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2002 DIGILAW 478 (ORI)

AKHAYA KUMAR BEHERA v. STATE OF ORISSA

2002-07-31

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy, J. - Appellant challenges the order of conviction passed against him by the Assistant Sessions Judge, Athagarh on 19.12.1996 in S.T. Case No. 280 of 1996. It appears from the impugned judgment that Appellant was charged for the offence punishable under Sections. 419. 468, 471 and 366, IPC on the allegation that by impersonating himself as a Registered Medical Practitioner and disclosing his name as 'Manoj Kumar Pradhan', he was doing medical practice for gain. He had also forged and fabricated documents" like prescription pad name plate, etc., by quoting a registration number with a view to deceive people and in that process he visited to the house of one Atal Chandra Sahu (P.W. No. 1) to give treatment to his wife (P.W. No. 4). On repeated visits to his house he gained acquaintance with the eldest daughter of P.W. No. 1 who was examined as P.W. No. 5 and on 17.1.1996, eloped with her. Instead of immediately reporting the matter to the Police so as to avoid publicity and bad name resulting in harassment and humiliation to his family P.W. No. 1 with his friends and relations made search and collected informations. On 26.1.1996, on getting information that the Appellant with P.W. No. 5, were staying at Govindpur (in Sambalpur District) he lodged FIR registered as Gurudijhatia P.S. Case No. 15 of 1996 and the girl was recovered from the house of P.W. No. 8 in village Pandiripathar under Govindpur Police-station. In course of that investigation, it could be un-earth that the Appellant is not a qualified medical practitioner, he had no better education than Standard VIII and the registration No. displayed in his name plate as Manoj Kumar Pradhan' belongs to some other Doctor. Under such circumstances, the Appellant was charge-sheeted, charged and tried for the offences already indicated above. 2. In all, 12 witnesses were examined by the prosecution and it relied en six exhibited documents and two material objects. P.Ws. 2 and 3 are the two other daughters of P.W. No. 1 and P.W. No. 7-is his brother. All of them depose about the activities of the Appellant behaving as a Doctor besides the allurement persuasion and the cheating made by him. They alleged that Appellant kidnapped P.W. No. 5. P.Ws. P.Ws. 2 and 3 are the two other daughters of P.W. No. 1 and P.W. No. 7-is his brother. All of them depose about the activities of the Appellant behaving as a Doctor besides the allurement persuasion and the cheating made by him. They alleged that Appellant kidnapped P.W. No. 5. P.Ws. 6 and 9 are the other independent witnesses who deposed about the activities of the Appellant behaving as a Doctor and cheating and persuading the villagers in that manner and in that respect, P.W. No. 6 himself was treated as a patient by the Appellant. P.Ws.10 and 11 are the witnesses to the seizure of different articles including sign board, blank prescription pad and prescription written by the Appellant. P.W. No. 12 is the Investigating Officer. 3. The defence plea of the Appellant was one of complete denial to the aforesaid allegations and the charges. However, he did not adduce any evidence. 4. On assessment of evidence on record trial Court recorded the finding regarding forging and fabricating documents by the Appellant to cheat the people including the family of P.W. No. 1 as a Medical Practitioner. The trial Court also recorded the finding that Appellant also cheated the P.W. No. 5 conveying to her that he is a qualified Medical Practitioner while persuading her to come alongwith him for marriage. The trial Court further held that even if P.W. No. 5 was above 18 years of age by the date of occurrence, but she being enticed away and at that time threat was given to her. therefore, the offence of kidnapping is proved. Thus, the trial Court convicted the Appellant for each of the aforesaid offences. Learned Assistant Sessions Judge imposed the sentence of R.I. for two years for the offence u/s 419, IPC. R.I. for one year, for the offence u/s 471, IPC, R.I. for five years, for the offence u/s 468, IPC and R.I. for six years, for the offence u/s 366. IPC. Trial Court also imposed a fine of Rs. 500/- each for the conviction under Sections. 468 and 366. IPC and in default directed him to suffer R.I. for six months more on each count. The trial Court directed the sentences to run consecutively. 5. After placing the judgment and the evidence on record, learned Counsel arguing for Appellant, though advances argument criticising the order of conviction for the offence under Sections. 