Criminal Appeal No. 63/34 of 2004 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 546 of 2021 Suren Bag @ Soren Bag …. Petitioner(s) -versus- State of Odisha …. Opposite Part(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner (s) For Opposite Party(s) : : Mr. Sudipto Panda, Adv. Mr. Dhirendra Kumar Mohapatra, Adv. Mr. G.R. Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-19.10.2023 DATE OF JUDGMENT: -10.11.2023 Dr. S.K. Panigrahi, J. 1. This CRLREV has been filed challenging the judgment dated 02.07.2005 passed by the Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 63/ 34 of 2004-2005 (arising out of ST Case No. 254/4 of 2003-04 decided by Learned CJM-Cum-Asst. Sessions Judge, Sundargarh) confirming the conviction and modifying the sentence vide judgment dated 23.09.2004 in Sessions Trial No.254/4 of 2003-04 (arising out of GR Case No. 570 of 2001 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 1 of 14 corresponding to Bhasma P.S. Case No.102 of 2001, committed to the court of Sessions by the Learned S.D.J.M., Sundargarh). I. FACTUAL MATRIX OF THE CASE: 2. The petitioner in this criminal revision, inter-alia, is challenging the judgment dated 02.07.2005 passed by Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 63/34 of 2004-
Legal Reasoning
2005 (arising out of ST Case No. 254/4 of 2003-04 decided by Learned CJM-Cum-Asst. Sessions Judge, Sundargarh) confirming the conviction and modifying the sentence vide judgment dated 23.09.2004 in Sessions Trial No. 254/4 of 2003-04 (arising out of GR Case No. 570 of 2001 corresponding to Bhasma PS Case No. 102 of 2001, committed to the court of Sessions by the Learned SDJM, Sundargarh), wherein the Learned CJM-Cum- Asst. Sessions Judge, Sundargarh passed sentence the convict to undergo RI for 7 years and to pay a fine of Rs. 2,000/- in default to payment undergo simple RI for two months so far as the offence under Section 376(1) of the I.P.C. is concerned and further sentence the convict to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment for one year so far as the offence under Section 363 of the I.P.C. is concerned, substantive sentence to run concurrently. 3. The Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh confirmed the conviction and modifying the sentence and partly allowed exonerating offence under Section 376(1) of the I.P.C. and Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 2 of 14 set aside the sentence imposed by the court below, however, convict the petitioner u/s 363 of IPC and confirmed the substantive sentence reduced it to rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to undergo further R.I. for one month. 4. The brief fact of the case is that, on 12.10.2021 the informant Parbati Patel, W/o - Raghunath Patel of Ledhimong, PS - Bhasma Dist - Sundargarh lodged a written report before the IIC, Bhasma PS alleging therein that the said Raghunath Patel as an indoor patient at the District Headquarters Hospital, Sundargarh and his wife Parbati Patel was also at the hospital to look after him and that their children including the eldest daughter namely Pankajini who was aged about 15 years and 6 months at the relevant time were at the home, when the parents came back from the hospital after spending about 10 days there, they found their eldest daughter missing and an enquiry they came to learn on 05.10.2001 that the petitioner being a co- villager and a married person with a male child had taken her daughter to some place by assuring her that he would keep her as his wife. 5. The paternal uncle of the victim girl along with two bothers found the petitioner and the victim girl in the house of the sister and brother-in-law of the petitioner situated at Vill - Sourimuna and after obtaining undertaking in writing from the petitioner and the victim girl in presence of some gentlemen of that village to the effect that Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 3 of 14 they would not leave that house till arrival of the gentries from the village of the petitioner. The victim girl, the paternal uncle and his companions came back. However, the petitioner and victim girl went away from village Sourmunda inspite of these undertaking on account of which mother of the victim lodged the FIR before the Bhasma P.S. Based on the report, the IIC, Bhasma P.S. registered the FIR vide Bhasma P.S. Case No. 102 of 2001 corresponding to G.R. Case No. 570 of 2001 of the file of Learned S.D.J.M., Sundargarh for the offence under Section 363 of I.P.C. 6. The IO visited the spot, conducted a raid and at about 4 AM recovered the victim girl and the accused from the house of the accused and recorded their statement under Section 161 of the Cr.P.C. and other witnesses were examined and the accused was arrested. Both the accused and the victim girl were then sent for medical examination and thereafter the accused was forwarded to the court and after completion of investigation the IO submitted charge sheet u/s 363/366/376 of IPC. 7. The defence plea is completely denial and plead false implication. During recording of their statement under Section 313 of the Cr.P.C. the accused person denied all the incriminating circumstances under which the Petitioner has been dragged. 