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2003 DIGILAW 660 (ORI)

MOHAN DAS v. STATE OF ORISSA

2003-11-12

A.S.NAIDU

body2003
JUDGMENT : A.S. Naidu, J. - This Criminal Revision has been filed challenging the judgment dated 28.11.1997 passed by the learned Additional Sessions Judge, Bhadrak in Criminal Appeal No. 57 of 1994 modifying the judgment dated 14.9.1994 passed by the Asst. Sessions Judge-cum-C.J.M., Bhadrak in S.T. No. 3 of 1994/ 200 of 1993 2. On the basis of an F.I.R lodged by P.W. 3 on 16.11.1992 alleging that on 14.11.1992 at about 7.30 PM his minor daughter was kidnapped by accused Mohan Das with the help of his sister Pakan Das who caught hold of his daughter and lifted her to some unknown place. The informant searched for his daughter but could not trace her out. Later, he heard from the sister of accused Mohan Das that the latter had kidnapped her with a view to marry her either at Aradi or Biraja or at Tarini temple. On the basis of said F.I.R., Criminal action was set in motion and after investigation police submitted charge-sheet against the Petitioner under Sections 363/366 I.P.C. The Petitioner faced trial in S.T. No. 3/94 (200/93). In order to substantiate its case the prosecution examined as many as eight witnesses and exhibited six documents. The plea of defence was complete denial. 3. The trial Court after discussing the evidence, both oral and documentary, held the Petitioner guilty of charges under Sections 363 and 366 Indian Penal Code., convicted him there under and sentenced him to undergo RI for one year u/s 363 I.P.C. and RI. for three years u/s 366 Indian Penal Code. Both the sentences were directed to run concurrently, subject to set off. An appeal was preferred by the Petitioner against the said judgment of the trial Court, vide Criminal Appeal No. 57 of 1994. The appellate Court set aside the order of conviction and sentence passed against the Petitioner u/s 363 Indian Penal Code. and acquitted him of the said charge. However, the conviction of the Petitioner u/s 366 I PC was maintained but the sentence passed by the trial court for the said charge was modified from RI. for three years to RI. for one year, directing to set off the period of imprisonment already undergone as per law. 4. Heard Mr. P K. Sahu, Learned Counsel appointed as amicus curiae as Learned Counsel for the Petitioner did not appear. Mr. for three years to RI. for one year, directing to set off the period of imprisonment already undergone as per law. 4. Heard Mr. P K. Sahu, Learned Counsel appointed as amicus curiae as Learned Counsel for the Petitioner did not appear. Mr. Sahu forcefully submitted that after arriving at the conclusion that the prosecution failed to establish the charge u/s 363 Indian Penal Code, the appellate Court erred in convicting the Petitioner u/s 366 Indian Penal Code. It was also submitted that none of the ingredients of the offence u/s 366 I.P.C. is satisfied or established: According to him, the order of conviction and sentence is based on no material and is contrary to the evidence on record and is liable to be set aside. 5. Learned Addl. Standing counsel supported the impugned judgment and submitted that the courts below taking into consideration the evidence, both oral and documentary, have rightly held that the Petitioner had committed the offence u/s 366 I.P.C. and the order of conviction should be maintained. 6. After hearing both the sides, I perused the evidence and other materials. Law is well settled that in order to establish a charge u/s 366 I.P.C., prosecution has to prove beyond all reasonable doubts that the accused kidnapped or abducted the woman: (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) in order that she may be forced of seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. 7. The second part of the section requires two things: (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from an place. (2) Such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse, with some person. 8. According to Mr. Sahu, the aforesaid ingredients of Section 366 I.P.C. are not made out in the present case. (2) Such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse, with some person. 8. According to Mr. Sahu, the aforesaid ingredients of Section 366 I.P.C. are not made out in the present case. On perusal of the evidence, both oral and documentary, I find that prosecution has utterly failed to prove any of the ingredients of Section 366 I.P. C. Admittedly, the Petitioner has been acquitted of the charge u/s 363 I.P.C. There is no evidence regarding the intention of the Petitioner to either force or seduce the victim to illicit intercourse or compel her to marry the accused or any other person. In absence of such ingredients, according to me, the charge u/s 366 I.P.C. cannot be sustained. That apart, the Petitioner has been acquitted of the charge of commission of an offence u/s 363 I.P.C. and the said order has become final. I, therefore, set aside the order of conviction and sentence passed against the Petitioner for the charge u/s 366 I.P.C. and acquit him of the said charge. 9. The Criminal Revision is allowed. Final Result : Allowed