held that the accused had no intention of marrying the victim and there was evidence to show that he and the other accused had snatched away the gold Mali from her neck, then what was the necessity of kidnapping the victim at all. In other words, if the main purpose of snatching away the gold Mali Page 7 of 9 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 had been accomplished by the accused persons why should he take the trouble of kidnapping the victim on the point of knife, take her to village Dandapadar and thence to village Dadangia and confine her for seven days. It does not at all stand to reason that the accused persons would be persuaded to do so under the circumstances described by the victim. Moreover, there is absolutely no evidence to suggest that the victim had at any time during the seven days, ever raised any protest or attempted to free herself from the clutches of the accused persons. And then, it also does not stand to reason that the family members of accused Nira would allow such an offence to occur in their house without doing anything about it. The version of the victim and of P.W.-2 therefore, comes out as inherently improbable and not worthy of belief. The finding of the trial court being based thereon is therefore, automatically rendered vulnerable. 10. From a conspectus of the analysis of the evidence and the discussion made hereinbefore, this Court is left with no doubt that the evidence on record does not in the least prove the offence under Section 363 of IPC so as Page 8 of 9 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 to hold accused Tutu guilty thereof. In such view of the matter, the impugned judgment of conviction and sentence cannot be sustained in the eye of law. 11. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The accused being on bail, be discharged from his bail bonds. ………..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 21st July, 2023/ A.K. Rana Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court Date: 21-Jul-2023 19:09:54 Page 9 of 9