8. In order to bring home charge, the prosecution examined all together ten witnesses out of whom PW-1 is the mother of the victim girl, PW-2 is a co-villager and scribe of the FIR, PW-3 is the victim girl, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 4 of 14 PW-4 is the maternal uncle of the victim, PW-5 is another co-villager, PW-6 is Sashi Dutia in whose house accused had kept the victim girl as alleged by the prosecution, PW-7 is the Medical Officer who had examined the accused, PW-8 is Headmaster of Ledhimong UP School where the victim last studied, PW-9 is the Lady Medical Officer who had examined the victim girl and PW-10 is the IO. Defence has not preferred to examine any witnesses. The prosecution marked documents from Ext-1 to Ext-16, no documentary evidence was adduced on behalf of the defence and MO-I and to MO-V have been adduced by the defence. 9. Challenging the said judgment, the petitioner preferred Criminal Appeal No.63/34 of 2004-2005 before the Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh which was disposed of on 02.07.2005 confirming the conviction and modifying the sentence in judgment dated 23.09.20004 passed by the Learned CJM-Cum-Asst. Sessions Judge, Sundargarh. II. PETITIONER’S SUBMISSIONS: 10. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: 11. The assessment of evidence of the prosecution witness made by the learned trial court suffers from non-application of judicial mind as such the same is liable to be set aside. The learned trial court has acted illegally in having not scanned the evidence on record in proper legal prospective. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 5 of 14 12. The reasons given by the learned court below to believe the prosecution evidence runs counter to the principles laid down for assessing the evidence of witnesses. The learned court below has lost its judicial mind so far the deposition and statement of the doctor is concerned and failed to ascertain the actual age of the girl which is more than 17 years as the girl herself has stated that her age is more than 19 years. 13. Though the appellate court exonerated the petitioner from the offence under Section 376 of IPC but taking the plea of the offence under Section 363 of IPC is also bad in the eye of law. Since the girl out of her sweet will has come out from her own house, the court below has failed to apply his judicial mind while assessing the submissions of PW-3 specifically during her cross-examination. There are so many discrepancies in the statements recorded under Sections 161 and 164 of the Cr.P.C. 14. The learned court has failed to appreciate the evidence and the version of PW-3, it appears to be an afterthought inasmuch as neither she has stated so before the police nor the Learned Magistrate or any of the neigbours of the victim girl has been examined to prove such a fact. 15. The learned court has completely failed to appreciate the medical evidence so far the doctor (PW-9), could not find any sign or recent sexual intercourse more specifically any sign of sexual violence. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 6 of 14 III. COURT’S REASONING AND ANALYSIS: 16. In the case at hand, there is serious dispute concerning the age of the
Legal Reasoning
victim girl at the relevant time. According to the learned counsel for the Petitioner, the victim girl herself during her examination under Section 164, Cr.P.C. had stated that she was aged about 20 years at that time and therefore, no case is made out either under Section 361 or under Section 375, IPC so as to make the Petitioner liable for punishment under Section 363 or 376, thereof. 17. On scrutinizing the entire evidence including the deposition of the victim girl (P.W.3) there is no hesitation to hold that the appellant did not have any sexual intercourse with the victim girl against her will or without her consent. Therefore, the question regarding the age of the victim girl at the relevant time assumes much importance. 18. The learned court below has relied upon the version of P.W.1, the mother of the victim girl and that, P.W.3, the victim girl herself, as well as the school admission register (Ext.5) and the ossification test report (Ext.7); in order to arrive at a conclusion that the victim girl was less than 16 years of age at the relevant time. So far as the school admission register is concerned, a bare perusal thereof shows that the victim girl was admitted in U.G.M.E, School on 14.7.1992 and she left the school on 31.12.1997 and that her date of birth has been recorded in the said register as 11th March, 1986. 