The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.857 of 2023 (An appeal U/S.374 of the Code of Criminal Procedure, 1973 against the judgment passed by Shri Bandana Kar, Additional Sessions Judge, Dharamgarh in Sessions Case No.26/18/43 of 2007-11 arising out of Junagarh PS Case No.125 of 2005, of the Court of SDJM, Dharamgarh). Bana @ Brahmand @ Brahmanand Bag State of Orissa -versus- … … Appellant Respondent For Appellant : Ms. C. Kashturi, Advocate For Respondent : Mr. S.K. Rout, Addl. PP CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:06.02.2025(ORAL) G. Satapathy, J. 1. This criminal appeal is directed against the impugned judgment dated 22.06.2023 passed by the learned Additional Sessions Judge, Dharamgarh in Sessions Case No.26/18/43 of 2007-11 convicting the appellant for commission of offences punishable U/Ss.328/366/376 of IPC and sentencing him to undergo Rigorous Imprisonment (RI) for ten years with CRLA No.857 of 2023 Page 1 of 11 payment of fine of Rs.20,000/-, in default whereof, to undergo RI for further one year for offence U/S.376(1) of IPC; to undergo RI for seven years with payment of fine of Rs.20,000/-, in default whereof, to undergo RI for further one year for offence U/S.366 of IPC; and to undergo RI for seven years with payment of fine of Rs.20,000/-, in default whereof to undergo RI for further one year for offence U/S.328 of IPC with stipulation of running of sentence concurrently. 2. The short prosecution case is that on 30.09.2005 at 8.00 PM the daughter of the informant (hereinafter referred to as “the victim”) went missing from his house, but the informant came to know subsequently that the convict along with two others had kidnapped the victim and had kept her in village Mukundapur. On this incident, the informant lodged an
Legal Reasoning
FIR on 02.10.2005 before the OIC, Junagarh PS, which came to be registered as Junagarh PS Case No.125 of 2005 for commission of offences punishable U/Ss.363/34 of IPC. Accordingly, the matter was investigated into and ultimately the convict and two CRLA No.857 of 2023 Page 2 of 11 others were being found to have kept confined the victim in the village Mukundapur after committing rape upon her by administering some stupefying substance and lifting away to a jungle, the IO submitted charge- sheet against them for commission of offences punishable U/Ss.328/376(g)/364-A/34 of IPC. Accordingly, the present convict and two others after their case being committed to the learned Court of Sessions have stood their trial, when the learned trial Court after going through the materials on record upon hearing the parties & finding prima facie materials to presume the convict and two other accused persons to have committed the crime framed the charge against them for commission of offences punishable U/Ss.328/366/364-A /34 of IPC and 376(2)(g) of the IPC. 3. In support of the charge, the prosecution examined altogether 8 witnesses vide PWs.1 to 8 and proved 16 documents under Exts.1 to 16 as against no evidence whatsoever by the defence, but in the course CRLA No.857 of 2023 Page 3 of 11 of trial, the plea of the convict was denial simplicitor and false implication. 4. After analyzing the evidence on record upon hearing the learned counsel for the parties, the learned trial Court finding sufficient evidence against the appellant convicted him for commission of offence punishable U/Ss.328/366/376(1) of IPC and sentenced him to the punishment indicated supra. Being aggrieved with the judgment of conviction and order of sentence, the convict has preferred this appeal. 5.
