Criminal Appeal No. 56 of 1997 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.399 of 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Sesadev Behera ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. B.K. Mishra, Advocate For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 22.04.2024 :: Date of Judgment: 20.06.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Sections 401 and 397 of Cr.P.C. is directed against the judgment and order dated 08.11.2007 passed by the learned Sessions Judge, Phulbani in Criminal Appeal No.56 of 1997, whereby the order of conviction and sentence passed by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge,
Legal Reasoning
Phulbani in S.T. No.60/33 of 1997 was confirmed. 2. The petitioner was subjected to prosecution in Phulbani Sadar P.S. Case No.68 of 1996 registered under Sections 363/366 of the I.P.C. 3. The prosecution case in brief is that on 11.11.1996 at about 11.00 A.M., while the victim-minor girl and another minor girl were collecting earth in a field at the out-skirt of their village, the petitioner came there. Asking the victim to go away with him, he forcibly took away the victim. The victim’s father was informed about this incident by his younger brother. After hearing the information from his brother, the informant, his brother and villagers searched for the victim but failed in their attempt. On the basis of such allegation, F.I.R. was lodged at Phulbani Sadar Police Station on 12.11.1996, which was registered as Phulbani Sadar P.S. Case No.68 of 1996. During investigation, the I.O. examined the witnesses, visited the spot, rescued the victim from the house of Chandramani Behera (accused No.2), i.e. father of the petitioner. Then it came to light that after kidnapping the victim-minor girl, she was raped by the petitioner. After completion of investigation, the police submitted charge-sheet against the petitioner as well as his father (accused no.2) under Sections 363/366/376/368 of I.P.C. The learned trial Court framed Page 2 of 12 charges against petitioner under Sections 366/376 of IPC while his father (accused No.2) was charged under Section 368 of IPC. The petitioner and his father (accused No.2) were put to trial. 4. To bring home the charges, the prosecution had examined as many as 11 witnesses and exhibited 14 documents. The plea of defence was that of complete denial and had taken further plea that the victim was aged about more than 18 years on the date of occurrence and with her consent the petitioner had taken her. In proof of their defence, one witness was examined. 5. The learned trial Court analyzed the entire evidence on record and found the petitioner not guilty of the offence under Section 376 of I.P.C. and accused No.2 not guilty for offence under Section 368 of I.P.C. Both were acquitted from the said charges. However, the learned trial Court found the petitioner guilty of the offence under Section 366 of I.P.C and sentenced him to undergo R.I. for four years and to pay a fine of Rs.500/-, in default of payment of fine to undergo further Rigorous Imprisonment for one month. Page 3 of 12 6. The judgment of conviction and order of sentence dated 04.10.1997 passed by the learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Phulbani in S.T. No.60/33 of 1997 were called in question by filing Criminal Appeal No.56 of 1997 before the Court of learned Sessions Judge, Phulbani, by the petitioner. The learned Appellate Court vide its judgment and order dated 08.11.2007 dismissed the appeal inter alia stating as under- <11. The victim has stated in clear terms that she spent one night with the Appellant inside a forest where she was raped for three times. Of course, the learned lower court has recorded an order of acquittal so far the offence U/s.376 of the I.P.C. is concerned. The offence of rape may not be found to have been established even though there was sexual intercourse. There is no doubt that the victim was taken to the forest in order that she might be seduced to illicit intercourse. Therefore, the offence U/s.366 I.P.C. is found to have been is punishable with established. The offence imprisonment up to 10 years with fine. Learned Lower Court has sentenced the Appellant to undergo R.I. for 4 years and fine of Rs.500/-. The punishment does not appear to be excessive. 12. In the result, the order of conviction and sentence is found not liable for interference and the appeal is dismissed.= Page 4 of 12 7. The petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8.
Legal Reasoning
Heard Mr. B.K. Mishra, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment of conviction and order sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. The learned trial Court relying upon the testimonies of the witnesses, particularly taking into consideration the evidence of both the doctors, i.e., P.W.1 & P.W.2, came to the conclusion that there was no injury found on the body and private parts of the victim and as no spermatozoa either alive or dead was found after examination of the vaginal fluid, the doctors had opined that there was no sexual assault committed on the victim. One of the injuries which was found on the body of the victim was the injury prior to the alleged incident. Therefore, a clear opinion was given by the doctors that there was no forceful sexual intercourse committed by the accused. On the strength of the said evidence, the accused/petitioner was acquitted by the learned Court below Page 5 of 12 for the offence under Section 376 I.P.C. I find no reasons to discard that finding. 11. The learned trial Court went on to convict the petitioner for offence under Section 366 of I.P.C. Although the trial Court had arrived at the conclusion by analyzing the evidence of all the witnesses to the effect that the accused had taken the victim to the forest on the date of incident and stayed with her overnight and thereafter brought her to his house. In the entire sequence of the event, the victim had willfully accompanied the accused and participated in the alleged occurrence, however, came to the conclusion that since the victim girl was less than 18 years, her consent was of no consequence. Therefore, the trial Court convicted the petitioner for the offence under Section 366 of I.P.C. The relevant part of the judgment is worth mentioned, which reads as under:- <10. Now let us scrutinize the evidence on record to see how far the prosecution has proved its case against the accused Sesadev u/s. 366 I.P.C. P.W.9 has stated that the victim left with the accused Sesadev on the date of occurrence. P.W.10 the victim has stated that the accused Sesadev took her by dragging holding her hands to a nearby bush and she stayed throughout the night in the company of the accused in the forest. Prior to the Page 6 of 12 occurrence the accused was in visiting term to the house of the victim and so also the victim to the house of the accused Sesadev. They were in talking