19. It also appears from the said document that father of the victim girl has signed on the relevant column of the register. P.W.8 being the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 7 of 14 headmaster in charge of the said school has been examined and he produced the aforesaid school admission register from his custody. Though, P.W.8 has deposed that usually they enter the date of birth with reference to the birth certificate or to the certificate issued by the Anaganwadi Centre, such document has either been seized or produced before the Court by the prosecution. Therefore, it can be presumed that on the basis of the statement of the father of the victim girl whose signature appears on the relevant column of the admission register, the date of birth of the victim girl was recorded. In fact, said father of the victim girl has not been examined as a witness. 20. From the deposition of P.W.1, the mother of the victim girl, it appears that she is a labourer by occupation and they belong to lower strata of the society. So far as the medical evidence is concerned, it transpires from the report of ossification test of the victim girl (Ext.) that she was above 15 years and below 17 years at the relevant time. However, the doctor who had conducted the ossification test has opined that for more accurate opinion of the Radiologist/ E.M.T. expert can be obtained. The said doctor has been examined as P.W.9 and it reveals from his deposition that the age of the victim girl with reference to the X-ray since there was no radiology in their hospital. In the present case, the doctor has opined that, age of the victim girl was in between 15 to 17 years at the relevant time. Hence, applying the principle laid down by the Apex Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 8 of 14 Court that defence is entitled to rely on the higher side of the age given by the doctor, the victim girl in the case at hand was aged about 17 years or in other words was above 16 years of age at the relevant time. 21. The second issue is whether that the appellant-convict had taken or enticed the victim girl who was under 18 years of age at the relevant time out of the keeping of her lawful guardian without the consent of such guardian. In the case at hand, the victim girl, who was a minor under 18 years of age at the relevant time had eloped with the appellant and the appellant who was admittedly a married man with a male child born out of his wedlock, continued to have such relationship with the victim girl and ultimately the victim girl eloped with the appellant taking advantage of the prolonged illness of her father and the consequential absence of her parents from the house. 22. It may be relevant to note in this context that though the victim girl had stated before the I.O. as well as before the learned Magistrate during her examination under Section 164 of the Cr.P.C. that on 26.9.2001 she ran away from her parents house with appellant to remain as his wife as they were in love with each other. She has also stated that she left her parents’ house on her own accord. She gave a completely different picture during her examination in the Court. The learned court below appears to have accepted her version during the trial relying on her statement that she had been instructed Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 9 of 14 by the appellant before the police any the Magistrate not to speak the truth. 23. It is seen that the victim girl (P.W.3) has deposed in the court that she had no intimacy with the accused and that he was virtually stranger to her. However, at about 10 p.m. during the night of occurrence, when she came out to attend the call of nature the accused emerged at the point, gagged her mouth and forcibly took her in his bicycle to village Kelda where the accused kept her in the house of his sister for two days and therefrom he took her to village where she was kept in the house of the sister-in-law of the accused for a day, thereafter, she was taken to village where she was kept in the house of one Sashi. 24. P.W.3 has admitted during her cross-examination that she had not disclosed the facts either before the police or before the learned Magistrate. For the first time, on that day she was disclosing these facts. From the case diary, it reveals that statement of the victim girl was recorded under Section 161 of the Cr.P.C. on 13.10.2001 after her recovery from the house of the appellant and that her statement was recorded under Section 164, Cr.P.C. on 15.10.2001. It further appears from the case diary that the appellant was arrested on 13.10.2001. P.W.3 during her cross examination has also deposed that when she was taken to P.S. after her recovery the accused was kept in the lock up. Though, it transpires from the record that the custody of the victim girl was given to her mother on 15.10.2001, as per the orders Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 10 of 14 of the learned Sub-Divisional Judicial Magistrate, Sundargarh, there is nothing on record to indicate as to where the victim girl was kept after her recovery, till her custody was given to her mother. There is no entry in the case diary regarding the investigation held on 14.10.2001. Be that as it may, it cannot certainly be said that there was any scope for the appellant to influence the mind of the victim during her examination under Section 164, Cr.P.C. since at that point of time the Petitioner was in custody. 