Criminal Appeal No. 22 of 2002 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 405 of 2006 An application under Section 401 read with Section 397 of the Code of Criminal Procedure challenging the judgment and order dated 12.11.2002 of learned Chief Judicial Magistrate -cum- Asst. Sessions Judge, Nabarangpur in Sessions Case No.29 of 1999 and the judgment and order dated 11.05.2006 of learned Addl. Sessions Judge, Nabarangpur in Criminal Appeal No. 22 of 2002. -------------- Trinath Bisoi ..… Petitioner -versus- State of Orissa ..… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. S.C. Mishra, Advocate on behalf of Mr. Anirudha Das, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. S.S. Mohapatra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 23.04.2024 Savitri Ratho, J This application under Section 401 read with Section 397 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 11.05.2006 passed in Criminal Appeal No. 22 of 2002 by the learned Addl. Sessions Judge, Nabarangpur
Legal Reasoning
confirming the conviction of the petitioner under Section 366 of CRLREV No. 405 of 2006 Page 1 of 11 IPC and sentence to undergo R.I. for three years and to pay a fine of Rs.2000/-, in default to undergo R.I. for three months imposed by judgment dated 12.11.2002 passed by the learned Chief Judicial Magistrate -cum- Asst. Sessions Judge, Nabarangpur in Sessions Case No.29 of 1999. 2. The prosecution case in brief is that on 29.08.1995 at about 10.00 a.m. the daughter (since deceased) of Gopi Bisoi- informant (P.W.1)- the victim, had gone to the river side with a crow bar and tin diba to bring earth. When she did not return to the house, P.W.1 along with his co-villagers searched for her till the evening, but they could not locate her. On 30.08.1995 at about 3.00 p.m., P.W.1 came to know that on the previous day at 10.00 a.m. while his daughter was digging earth on the bank of the reiver, the petitioner and the co-accused Subash Bisoi forcibly dragged her to a nearby sugarcane field and then to his house at village Niladriguda. On 31.08.1995 in the evening P.W.1 along with others went to the house of the petitioner and he admitted to have brought the victim to his house to marry her and he asked P.W.1 and others to come to his house after three days to settle the marriage. On 02.09.1995, P.W.1 sent one Mukunda Bhatra (not examined) to the house of the petitioner to inform him that they would come to his house on 08.09.1995 to settle the marriage. But CRLREV No. 405 of 2006 Page 2 of 11 the petitioner and his parents denied that they had brought the daughter of P.W.1 to their house so Mukunda Bhatra returned to the house of P.W.1 and reported the development to him. On 03.09.1995 some persons who were cutting paddy near the mango tope, found foul smell emanating from the said tope. When P.W.1 learnt of this, he along with others went to the mango tope and found the victim lying dead there. On the same day at about 5.00 p.m. P.W.1 reported the matter in writing at Tumarala Police Out- post and UD Case No. 1 of 1995 was registered by the A.S.I. attached to the Out-post and the dead body was recovered from the mango tope on 03.09.1995 Subsequently, the OIC, Papadahandi Police Station took charge of the enquiry of the U.D. case from the ASI on 16.10.1995. During investigation On 13.11.1995 as the OIC found materials against the petitioner and the co-accused under Sections 366, 306, 34 of IPC, P.S. Case No. 76 of 1995 was registered on 14.11.1995 at about 10.00 a.m. against the petitioner and the co-accused. During investigation of the case it was found that as the parents of the petitioner did not agree to the proposal of marriage, the petitioner had left the victim in her village on 03.08.1995 in the evening. Feeling insulted the victim committed suicide on the same night. After completion of investigation, the police submitted charge sheet against the present petitioner and one CRLREV No. 405 of 2006 Page 3 of 11 Subash Bisoi under Sections 366, 306, 34 of IPC. The case was split up against Subash Bisoi as he had absconded and only the petitioner was stood trial in the Court of the learned C.J.M. -cum- A.S.J., Nabarangpur under Sections 366, 306, 34 of IPC. 3. 4. The plea of the petitioner is one of complete denial. The learned trial Court fixed the following points for determination: (i) Whether the accused kidnapped the woman or she was abducted by him? (ii) Whether the accused then intended or knew that it was likely, (a) that such woman might or would be compelled to marry a person against her will, or (b) that she might or would be forced or seduced to illicit intercourse? (iii) Whether the girl committed suicide; and (iv) Whether the accused abetted the commission thereof? 