terms. They also used to go to the river bed some times to move. The above facts indicates that the victim left with the accused Sesadev according to her sweet will and the accused Sesadev never took her by dragging holding her hands. Had the fact that the accused Sesadev forcibly took the victim by dragging holding her hands towards the forest without the consent of the victim, the victim must have raised hulla and resisted to go. But there is no such evidence. P.W.10 has not stated that against her will she went with the accused. When the victim did not raise any hulla while going with the accused reasonable belief is that the victim was a consenting party that means the victim went with the accused Sesadev according to her desire and it is not the accused who took her forcibly. I have held that on the date of occurrence the victim was under 18 years of age. So on the date of occurrence the victim had no right to give consent. When the accused took the victim with him without the consent of the father of the victim he commits the offence of kidnapping and when the accused detained her in the forest throughout the night for the purpose of illicit intercourse he has committed the offence punishable u/s. 366 I.P.C. Taking all into consideration, I am of the clear opinion that on the date of occurrence the accused Sesadev Behera committed an offence punishable u/s. 366 I.P.C. by taking the victim without the consent of her lawful guardian, her father.= the above facts Page 7 of 12 12. The learned Appellate Court has agreed with the findings of the learned Court below insofar as the alleged offence under Section 376 I.P.C. is concerned and affirmed the acquittal order vis-à-vis the said offence. However, by uphelding the conviction and sentence against the petitioner insofar as the offence under Section 366 I.P.C. is concerned has held that the victim’s age was around 12 years at the time of incident. Therefore, her consent to accompany the petitioner would not inure to the benefit of defence. The Appellate Court has relied upon the ossification test report to arrive at a conclusion that the victim was about 12 years at the time of incident. The ossification test report was exhibited as Ext.4. Since the defence had not controverted the said report in vigor to create doubt, the impeccable evidence brought on record by the prosecution regarding the age of the victim has been believed by the Appellate Court. The School certificate placed on record lent further support to the prosecution case that the victim was a minor. Therefore, the Appellate Court has maintained the conviction of the petitioner of the offence under Section 366 of I.P.C. Page 8 of 12 13. Mr. Mishra, learned counsel for the petitioner has inter alia contended that Section 366 of I.P.C. provides punishment for offence of kidnapping or abducting a woman with the intention that she may be compelled to marry against her will or she may be forced or seduced to illicit intercourse. In the instant case there is absolutely no evidence that the petitioner had any intention to marry against her will or she may be forced or seduced to illicit intercourse. The prosecution has failed to prove its case for offence under Section 376 of I.P.C., for which the petitioner has been acquitted. Therefore, there is absolutely no case against the petitioner that he had any intention or used any force to keep illicit intercourse to the victim. It is also mentioned here that the term kidnapping has been defined in Section 359 read with Section 361 of I.P.C. So far as instant case is concerned, the prosecution has not advanced a case of kidnapping. On the other hand, the prosecution attempted to prove the case under Section 366 of I.P.C. against the petitioner for abducting by use of deceitful means to induce her to go with the petitioner who had adopted that deceitful inducement with the intention to force her for illicit intercourse. Therefore, in no stretch of Page 9 of 12 imagination it can be said that the petitioner had ever committed the offence under Section 366 of I.P.C., for which the impugned judgments are illegal and both are liable to be set aside. I don’t agree with the contention raised by the petitioner that on the face of acquittal of the petitioner for offence under Section 376 I.P.C., the conviction for offence under Section 366 I.P.C. is not sustainable. Because the submission is directly in contradiction with the provision contained under Section 366 of I.P.C. On glaring facts emanating from the record that the father of the petitioner who was one of the co-accused in the present case was also tried for the offence under Section 368 of I.P.C. Since the prosecution had miserably failed to bring on record any evidence against the father of the petitioner to the effect that he had wrongly concealed the victim in his house, the father of the accused was also acquitted. The State did not appeal against the acquittal. 14. From the aforementioned, it is concurrently and conclusively held by both the Courts below that the victim girl had indeed gone with the petitioner by her own volition, there was no sexual assault caused by the Page 10 of 12 petitioner. However, because of the fact that the victim was less than 12 years of age, the petitioner was convicted for the offence under Section 366 I.P.C., while acquitting him for the offence under Section 376 I.P.C. 15. The evidence insofar as the age of the victim is concerned are un- impeachable, therefore, cannot be discarded. The fact that the victim had gone with the petitioner to the jungle in the evening on 12.11.1996 and was subsequently rescued from the house of the petitioner on 13.11.1996 has not been controverted rather proved beyond reasonable doubt. Therefore, there is no room for interference with the judgment of the Courts below insofar as the conviction of the petitioner for the offence under Section 366 of I.P.C. is concerned. 16. Coming to the quantum of the sentence, I am inclined to interfere with the impugned order because of the fact that the incident alleged to have happened in the year 1996 and the trial Court has convicted the petitioner way back on 04.10.1997 and the Appellate Court upheld the conviction and sentence by judgment dated 08.11.2007. During the trial and after the conviction, the petitioner had already undergone about 11 months of substantive sentence. Therefore, I am inclined to modify the Page 11 of 12 sentence to that of one already undergone by the petitioner. Accordingly, the judgments of the Courts below convicting the petitioner for the offence under Section 366 of I.P.C. is upheld and the sentence is modified to that of the period already undergone by the petitioner.
Decision
17. With this observation, the CRLREV is disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 20th June, 2024/ Swarnaprava Dash, Senior Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 28-Jun-2024 14:54:53 Page 12 of 12