The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.227 of 2024 (In the matter of application under Section 374(2) of the Criminal Procedure Code, 1973.). Sanjib Xess @ Bhakulu @ Sanjeb Xess …. Appellant -versus- State of Odisha …. Respondent For Appellant : Mr. D.K. Mohapatra, Advocate For Respondent : Mr. T.K. Praharaj, SC CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :05.08.2024 DATE OF JUDGMENT:13.08.2024 G. Satapathy, J. 1. The convict named above by way of this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short “the Code”) has not only questioned the legality but also has prayed to set aside the judgment dated 18.07.2023 passed by the learned Additional District and Sessions Judge-cum-Presiding CRLA No.227 of 2024 Page 1 of 12 Officer, Special Court under POCSO Act, Sundargarh in Special G.R. Case No.91 of 2018. By the aforesaid judgment, the learned
Legal Reasoning
trial Court while acquitting the appellant for commission of offences punishable under Sections 341/366/ 376(2)(n)/376(3)/506 of IPC and Section 6 of POCSO Act, has convicted him for offence punishable under Section 363 of IPC and sentenced to the maximum substantive imprisonment provided for the offence by directing him to undergo Rigorous Imprisonment (RI) for seven years and to pay a fine of Rs.5,000/- in default whereof, to undergo further imprisonment for a period of three months. Further, the learned trial Court has also directed DLSA, Sundargarh to pay compensation of Rs.2,00,000/- to the victim. 2. Facts in precise are that on 24.08.2018 at about 9.30 AM, the victim aged about 14 years while going to her school on a bicycle, the convict obstructed and forcibly took her in a hired Bolero vehicle bearing Regd. No.OD-16-C-2349 by threatening and handing CRLA No.227 of 2024 Page 2 of 12 over her bicycle to one Raj Kumar Nayak to Kirai Chowk, where both the victim and convict alighted from the Bolero vehicle, after the convict paid Rs.200/- towards the hire charge of the Bolero and, thereafter, the convict took the victim to village Baghenipani in a Bus and kept her in the house of his relatives. During their stay, the convict forcibly kept physical relationship with the victim for three times. However, on 17.08.2018 finding an opportunity in absence of the convict, the victim informed her parents through the mobile phone of the convict. Accordingly, the victim was rescued by her family members and produced before the Police. 3. In the meantime, prior to the rescue of the victim on the same day of kidnapping i.e. 24.08.2018, the father of the victim lodged an FIR against the convict before the IIC, Town Police Station, Sundargarh who registered PS Case No.166 of 2018 and the investigation ensued which resulted in submission of charge-sheet against the convict resulting in trial in the CRLA No.227 of 2024 Page 3 of 12 present case after the convict pleaded not guilty to the charge for commission of offences under Sections 341/ 366/ 376(2)(n)/ 376(3)/ 506 of IPC and Section 6 of POCSO Act. 4. In support of its case, the prosecution examined altogether 25 witnesses vide PWs.1 to 25 and proved 26 documents under Exts.1 to 26 as against no evidence whatsoever by the defence. The plea of the convict in the course of trial was denial simplicitor and false implication. Out of the prosecution witnesses, PWs.1 and 2 are the two doctors, whereas PW25 is the IO and apart from the victim and her parents, some other witnesses have been examined in this case. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court by relying upon the evidence of PWs.1, 10, 21 (the driver of the Bolero) and 25, has convicted the appellant only for offence U/S. 363 of IPC and sentenced him to the punishment indicated supra. CRLA No.227 of 2024 Page 4 of 12 6. In assailing the impugned judgment of
Legal Reasoning
conviction and order of sentence, Mr. D.K. Mohapatra, learned counsel appearing for appellant has submitted that the learned trial Court has erred to convict the appellant by mis-appreciating the evidence of PW21 and erroneously holding the victim to be aged about less than 18 years, which was not at all established by the prosecution and even if the prosecution story is believed to be true, the victim having voluntarily joined with the convict, no conviction under Section 363 of IPC would lie against the convict. It is also submitted by learned counsel for the appellant that the victim having travelled with the convict not only in the Bolero to Kirai Chowk, but also in a Bus therefrom to village Baghenipani and she having not raised any protest, it can be safely concluded that the victim had voluntarily accompanied the convict and, thereby, no offence under Section 363 of IPC is proved against the convict. Mr. Mohapatra has alternatively submitted that in the admitted facts and circumstance of the case, since the CRLA No.227 of 2024 Page 5 of 12 victim having gone with the accused without any protest by travelling in a Bolero as well as in a public transport, the convict should not have been awarded with maximum substantive imprisonment as provided for Section 363 of IPC, and by taking this aspect and the custody period of the appellant for near about five years and eight months, his sentence may kindly be reduced/modified to the period already undergone. 