The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.192 of 2008 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 4th April, 2008 passed by the learned Ad hoc Additional Sessions Judge (FTC), Jagatsinghpur in S.T. Case No.18 of 2006 (28/06). Saroj Das ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.A. Ch. Mohanty & B. Pradhan (Advocates) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 21.06.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 4th April, 2008 passed by the learned Ad hoc Additional Sessions Judge (FTC), Jagatsinghpur in S.T. Case No.18 of 2006 (28/06) arising out of G.R. Case No.177 of 2003 corresponding to Kujang P.S. Case CRLA No.192 of 2008 Page 1 of 6 No.63 of 2003 pending on the Court of the Learned Judicial Magistrate First Class (P), Kujang. By the impugned judgment of conviction and order of sentence, the Appellant (accused) having been convicted for commission of the offence under sections 366/376 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo rigorous imprisonment for five (5) years and pay fine of Rs.3,000/- (Rupees Three Thousand) in default to undergo simple imprisonment for three (3) months for commission of offence under section 366 of the IPC; and rigorous imprisonment for seven (7) years and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo simple imprisonment for one (1) year with the stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- On 21.04.2003 around 9.30 p.m., this accused, namely, Saroj Das kidnapped the daughter of the informant, who was then aged about fifteen years. She was taken in a Trekker with the help of accused Amar Palei and Purna Chandra Das (since acquitted) so as to be induced to marry this accused. Basing on the report of the father of the victim, the criminal case being registered and the investigation commenced. On completion of the investigation, this accused and two others, CRLA No.192 of 2008 Page 2 of 6 namely, Amar and Purna, who have been acquitted, were placed to face the Trial for commission of the offence under section 376/366/109/34 of the I.P.C. 3. During Trial, the prosecution, in total, has examined fifteen (15) witnesses. Out of whom, the important are the victim (P.W.7) and her father (P.W.3). The prosecution, besides leading the above evidence, has proved the several documents, which have been admitted in evidence and marked Exts.1 to 15. Out of the same, the FIR is Ext.1/4 and the report of the Chemical Examiner (Ext.14). 4. The Trial Court, upon examination of the evidence let in by the prosecution, has held that the prosecution has established its case under section 376/366 of the IPC against this accused beyond reasonable doubt. Accordingly, he has been convicted and sentenced as afore-stated. 5. Learned counsel for the Appellant (accused) submitted that the conviction of the accused is based on no evidence. Inviting the attention of this Court to the deposition of the victim (P.W.7), he submitted that when P.W.7 has stated nothing and has resiled from her previous version, the Trial Court ought not to have relied upon her version before the police and the Magistrate recorded under section 161 & 164 of the Code of Criminal CRLA No.192 of 2008 Page 3 of 6 Procedure, 1973 (for short, ‘the Code’) respectively as the substantive evidence in fastening the guilt upon the accused that it is he, who had kidnapped the victim and committed rape upon her. He further submitted that on the above sole ground, the finding of guilt against the accused as has been rendered by the Trial Court is liable to be set aside. 6. Learned Additional Standing Counsel for the Respondent- State, while supporting the finding of guilt against the accused as has been recorded by the Trial Court, submitted that the Trial Court, after proper analysis of the evidence on record, has rightly arrived at the finding of guilt of the accused. 7. Keeping in view the submissions made; I have carefully read the impugned judgment of conviction and have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.15). The documents admitted in evidence from the side of the prosecution have also been gone through. 8. In order to address the rival submission as regards the sustainability of finding of the accused, it would be profitable to straightway proceed to look into the evidence of the victim (P.W.7) and that reads as under:- “The informant is my father. I know the accused standing in the dock. The occurrence took place on CRLA No.192 of 2008 Page 4 of 6 21.04.2003 at about 10 P.M. I along with Sanghamitra Dalei were sleeping with Anu Dalai and at the relevant time, I came out with Sanghamitra for urination. At that time, a trekker was parking near our house and while I was urinating someone put a towel covering my face and kidnapped me in that trekker.” The prosecution, being permitted by the Trial Court, cross- examined the victim under section 154 of the Evidence Act and is found to have simply drawn the attention to the witness to her previous statements, which has BEEN denied. As per the settled position of law for the said reason, the witness can only be said to be an unreliable witness and not to be a truthful one but the previous statements recorded under section 161 & 164 of the Code cannot be taken as the substantive evidence in the Trial. Therefore, the finding of guilt against the accused, as has been returned by the Trial Court basing upon the evidence of the victim (P.W.7), cannot be sustained. 9. In view of all the aforesaid discussion of the evidence of the victim (P.W.7) even without going to touch upon the evidence of other witnesses, the conviction of the accused cannot be sustained. 10. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 4th April, 2008 passed by the learned Ad hoc Additional Sessions Judge (FTC), CRLA No.192 of 2008 Page 5 of 6 Jagatsinghpur in S.T. Case No.18 of 2006 (28/06), are hereby set aside. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRLA No.192 of 2008 Page 6 of 6