State of Orissa 1. Lachman @ Sri Laxman Das 2. Bana @ Sri Banamali v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.61 of 2008 State of Orissa 1. Lachman @ Sri Laxman Das 2. Bana @ Sri Banamali Khandual …. Vs. ….. Petitioner Mr. S.S. Mohapatra, ASC Opposite Parties None CORAM: JUSTICE SAVITRI RATHO Order No. 13. 1.
Decision
ORDER 03.04.2024 (Through hybrid mode) Pursuant to order dated 29.02.2024 and 18.03.2024, Mr. S.S. Mohapatra, learned Additional Standing Counsel files the instructions dated 21.03.2024 received from the IIC, Pattamundai Police Station where it has been stated that on enquiry he has found that opposite party no.1-Lachman @ Sri Laxman Das is staying in his village and opposite party no.2-Bana @ Sri Banamali Khandual has died on 11.03.2022. He has annexed the copy of the death certificate of oppsoite party no.2 along with the instructions. The instructions along with the memo are taken on record. 2. This CRLLP has been filed praying for grant of leave to file the appeal against the judgment dated 19.01.2008 passed in S.T. Case No. 56/623 of 2002 arising out of G.R. Case No. 709/99 in the court of the Page 1 of 6 learned J.M.F.C., Pattamundai acquitting the opposite parties from the offence under Section 366, 376, 109 of the IPC. 3. The prosecution case in brief is that in the night of 13.06.1999, P.W.4-Rabindra Das the informant lodged F.I.R. stating that opposite party no.1- Lachman @ Sri Laxman Das has kidnapped his minor daughter aged about 13 years by inducing her to marry and that opposite party no.1 is a married person and has a daughter. Opposite party no.2- Bana @ Sri Banamali Khandual abetted the offence of kidnapping as he is the main accused to kidnap his daughter. After completion of investigation, chargesheet was submitted against the opposite parties under Sections 363, 366, 376 read with Section 34 of the IPC. Charge was framed against the opposite party no.1- Lachman @ Sri Laxman Das under Sections 366 and 376 of the IPC and again the opposite party no.2- Bana @ Sri Banamali Khandual under Sections 366, 109 of the IPC. 4. The plea of the accused was one of complete denial and false implication due to previous enmity. 5. The learned trial court formulated the following points for determination. “ (a) Whether on 13.06.1999 at 8 P.M. in the night at village Page 2 of 6 Talapada, the accused Lachman Das kidnapped the victim from the lawful custody of the informant and induced her to marry ? (b) Whether on the subsequent date of kidnapping the accused committed rape on the victim ? (c) Whether on 13.06.1999 night at 8 P.M. the accused Banamali Khandual abetted the offence of kidnapping by helping the main accused Lachman Das to kidnap the daughter of the informant ? 6. In order to establish the charges, the prosecution examined 12 witnesses. P.Ws.1, 2 and 6 are independent witnesses to the occurrence. P.W.4 is the informant. The victim has been examined as P.W.12. P.W.8 is the doctor and P.W.5 is the brother of the informant. P.W.7 is witness to the seizure. P.W.8 is driver of the tracker. P.W.9 is the mother of the victim. P.W. 10 is the I.O. P.W.11 is the brother of the victim. P.Ws. 1 , 2, 6, 8 and 9 did not support the prosecution case and were declared hostile. P.W.9, mother of the victim has also not supported the prosecution case stating that the case has been settled between them. P.Ws.4 and 5 have both stated that the victim was aged about 18-19 years at the time of occurrence. Page 3 of 6 7. Mr. S.S. Mohapatra, learned Additional Standing Counsel submits that the judgment is perverse and liable for interference in as much as (i) the victim was a minor on the date of occurrence (ii) in her statement, she has stated that opposite party no.1 has had sexual intercourse with her forcibly against her wishes. (iii) He further submits that even if the evidence of the victim is not corroborated by other evidence, her sole testimony is sufficient to convict the accused. (iv) Although P.W.3 the doctor basing on the growth of the molar teeth of the victim, has opined that she was below 18 years on the date of occurrence and that her hymen was ruptured and she was used to sexual intercourse, but his evidence has been brushed aside illegally. 8. I have perused the impugned judgment. I find that the learned trial court has given cogent reasons for discarding the evidence of P.W.3, the doctor as regards the age of the victim. The court below has also found that most of the witnesses including P.W.4 father of the victim and informant himself his son P.W.11 and his wife P.W.9 have not implicated the accused and P.W.4 and P.W.11 have stated that the age of the victim was above 18 years on the date of occurrence. He also found that P.W.11 has stated that the victim is now married and the accused persons are not involved in the case. The court has Page 4 of 6 ultimately concluded in paragraph 14 that although the victim has stated in her evidence that while she was in her aunt’s house, the accused called her and forcibly raped her against her will and thereafter he has taken her to village Chhatia and village Rajnagar and kept her there for four days and has also committed rape on her during this time but she has not disclosed about the occurrence to anybody. From the evidence of P.W.10, the I.O., it is evident that the victim had also not stated before him that the accused Lachman had committed rape on her. She has stated that she has disclosed the incident to her aunt who is the wife of P.W.5, but this aunt has not been examined in the case. Referring to the injury report and the statement of the victim as regards injury sustained by her although she has stated that she has sustained 4-5 injuries on her chest and cheeks and the doctor stitched her private part but the doctor who examined the victim as per the report vide Ext.1 does not corroborate the evidence adduced by the victim. The Court has also observed that P.W.12 in her further cross- examination has stated that the accused has not committed rape on her. The learned court below holding that there was no direct evidence to hold that the opposite party no.2 had abetted the offence of kidnapping, has ultimately held that the accused persons were not Page 5 of 6 guilty for commission of offences under Sections 366/376/109 of the IPC and acquitted them. 9. On perusal of the impugned order and the reasoning given by the learned trial court, I do not find any perversity in the same so as to grant leave to the petitioner to prefer leave against the order of acquittal. 10. The CRLLP is accordingly dismissed. 11. Urgent certified copy of this order be granted on proper application. ………………………... (SAVITRI RATHO) JUDGE puspa Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 09-Apr-2024 19:24:45 Page 6 of 6