Legal Reasoning
In the course of hearing of the appeal, Ms. C. Kashturi, learned counsel for the appellant by filing a memo, which is taken on record, informs the Court that the convict does not want to challenge his conviction, but seeks leniency in the punishment and, accordingly, Ms. Kashturi submits that since the appellant has already been detained in custody for more than seventeen years which is much excess to the substantive sentence as well as the default sentence and although he has been detained in custody for CRLA No.857 of 2023 Page 4 of 11 undergoing the default sentence after his apprehension on NBWA, the demands of leniency in this case matures into clemency requiring the convict to be released immediately from custody forthwith in the circumstance. Accordingly, Ms. Kasturi prays to modify/alter the sentence of the appellant to the period already undergone and give benefit of set off. 5.1. On the other hand, Mr. S.K. Rout, learned Additional Public Prosecutor, however, does not dispute about the convict undergoing more than substantive sentence and default sentence even calculated together, but he, however, informs the Court that the convict having been apprehended subsequently after the judgment on the strength of an NBWA is directed to undergo the default sentence and, thereby, his release from custody forthwith would be considered as applying misplaced sympathy on him. Accordingly, Mr. Rout prays to dismiss the appeal. 6. After having considered the rival submissions upon going through the evidence on record CRLA No.857 of 2023 Page 5 of 11 together with the impugned judgment, this Court finds that the victim in this case has described the incident in evidence vividly by testifying in the Court that on the day of occurrence at about 8 PM while she had gone to the nearby field to attend call of nature, all the three accused persons came behind her and made her to inhale some stupefying substance for which she became lazy and they took her to a commander jeep and carried her in that jeep. The evidence of victim further transpires that all the accused persons including the convict had taken the victim to a place inside a forest and the present convict committed rape upon her and, he thereafter, made her to inhale some stupefying drugs for which she lost her sense. It is her further evidence that on the following day morning on a Saturday, she regained her sense and cried as well as requested the convict to release her, but the convict warned her not to shout and cry by giving threatening to kill her. The victim was in fact put to grueling cross- examination by the defence, but nothing substantial was elicited from her mouth to discredit her evidence. CRLA No.857 of 2023 Page 6 of 11 Further, in a case of this nature, the evidence of the victim is paramount consideration and deserves well acceptance, unless the same is tainted, unbelievable and suspicious. On a careful scrutiny of the evidence of victim, nothing was found to disbelieve the occurrence. Further, the cross-examination of the victim by the defence reveals that the convict had committed rape upper her. The father of the victim has also tendered evidence supporting the case of missing of her daughter and rescue from the clutches of the convict. The aforesaid substantive evidence available against the convict has never been contradicted nor demolished and, thereby, the occurrence having well proved by the prosecution in the standard of scale beyond all reasonable doubt, the learned trial Court has not committed any illegality in convicting the appellant for commission of offence punishable U/Ss.328/366/376 of IPC. However, Ms. Kashturi, learned counsel for the appellant has wisely not challenged the conviction of the appellant, but she, however, has pleaded for leniency in the sentence. CRLA No.857 of 2023 Page 7 of 11 7. In order to address the issue of clemency to the appellant for extending leniency in sentencing as advanced, it appears to the Court that the convict had already been in custody w.e.f. 04.10.2005 to 23.09.2022 and, thereby, the convict had been in custody for seventeen years and thereafter, for suffering the default sentence, but it is also not disputed that on the date fixed for judgment on 22.06.2023, the convict was not present and absent on repeated call forcing the learned trial Court to issue NBWA and, thereby, the learned trial Court could not pronounce the judgment on the date fixed for it, however, the presence of the convict was secured on 11.07.2023 by way of an NBWA issued against him and the said judgment was pronounced and the convict was heard on the question of sentence and, accordingly, the learned trial Court sentenced the convict to different punishments for the offences proved against him by awarding substantive sentences and fine with default sentences. CRLA No.857 of 2023 Page 8 of 11 8. Be that as it may, even if we add the default sentences together with the substantive sentences which have been directed to run concurrently, the period of custody of the convict would be more than that the sentences and, therefore, taking into consideration the aforesaid fact and the offence being committed around twenty years back, this Court considers that the convict deserves some leniency in sentence. In the fitness of circumstance and by taking into the long incarceration period of the convict as an under trial prisoner as well as convict suffering for default sentences and the judgment having been pronounced after seventeen years custody of the convict as stated in the judgment, it would be just and proper, if some clemency is extended to the convict. Accordingly, the default sentences of one year for non- payment of fine for commission of each of the offences U/Ss.328/366/376 of IPC as awarded to the convict, be cumulatively considered and to have the period already undergone, the convict-appellant is hereby directed to undergo Rigorous Imprisonment (RI) for 10 years and CRLA No.857 of 2023 Page 9 of 11 to pay fine of Rs.5,000/-, in default whereof, to undergo RI for a further period of six months for offence U/S.376(1) of IPC; to undergo RI for 7 years and to pay fine of Rs.5,000/-; in default whereof to undergo RI for a further period of six months for offence U/S.366 of IPC; and to undergo RI for 7 years and to pay fine of Rs.5,000/-; in default whereof to undergo RI for a further period of six months for offence U/S.328 of IPC. At the same time, it is clarified that the convict is entitled to the benefit of set off for his pre-trial detention against the substantive sentences which have been directed to run concurrently. 9. In the result, the appeal stands dismissed on contest, but in the circumstance, there is no order as to costs. Ergo, the conviction of the appellant is maintained, but the sentences of the appellant are hereby modified to the extent indicated above. Since the appellant is in jail custody, warrant of release on appeal in Form No.(M)78 of GR & CRLA No.857 of 2023 Page 10 of 11 CO, (Criminal) Vol-II 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 155 of the GR & CO, (Criminal) Vol-I. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 6th day of February, 2025/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 07-Feb-2025 18:17:41 CRLA No.857 of 2023 Page 11 of 11