5. The prosecution examined fifteen witnesses to prove its case. P.W.1 Gopi Bisoi is the father of the victim and the informant, P.W.2 Kamal Lochan Bisoi and P.W.5 Banamali Bisoi are the brothers of P.W.1, P.W.3 Asadhu Majhi, P.W.4 Kamalu Bhatra, P.W.6 Damburudhar Bisoi, P.W.7 Manguru Bhatra, CRLREV No. 405 of 2006 Page 4 of 11 P.W.11 Manbodh Bisoi and P.W.12 Sansai Bhatra are the eye witnesses to the alleged occurrence, P.W.8 Susil Kumar Mandal and P.W.13 Dasamu Garada are the police constables who removed the dead body of the victim to the hospital for post- mortem examination, P.W.9 Laxmikanta Mishra scribed the report of P.W.1, P.W.10 Debaki Bisoi is the wife of P.W.1, P.W.14 Hadibandhu Behera is the I.O. of the case and P.W.15 Dr. Bhagirathi Mohanty is the Medical Officer who conducted post mortem examination. One witness Laxmi Bhatra has been examined as D.W.1 on behalf of the defence. 6. The prosecution exhibited five documents. Ext.1 is the FIR, Ext.2 is the inquest report, Exts.3 and 5 are the seizure lists and Ext.4 is the zimanama. 7. The learned Trial Court on consideration of the entire evidence on record found that the victim has been abducted by the petitioner for the purpose of compelling her to marry him against her will and convicted him under Section 366 of IPC and sentenced him to undergo R.I. for three years and to pay a fine of Rs.2000/-, in default to undergo R.I. for three months more. He found that the prosecution could not prove that the victim had committed suicide CRLREV No. 405 of 2006 Page 5 of 11 being abetted by the petitioner for which, the petitioner was acquitted from the charge under Section 306 of IPC. 8. The learned Appellate Court held that the finding of the learned Trial Court that the victim was aged more than 18 years, but was abducted against her will was correct for which the conclusion regarding abduction did not call for any interference. The Court also held that there was lack of satisfactory evidence to ascertain the cause of death, but this did not have any impact on the conviction of the petitioner under Section 366 of IPC, which had been proved by the prosecution. The learned Court also found that the learned trial Curt had assigned good reasons for awarding sentence on the petitioner which was not excessively high. The appeal was dismissed holding that there was nothing on record to interfere with the order of conviction and sentence. 9.
Legal Reasoning
Mr. S.C. Mishra, learned counsel for the petitioner submits that the conviction of the petitioner is based solely on the evidence of P.W.4 who has stated to have seen the petitioner abducting the victim, but his evidence is not believable as he has not disclosed this to anybody on the date of occurrence or soon after the occurrence He also submits that the petitioner is a poor famer and who has to maintain his family. He further submits that the petitioner was arrested on 17.11.1995 and had remained for CRLREV No. 405 of 2006 Page 6 of 11 some days in custody. 30 years have elapsed since the date of occurrence, so, even if his conviction is confirmed, sentence may be modified to the period undergone or fine may be imposed instead of sending him back to custody. 10. Mr. S.S. Mohapatra, learned Addl. Standing Counsel for the State supports the conviction of the petitioner and submits that apart from P.W.4, P.W.11 has also stated that the petitioner had dragged the victim from the river bank and the evidence of P.Ws.1, 2, 5, 7 and 10 lend corroboration to his evidence. From the evidence of P.Ws. 1, 2 and 5 it is apparent that after learning from P.W.4 and P.W.11, P.Ws. 1, 2, 5 and 10 had gone to the house of the petitioner and saw the victim in his house. 11. I have perused the impugned judgments and evidence of the witnesses. 