7. On the contrary, Mr. T.K. Praharaj, learned Standing Counsel, however, has strongly submitted that the evidence on record clearly establishes that the convict had kidnapped the victim and even when consent of the victim is also taken into consideration, since the victim being aged about less than 18 years and she having been taken away by the convict by enticing, the conviction of the appellant U/S. 363 of IPC can be said to have been well founded on proper appreciation of evidence. It is also submitted by Mr. Praharaj that not only the victim was kidnapped by the convict, but also the convict had kept physical CRLA No.227 of 2024 Page 6 of 12 relationship with the victim and since the convict has kept physical relationship with the victim aged about 14 years, his conviction would have been justified for rape and penetrative sexual assault of the victim, but ignoring such facts, the learned trial Court has given benefit of doubt to the convict for offence under Section 376 of IPC/6 of POCSO Act, which was of course not challenged by the State and in the circumstance, the conviction of the appellant does not warrant any interference by this Court. 8. After having bestowed an anxious and careful consideration to the rival submissions upon perusal of record, the moot question falls for consideration in this appeal is to see the sustainability of the conviction of the appellant for offence under Section 363 of IPC and the sentence awarded to the convict thereon. In a case of kidnapping, the evidence of victim in essence is very much important and the victim in this case having been examined, has testified in the Court that one day in the year 2018 at about CRLA No.227 of 2024 Page 7 of 12 9.30 AM, when she was going to school, the convict obstructed her and forcibly took her in a Bolero vehicle to Kirai Chowk, where they alighted from the Bolero and, thereafter, they boarded in a Bus and went to Baghenipani. One of the ingredients for offence under Section 363 of IPC is the age of the victim to be less than 18 years in case of a female and in this case, admittedly the victim was aged about less than 18 years, since as on the date of her evidence, she described her age to be 16 years, but the defence has not disputed her age by eliciting any material in cross examination. It is no doubt argued by the learned counsel for the appellant that the victim had voluntarily joined with the convict, but the evidence of the victim suggests that she sat in the Bolero being scared by the threatening of the convict. On the other hand, the driver of the Bolero being examined as PW21 had stated in his evidence that the convict contacted him for hire of the vehicle and he, accordingly, took the vehicle to the pond of Brahmanpada, where the girl was CRLA No.227 of 2024 Page 8 of 12 there with a cycle and the said girl boarded the vehicle and they went to Kirai Chowk. Even the testimony of PW21 discloses that the victim boarded the Bolero out of her own sweet will, but it has to be further seen that whether the victim was enticed by the convict since she was of tender age then. 9. On coming to the evidence of next important witness, the testimony of mother of the victim transpires that the victim was rescued by her and her husband from village Baghenipani which remains unchallenged by the defence in cross examination. On the other hand, the cross examination of the victim also discloses that as the convict threatened the victim, she had not intimated anything to the inmates of the house where she stayed. Further, the evidence of the Doctor-PW1 transpires that the age of the victim girl was found to be 13 to 17 years on radiological examination and such evidence of doctor remains unchallenged by the defence. It, therefore, appears from the evidence on record that the victim CRLA No.227 of 2024 Page 9 of 12 was less than 18 years and she was threatened and taken away by the convict to village Baghenipani and, therefore, the offence under Section 363 of IPC is clearly made out against the convict. Consequently, no ground is found out to conclude that the convict is not guilty of the offence under Section 363 of IPC. 10. Adverting to the next question as to whether the maximum substantive imprisonment as awarded to the convict is commensurate to the crime committed by him, it appears that the convict is still in custody from the date of his arrest on 19.11.2018 and in the meanwhile, he has already undergone imprisonment for a period of more than five years and eight months. Further, the evidence on record, however, discloses that the victim was taken by the convict in a Bolero Jeep and then, in a Bus and he remained with the victim for three days in a house in village Baghenipani and it, thus, suggests that the victim might have been enticed as she had not protested either in the Bus as well as in the house CRLA No.227 of 2024 Page 10 of 12 where she was kept. In these circumstances, the gravity of the accusation, however, calls for some leniency while awarding punishment to the convict. On consideration of sum totality of the attending and mitigating circumstances vis-(cid:224)-vis aggravating circumstance and the appellant being a person of lower strata of society, some leniency in sentence to the convict would be appropriate. The maximum sentence that has been provided in Section 363 of IPC is for imprisonment of either description for a term which may extend to seven years and fine. In the aforesaid circumstance of the case, it would be appropriate and just, if the sentence of the convict is modified/reduced to the extent of the period of imprisonment already undergone by him in the jail. 11. In the result, the appeal stands dismissed on contest, but the sentence of the appellant is modified to the extent indicated in the preceding paragraph. The appellant be set at liberty forthwith, if CRLA No.227 of 2024 Page 11 of 12 his detention is otherwise not required in any other case. 12. Since the appellant is in jail, warrant of release on appeal in Form No. (M)77 of GR & CO, Criminal be immediately sent to the Officer-in-charge of the concerned jail through e-mail or any other faster communication mode in view of the Rule 154 of the GR & CO, Criminal Vol-I. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 13th day of August, 2024/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 14-Aug-2024 18:46:59 CRLA No.227 of 2024 Page 12 of 12