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2007 DIGILAW 365 (ORI)

Kalandi Mallick v. State

2007-05-16

A.S.NAIDU

body2007
JUDGMENT A.S.NAIDU, J. — The two appellants seek to assail the judgment dated 8th November, 1989 passed by the learned Addl.Sessions Judge, Jajpur in Sessions Trial No.248 of 1988/ 38 of 1989 con¬victing them of the charge under Section 366 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 ,000.00, in default to undergo rigorous imprisonment for further two months. 2. The short facts of the case that on 29.4.1988, P.W.6 Kalpana, the daughter of P.W.1 Nisakar was kidnapped. P.W.1 filed an FIR at the Jajpur Police Station in that regard alleging that the two accused-appellants (Kalandi and Gangadhar) had taken Kalpana in a trekker on the pretext of going to Biraja Temple and in fact they directed the vehicle to proceed to Panikoili Chhak. At Panikoili Chhak Gangadhar, accused-appellant No.2, asked Kalandi, accused-appellant No.1, to take Kalpana to Paradeep. Accordingly Kalandi took Kalpana to Paradeep. At Paradeep she was taken to the residence of Baruna Mallik and Swadesi Mallik, brothers of appellant No.1, who were accused Nos.3 and 4 before the trial Court. On 30.4.1988 appellant No.1, his aforesaid two brothers Baruna and Swadesi and Chakradhar Mallik who was accused No.6 before the trial Court took Kalpana to Sarala Temple where they forced her to marry accused-appellant No.1 Kalandi. In spite of protest the marriage was performed by exchange of garlands. The very day they returned to Paradeep and Kalpana was kept confined in the house of one Puria who is the sister of accused-appellant No.1 and accused Nos.3 and 4 at Madhuban, a hamlet of Paradeep and in the night accused-appellant No.1 forcibly and without consent of Kalpana cohabited with her. After receiving the FIR police rescued Kalpana, but then as no further steps were taken by police, P.W.7 filed a complaint before the SDJM, Jajpur which was registered as ICC No.159 of 1988. The said case having been committed to the Court of Session, the aforesaid Sessions Trial was registered. All the accused persons were charged for having committed offence under Section 366 IPC and accused-appel¬lant No.1 Kalandi was further charged for having committed of¬fence under Section 376 IPC. The defence of the accused persons before the trial Court was complete denial. The said case having been committed to the Court of Session, the aforesaid Sessions Trial was registered. All the accused persons were charged for having committed offence under Section 366 IPC and accused-appel¬lant No.1 Kalandi was further charged for having committed of¬fence under Section 376 IPC. The defence of the accused persons before the trial Court was complete denial. It was also stated by them that Kalpana was a major at the time of the alleged occurrence and being in love with accused-appellant No.1 Kalandi she voluntarily proposed to marry Kalandi on 29th April, 1988 out of her own sweet-will, boarded ‘SULTANA’ bus near Biraja Temple, went to Sarala Temple where both of them married. They stated that the case had been falsely foisted. 3. In order to substantiate the charge, prosecution got eight witnesses examined on its behalf. P.W.1 was the father of victim Kalpana and P.W.6 was Kalpana, P.W.2 stated to have seen Kalpana sitting in between the accused-appellants in a trekker which was proceeding towards Jajpur and to have informed the said fact to P.W.1; P.W.3 was a cousin of Kalpana who claims to have rescued Kalpana from appellant No.1 Kalandi; P.W.4 was a Grama¬rakshi who had accompanied P.W.1 to the police station to lodge FIR; P.W.5 was the scribe of the FIR; P.W.6 was victim Kalpana; P.W.7 was a post-occurrence witness and P.W.8 was the driver of the trekker. 4. After vivid discussion of the evidence, both oral and documentary, the trial Court came to hold that Ext.D series the love letters had been written by the victim to appellant No.1 Kalandi that the girl was in love with Kalandi and that there was no application for force on the victim by the appellants in kidnapping her. It disbelieved the allegation of rape, but then held that the two appellants had committed the offence under Section 366 IPC as the victim girl was a minor on the date of the alleged occurrence. Accordingly while acquitting the four co-accused of the appellants of the charge under Section 366 IPC, convicted the appellants of the said charge and sentenced them as stated above. 5. The only question that remains to be considered in the present case is whether the victim Kalpana was a minor on the date of the alleged occurrence or had become major. 5. The only question that remains to be considered in the present case is whether the victim Kalpana was a minor on the date of the alleged occurrence or had become major. Kalpana who was examined as P.W.6 has deposed that her date of birth to be 13.6.1973. Her mark-sheet in the HSC Examination and Admit Card for that Examination have been marked as Exts.2 and 3 respec¬tively. Both the said documents reveal that the age of victim Kalpana on the date of the alleged occurrence was 14 years 10 months 16 days. Here is a case where no ossification test was conducted to determine the age of the alleged victim. On the basis of the evidence of P.W.1, father of victim Kalpana, if calculation is made, she would have been a major on the date of the alleged occurrence. No doctor was examined by the prosecu¬tion. The trial Court having come to the conclusion that the allegation of rape was not made out against appellant No.1 Kalan¬di has acquitted him of the said charge. It appears that the trial Court has convicted the appellants of the charge under Section 366 IPC while on the same set of evidence has acquitted the four co-accused of the appellants. 6. Learned counsel for the appellants strenuously contend¬ed that the love letters vide Ext.D series amply prove that victim Kalpana was deep in love with appellant No.1 Kalandi and on that basis the trial Court ought to have discarded the allega¬tion of the prosecution as to kidnapping of the victim by the appellants and other accused persons. He further submitted that the academical certificates of the victim also indicated that she was a major on the date of the alleged occurrence and therefore the trial Court ought to have acquitted the appellants. 7. After hearing the learned counsel and perusing the evidence adduced in the case as also the impugned judgment, this Court feels that the trial Court has not properly appreciated the evidence and the conviction and sentence against the appellants while acquitting other accused persons on the same set of evi¬dence was not just and proper. The order of conviction and sen¬tence having been passed by errors apparent on the face of the record, the same cannot be sustained. 8. The order of conviction and sen¬tence having been passed by errors apparent on the face of the record, the same cannot be sustained. 8. In course of hearing of this Appeal, an affidavit has been filed by appellant No.1 Kalandi stating therein that victim Kalpana has married one Babuli Das of village Bari (Bandhapada) of Jajpur district since 7.12.1989 and having been blessed with three sons and a daughter is leading a happy marital life. 9. Considering the evidence and other materials and taking into consideration the entire scenario of events, the Criminal Appeal is allowed. The conviction and sentence passed against the appellants by the trial Court are set aside and the appellants are acquitted of the charge under Section 366 IPC. They being on bail, their bail-bonds be discharged. Appeal allowed.