The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.48 of 2001 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 28.02.2001 passed by the learned Additional Chief Judicial Magistrate-cum-Assistant Sessions Judge, Bhubaneswar in S.T Case No.21/109 of 1997. Niranjan Moharana …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. G. N. Mishra, P. K. Sahu, A. K. Tripathy, K.S. Swain Advocate For Respondent - Mr. P. K. Mohanty, Additional Standing Counsel
Legal Reasoning
CORAM MR. JUSTICE D.DASH Date of Hearing : 08.05.2024 : Date of Judgment : 20.05.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 28.02.2001 passed by the learned Additional Chief Judicial Magistrate-cum-Assistant Sessions Judge, Bhubaneswar in S.T CRA No.48 of 2001 Page 1 of 8 Case No.21/109 of 1997, arising out of G.R Case No.2224 of 1995 of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Bhubaneswar. The Appellant (accused) has been convicted for commission of offence under section 366(A) of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, the Appellant has been sentenced to undergo rigorous imprisonment for a period of (08) eight years. 2. Prosecution case is that on 11.07.1995 at about 10 a.m, the victim P.W.1 then aged about 15 years having left for her school did not return till 3 p.m. Thereafter search being made, she was found to have been kept confined by the accused and it was said that said confinement was for engaging her in indecent activities. The father of the victim (P.W.2) having lodged the FIR with the Inspector-in-Charge (IIC) of Capital Police Station, Bhubaneswar, the same being treated as FIR, case was registered and investigation commenced. On completion of investigation, Final Form was submitted placing the accused to face the trial for commission of offence under section 366 of the IPC. Accordingly, charge being framed, the accused was tried thereunder. CRA No.48 of 2001 Page 2 of 8 By the impugned judgment, the accused has further being convicted for committing the offence under section 366(A) of the IPC. According to the Trial Court, the evidence of the victim (P.W.1) coupled with other evidence including that of the father of the victim (P.W.2) establish the said charge against the accused beyond reasonable doubt. 3. Learned counsel for the Appellant (accused) submitted that the accused being charged for commission of the offence under section 366 of the IPC, the Trial Court has erred in law by convicting him for commission of the offence under section 366(A) of the IPC which according to her is completely distinct and separate an offence from the offence for which the accused stood charged. She, therefore submitted that the judgment of conviction on these ground alone cannot be sustained. She next on merit submitted that even accepting the evidence of P.W.1 as laid and further viewing the surrounding circumstances which emanate from the other evidence more importantly the evidence of P.W.2 and 3, who are the parents of P.W.1, it has to be held that the prosecution has failed to establish even the charge under section 366 of the IPC and also has failed to establish a case under section 366(A) of the IPC. She, therefore, CRA No.48 of 2001 Page 3 of 8 submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 4. Learned Additional Standing Counsel for the Respondent- State submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court in holding him liable for commission of offence under section 366(A) of the IPC. He submitted that when it has been proved by the prosecution that the victim was below 18 years of age and when she states to have been abducted by the accused so as to be compelled to marry, the conviction of the accused for the offence under section 366(A) of the IPC is not liable to be interfered with. He further submitted that the offence under section 366 of the IPC and one under section 366(A) of the IPC since prescribe same punishment and those are cognate offences which begins with the inducement from the side of the offender notwithstanding the end goal which although differ both the two offences, the conviction of the accused for the offence under section 364-A of the IPC cannot be held vulnerable as the accused stood charged under section 366 of the IPC as here the accused cannot be said to have been prejudiced or faced total surprise in the trial. 5. Keeping in view the submissions made, I have carefully read the impugned judgment of conviction and have also CRA No.48 of 2001 Page 4 of 8 extensively travelled through the depositions of the witnesses (P.W.1 to P.W.10) as also have perused the documentary evidence, Ext.1 to Ext.11. 6. Before going to address the technical submission, it is felt apposite to first deal with the submission on merit. The star witness for the prosecution here is the victim (P.W.1). Evidence on record reveal that the victim knew the accused very well; not only that but the victim (P.W.1) also knew about the family life of the accused as the victim was taking tuition under the accused which of course was not continuing when the incident took place. It has been stated by P.W.1 that two days before 11.07.1995, the accused had written a letter to her stating therein that as per their previous talk, he would marry victim and had requested her not to disclose the same before others. She further states that in that very letter, the accused had written that if the father of the accused would object, then he would tell him that he wanted to go for marriage on his own will. It is further stated that when around 10.30 am P.W.1 went to the school, the accused was near the school and seeing P.W.1, the accused called a rickshaw and thereafter both went in the said rickshaw. From that place they went to Sampur Chingudi Factory near Khandagiri and there victim (P.W.1) was left by the accused by giving an application to CRA No.48 of 2001 Page 5 of 8 the Manager of the said factory and assuring the victim (P.W.1) not to be worried for her stay there for four to five days till he arranged a house on rent where they would thereafter live. She has next stated that on 12.07.1995 evening, accused came to the factory and handed her one mosquito net, dress, etc and he then told that if the parents of the victim would take the help of law, then she (victim-P.W.1) must say to have come on her own will. This part of the evidence of P.W.1 when read do not reveal that the P.W.1 was compelled to accompany the accused by force or by deceitful means and induced by the accused to go from near the school to that factory. The evidence of P.W.1 does not reveal any forcible compulsion or inducement by deceitful means from the side of the accused with the objective of going from that place to elsewhere. It is not stated by P.W.1 that she was led by the accused to the factory. So, one of the most foundational ingredients for establishment of the offence under section 366(A) of the IPC lacks in the present case. The other important ingredient being that it must be with the intent that the victim may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person; turning attention to the evidence of P.W.1, it is found that although she has narrated about some past incident in the house of the accused where she stated to have been done with some illicit acts by the CRA No.48 of 2001 Page 6 of 8 accused, nothing further is stated. She has stated nothing about any such objectionable act or any such role played by the accused on that day when they went to the factory from near the school. The letter as has been deposed by P.W.1 had not been kept by P.W.1. Rather it reveals from the evidence of P.W.1 that she had torn that letter as also few more received on earlier occasions. The reason given for such action of destroying the letters is NIL. Interesting to note is that the victim in her statement recorded under section 164 of the Cr.P.C. had not even disclosed that the accused previously had attempted to have illicit act with her in her house. She admits to have not disclosed that the accused had given any false impression of marrying her. P.W.2, the father of the victim (P.W.1) states that one Babula Pradhan had informed him to have seen the accused at about 7 pm in his room in attempting to have illicit acts with P.W.1. But what was that illicit act is not indicated and that is not so stated by P.W.1. The victim-P.W.1 has not provided any explanation as to what prevented her from omitting such important facts during her examination before the learned Magistrate under section 164 of the Cr.P.C. When above is the evidence of victim (P.W.1) and the parents (P.W.2 & P.W.2), the prosecution with the aid of the same in my considered view cannot be said to have successfully CRA No.48 of 2001 Page 7 of 8 sailed the boat so as to reach the shore in fastening the guilt upon the accused for the offence under section 366(A) of the IPC . In that view of the matter, the technical contention raised by the learned counsel for the Appellant is no more required to be addressed as it would be simply of academic importance serving no purpose for the case. 7. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 28.02.2001 passed by the learned Additional Chief Judicial Magistrate-cum-Assistant Sessions Judge, Bhubaneswar in S.T Case No.21/109 of 1997 are hereby set aside. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 21-May-2024 18:27:08 CRA No.48 of 2001 (D. Dash), Judge. Page 8 of 8