12. P.W.1 who is the father of the victim and the P.W.10 is her mother. P.W.1 has stated that after he came to learn that his daughter had been dragged by the accused persons from the bank of the river to the sugarcane field and thereafter to the house, he along with others had gone to village Niladriguda to the house of the petitioner and saw the victim there. He has admitted that he did not enter the house of the petitioner, but there is nothing to disbelieve his evidence nor hold that he could not see the victim CRLREV No. 405 of 2006 Page 7 of 11 without entering the house of the petitioner. P.W.6 is the front door neighbour of the petitioner who has stated that on the relevant day at about 9.00 to 10.00 a.m., he has seen the victim digging earth on the bank of the river and the petitioner and the co-accused forcibly dragging her to a nearby sugarcane field and again from the said field at about 1.00 p.m. to his house. His evidence has been closely scrutinized by the learned trial Court as he admitted that he is not on visiting term to the house of the petitioner, but no suggestion has been given to P.W.6 by the defence that he does not have any land situated near the river and he has denied the suggestion that he has not seen the accused persons dragging the victim to the nearby sugarcane field and from the sugarcane field to the house of the petitioner for which his evidence has been rightly believed. P.Ws.1, 2, 5 and 7 have stated that on the next day when the deceased was missing, they were told by P.Ws. 4 and 11 that they had seen the petitioner and co-accused Subash dragging the victim from the bank of the river towards village Niladriguda. P.Ws. 4 and 11 told them that the accused persons were forcibly dragging the victim. P.W.4 stated that he saw the occurrence when he was catching fish in the river and P.W.11 stated that he saw the occurrence while working in his land at about 10.00 a.m. which is situated near the river. P.W.4 has admitted on his cross-examination that he has not CRLREV No. 405 of 2006 Page 8 of 11 disclosed this fact before anybody prior to his examination before the Court, but P.W.11 has categorically stated that on Wednesday while P.W.1 and others were in search of the victim, he told them that on the previous day at 10.00 a.m. the accused persons forcibly dragged the victim from the bank of the river. He also stated that he protested while the accused persons were dragging the victim and denied the suggestion that he was stating falsehood or that he did not disclose before P.W.1 and others about seeing the accused persons dragging the victim from the bank of the river. I therefore find no reason to disbelieve these witnesses. 13. Section 366 of IPC is extracted below: “366. Kidnapping, abducting or inducing woman to compel her marriage, etc. -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;[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 CRLREV No. 405 of 2006 Page 9 of 11 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 also be punishable as aforesaid.]” 14. The learned trial Court has calculated that the victim must have been born in the year 1976 and as the occurrence took place on 29.08.1995 for which the victim was aged more than 18 years on the date of occurrence for which the accused persons have abducted her and not kidnapped her. The learned trial Court found that the victim has been abducted so that she would be compelled to marry the petitioner against her will for which the offence under Section 366 of IPC is made out against him, but as there was no evidence on record that the victim was forced or seduced to illicit intercourse, only the offence under Section 366 of IPC is made out as the accused had the intention to compel the victim to marry against her will. The learned trial Court has observed that P.W.14 the Medical Officer could not form any opinion regarding cause of death of the deceased as the dead body was in a decomposed condition. That apart the original post mortem report was not been submitted to the Court with the charge sheet and there was absence of documentary evidence as well as original evidence as regards CRLREV No. 405 of 2006 Page 10 of 11 the death of the victim and there was no evidence on record to show that the petitioner had abetted the victim to commit suicide. 15. On a close conspectus of the evidence on record more specifically the depositions of P.Ws. 1, 4, 6 and 11, I am satisfied that the petitioner has been rightly convicted for commission of offence under Section 366 of IPC. 16. Considering the manner in which the offence has been committed, I am not inclined to modify the sentence to the period already undergone to fine, but since 30 years have elapsed in the meanwhile, in my opinion that the ends of justice would be met if the substantive sentence is reduced from three years to two years along with payment of fine of Rs.2000/-, in default to undergo R.I. for three months. 17. With the modification in sentence, the CRLREV is dismissed. ……………………… (Savitri Ratho, J.) Orissa High Court, Cuttack. The 23rd April, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jun-2024 12:26:00 CRLREV No. 405 of 2006 Page 11 of 11