25. Thus, the version of P.W.3 being tutored and threatened by the accused and she had given her statement before the learned Magistrate under coercion cannot be believed. That apart, P.W 3 has deposed during her cross examination that she sat on the back carrier of the cycle of the accused and he rode that cycle and she was screaming aloud. It is not understood as to why the victim girl did not jump from the back side of the carrier of the cycle, if at all she was being taken away by the accused against her will, for which she had sufficient opportunity. Further, the victim girl was not a small kid who could not jump from cycle. The version of P.W.3 that she was screaming aloud also appears to be an after-thought, in as much as neither she had stated so before the police or the learned Magistrate, nor any of the neighbours of the victim girl has been examined to prove such a fact. Had it been a fact that the victim girl had screamed aloud then the inhabitants of the neighbouring house could have heard that loud scream. It may also be pertinent to note Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 11 of 14 that D.W.3 has stated during her cross examination that she had divulged the entire facts before her paternal uncle(P.W.4) as well as her mother (P.W.1). However, neither of them has whispered a word during the trial that the victim girl bad divulged before them regarding the manner in which she was kidnapped and was subjected to sexual intercourse. Thus, no reliance can be placed on the version of P.W.3 with regard to the alleged kidnapping and manner of sexual intercourse considering the amount of discrepancies in the statements. 26. It is also relevant to note from the medical evidence that the doctor (P.W.9) could not find any sign of recent sexual intercourse or any sign of sexual violence. Thus, it can be safely concluded that the victim girl had left her parents house on her own accord. The appellant-convict appears to have induced the victim girl to leave her parents’ house by giving her an assurance to marry or to keep her as his wife, though the Petitioner was married by then. Therefore, it is clear that the Petitioner/convict had enticed the victim girl who was under 18 years of age, out of keeping her lawful guardian without the consent of such guardian and thereby has committed the offence of kidnapping a minor girl from her lawful guardian. The offence under Section 361, IPC, which is punishable under Section 363 of the I.P.C. thereof, is therefore, made out against the Petitioner/convict and his conviction Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 12 of 14 27. So far as the offence punishable under Section 376(1), IPC is concerned, having arrived at a conclusion that the victim girl was above 16 years of age and that the appellant-convict never had sexual intercourse with her against her will or without her consent, no offence of rape as defined under Section 375, IPC can be said to have been made out. The conviction of the appellant under Section 376, IPC and the consequential order of sentence related to such offence cannot therefore, be sustained in the eye of law. 28. So far as the sentence under Section 363, IPC is concerned, it is seen that the learned Court below has sentenced the Petitioner/convict to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1000/- with default stipulation. The Petitioner/convict is said to be a labourer by occupation. Considering the circumstances under which the offence was committed and taking into account the socio- economic background of the Petitioner/convict and in view of the fact that the victim girl has been leading a peaceful married life with another person, there being no interference from the side of the Petitioner/convict, this Court is of the considered opinion that the sentence imposed by the learned Court below is deserved to be set aside. 29. With respect to the aforesaid discussion, this Court accedes the submission of the Petitioner. The judgment dated 02.07.2005 passed by the Learned IInd Ad hoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No.63/ 34 of 2004-2005 is, accordingly, set aside. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 13 of 14
Decision
30. Accordingly, this CRLREV is disposed of. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 10tth Nov., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 14 of 14