468 and 366. IPC and in default directed him to suffer R.I. for six months more on each count. The trial Court directed the sentences to run consecutively. 5. After placing the judgment and the evidence on record, learned Counsel arguing for Appellant, though advances argument criticising the order of conviction for the offence under Sections. 419, 468 and 471, IPC but ultimately he has to agree that the order of conviction for such offences is based on evidence on record A deliberation in that respect in Court between the two counsels while advancing the argument has resulted in that conclusion conceded by the learned Counsel for the Appellant. Indeed, on a perusal of evidence on record, this Court also finds that the order of conviction for the aforesaid three offences is unassailable because of proof of such offences beyond all reasonable doubts. Thus, order of conviction of the Appellant for the offence under Sections. 419, 468, 471, IPC stands confirmed. 6. Mr. Chand arguing on behalf of the Appellant, contends that by the date of occurrence P.W. No. 5 who is a College going Student was admittedly about 19 years old. From Gurudijhatia the Appellant and P.W. No. 5 moved to several places during the period of elopement of about ten days. Evidence on record shows that P.W. No. 5 refused to be examined medically though Police had made such a requisition. Therefore, the aforesaid evidence is clear enough to indicate that there was no threat at all by the Appellant to P.W. No. 5, when she moved with him. He further argued that Appellant neither kidnapped nor abducted P.W. No. 5 within the meaning of the term as defined in Sections 359. 361 and 362, IPC and therefore, appellant?s conviction u/s 366, IPC is without any evidence on record and the same be set aside. Mr. Aswini Kumar Misra, learned Standing Counsel fairly concedes to that position on record both factually and legally. This Court while not finding a case of kidnapping as aefined in Section 359. IPC made a search of evidence to find out if a case of abduction as defined in Section 362, IPC is made out inasmuch as abduction means use of force or deceitful means to compel or induce a person to go from any place. In that respect, only evidence which is to be perused is that of P.W. No. 5. IPC made a search of evidence to find out if a case of abduction as defined in Section 362, IPC is made out inasmuch as abduction means use of force or deceitful means to compel or induce a person to go from any place. In that respect, only evidence which is to be perused is that of P.W. No. 5. In her evidence she has stated that she accompanied the Appellant, because of the threat given by him to kill her. As already noted such a plea is far from the reality. She has not alleged of any inducement made by the Appellant. In that respect, no other evidence is available to show or suggest a case of inducement. Under such circumstance, this Court not only agrees with the argument advanced by the parties but also appreciates the fairness of learned Standing Counsel. It is thus borne out from the evidence on record that prosecution has not been able to prove a case of kidnapping or abduction against the Appellant. For the reasons indicated above, appellant?s conviction u/s 366, IPC is set aside. 7. Learned Counsel for the Appellant argues that the trial Court has directed the sentences to run consecutively. This Court wanted to be considerate in that respect to pass an order for running of the sentence concurrently. But it is seen on record, that after rejection of his prayer forbail on 10.6.1997, Appellant renewed his prayer for bail on 24.10.1977 on the ground of sister's marriage said to have been fixed to 29.10.1997. Therefore Hon'ble Judge hearing the bail application became considerate enough and allowed the Appellant to go on bail with a direction to surrender by 5th of November. 1997. Though the Appellant was so released but he did not surrender and thereafter, on the direction of this Court steps were taken by the trial Court to get him arrested and consequently intimation was received by this Court on 10.1.2000 that the Appellant was arrested and remanded to jail. In view of that conduct of the Appellant, he does not deserve any sympathy after committing offences like cheating and forgery and therefore, this Court is not inclined to modify the sentence in any manner. 8. In the result, the appeal is allowed in part by setting aside the order of conviction u/s 366, IPC but the conviction and sentence of the Appellant under Sections. 8. In the result, the appeal is allowed in part by setting aside the order of conviction u/s 366, IPC but the conviction and sentence of the Appellant under Sections. 419, 468 and 471. IPC is maintained.