The High Court · 2003
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.304 of 2003 In the matter of an Appeal under Section-374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 2nd January 2003 passed by the learned Adhoc Additional District & Sessions Judge, Fast Track Court No.II, Puri in Sessions Trial Case No.53/110 of2002. Ajaya Kumar Sahoo & Another …. Appellants ---- State of Orissa …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ========================================================= For Appellants -
Legal Reasoning
Mr. D.K. Mishra, Advocate. For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel. CORAM: MR. JUSTICE D. DASH DATE OF HEARING :02.05.2024: DATE OF JUDGMENT:20.05.2024 D.Dash, J. The Appellants, by filing this Appeal, have assailed the judgment of conviction and order of sentence dated 2nd January 2003 passed by the learned Adhoc Additional District & Sessions Judge, Fast Track Court No.II, Puri in Sessions Trial Case No.53/110 of 2002 arising out of G.R. Case No.1430 of 2000 corresponding to Puri Town P.S. Case No.215 of 2000 of the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Puri. CRA No.304 OF 2003 Page 1 of 5 The Appellants (accused persons) have been convicted for offence under section-365 of the Indian penal Code (for short, ‘the IPC’) and they have been sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2000/- each. 2. Learned Counsel for the Appellants submitted that the Trial is totally vitiated since the accused persons having faced trial being charged for commission of offence under section-366- A of the IPC, they have been held guilty and convicted for commission of offence under section-365 of the IPC which has caused total surprise to them and they have been highly prejudiced in their defence which has thus led to failure of justice. In support of the said submission, he invited the attention of the Court to the ingredients of both the sections and submitted that even though for the offence under section-365 of the IPC, the punishment is lesser, still both the offences being completely district and different when the one can for which convicted cannot be said to be cognate of the another, the course adopted by the learned Trial Court in ultimately convicting the accused persons for commission of offence under section-365 of the IPC without alternating the charge as provided under section-216 of the Cr.P.C. which is specifically meant to meet this type of contingency, the ultimate result returned by the Trial Court cannot be sustained. CRLA No.304 OF 2003 Page 2 of 5 3. Learned Counsel for the Respondent-State submitted that when the offence under section-365 of the IPC and that of section-366A of the IPC come under one chapter of the IPC and as punishment for the offence under section-365 of the IPC is lesser than that prescribed under the 366A of the IPC, the claim of prejudice is unsustainable and it cannot be said that there has been failure of justice when the trial Court has recorded the eviction for the offence under section-365 of the IPC. He further submitted that with the available evidence on record, the Trial Court when has found the prosecution to have established its case for commission of offence under section-365 of the IPC as against these accused persons, the judgment of conviction is not liable to be interfered with. 4. Keeping in view the submissions made; I have carefully read the judgment passed by the Trial Court and I have also extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 9. 5. Admittedly the accused persons stood charged for commission of offence under section-354 of the IPC and section- 366A of the IPC. The Trial Court has acquitted them of the charge under section-354 of the IPC and section-366A of the IPC and instead has held them guilty for commission of offence under section-365 of the IPC, for which no charge had been framed. CRLA No.304 OF 2003 Page 3 of 5 Coming to the ingredients of section-365 of the IPC, we find that the prosecution for establishment of the said offence is required to prove beyond reasonable doubt that the person was kidnapped by the accused persons or abducted by them and the accused thereby intended that the person so kidnapped and abducted should be kept in wrongful secret confinement. The prosecution in order to establish the charge under section-366A of the IPC is required to establish the followings beyond reasonable doubt: - (1) accused induced a girl; (2) girl was under 18 years of age; (3) girl was induced to go from any place or to any act; and (4) accused deed as above with intent that such girl may be, forced or seduced to illicit intercourse with another person. With the above, even though I find that the sentence prescribed of the offence under section-365 of the IPC is lesser than what has been prescribed for section-366A of the IPC, I find that said two offences are quite distinct and different and the offence for which conviction has been recorded cannot be said to be the cognate offence for which the accused faced the trial for being charged. Therefore, the prejudice in the present case is writ large and it has to be said that the accused persons have been CRLA No.304 OF 2003 Page 4 of 5 surprised at the result which has come at the end being held guilty of the offence for which they had never been charged or made aware of at any time during the trial. Therefore, the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. 6. Having said so, now question arises as to whether this Court would now remand the Trail Court for retrial. The alleged offence is said to have been committed on 18.11.2000 and in the meantime, more than 23 years have passed. The accused persons then being aged about 25 and 23 years are now nearing 50. At this distance of time in my considered view an order for retrial would be against the interest of justice and is not so required for the ends of justice. 7. In that view of the matter, this Appeal is allowed. The judgment of conviction and order of sentence dated 2nd January 2003 passed by the learned Adhoc Additional District & Sessions Judge, Fast Track Court No.II, Puri in Sessions Trial Case No.53/110 of 2002 are hereby set aside. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 23-May-2024 13:32:53 CRLA No.304 OF 2003 Page 5 of 5