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2016 DIGILAW 650 (ORI)

Ramakanta Jena v. State of Orissa

2016-08-18

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Ramakanta Jena has preferred this criminal revision challenging the impugned judgment and order dated 17.12.1999 passed by the learned Asst. Sessions Judge – cum-Chief Judicial Magistrate, Balasore in S.T. Case No.47/94 of 1999 which was allowed in part by the learned Sessions Judge, Balasore-Bhadrak, Balasore vide impugned judgment and order dated 13.01.2000 in Criminal Appeal No. 86 of 1999. The petitioner was charged under sections 363 and 366 of the Indian Penal Code by the learned Trial Court on the accusation that on 24.02.1998 in the morning at Mouza Sarasankha, Nadigan Gram Panchayat under Soro Police Station, he kidnapped the victim girl “S” who aged about 14 years by enticing her from out of the keeping of the lawful guardianship of her mother and also induced her with intent that she may be compelled to marry against her will. The learned Trial Court found the petitioner guilty of both the offences and accordingly, convicted him under sections 363 and 366 of the Indian Penal Code and sentenced him to undergo R.I. for three years under section 363 of the Indian Penal Code and R.I. for five years and to pay a fine of Rs. 5,000/-(Rupees five thousand), in default, to undergo R.I. for a further period of six months under section 366 of the Indian Penal Code and both the sentences were directed to run concurrently. The appeal preferred by the petitioner before the Court of Session was heard by the learned Sessions Judge, Balasore-Bhadrak, Balasore in Criminal Appeal No. 86 of 1999 and vide impugned judgment and order dated 13.01.2000, though the learned Appellate Court acquitted the petitioner of the charge under section 366 of the Indian Penal Code but upheld conviction of the petitioner under section 363 of the Indian Penal Code and sentence passed by the learned Trial Court. 2. The prosecution case, as per the First Information Report lodged by the victim girl “S” on 20.12.1998, is that the petitioner is the co-villager of the victim and on the pretext of taking her to visit Nandankanan, the petitioner took her to Bhubaneswar and then to Kanpur in Uttar Pradesh by train and that he had conspired to sale the victim to any non-oriya person. Suspecting the movement and behavior of the petitioner, the victim escaped from that place and thereafter, she and her mother went to Soro Police Station and complained against the petitioner. It is further stated in the F.I.R. that unfortunately the Soro Police Station officials though called the petitioner to the Police Station but left him and thereafter, the petitioner started abusing the victim and threatened her with dire consequence as a result of which the victim and her mother were living in a very apprehensive condition. On the basis of such First Information Report, Soro P.S. Case No. 272 of 1998 was registered on 20.12.1998 under sections 363 and 366 of the Indian Penal Code. 3. P.W. 7 Benudhara Pati who was the A.S.I. of Police at Soro Police Station was directed by the officer in charge to take up the investigation. During course of investigation, the investigating officer examined the victim girl and her mother, visited the spot, examined the witnesses and seized the school admission register of Bhajagobinda High School, Sarasankha and left the same in the zima of the headmaster. The school admission register indicated that the victim was admitted in the school on 03.07.1997 and her date of birth mentioned in the register was on 06.06.1984. The petitioner was arrested and produced before the Court on 04.02.1999 and on the very day, on completion of investigation, charge sheet was also submitted under sections 363 and 366 of the Indian Penal Code. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the petitioner under sections 363 and 366 of the Indian Penal Code on 28.09.1999 and since the petitioner refuted the charge, pleaded not guilty and claimed to be tried, the Sessions Trial procedure was resorted to prosecute him and establish his guilt. 5. During course of trial, in order to establish its case, the prosecution examined seven witnesses. P.W.1 Kumari Sasmita Roul is the victim who stated her age to be 15 years at the time of her deposition i.e. 24.11.1999 and she narrated in detail as to how the petitioner persuaded her to visit a Baba at Baliapada and then to visit Nandankanan and then how she was taken to Cuttack by bus from Baranga and from Cuttack to Kanpur by train. She further stated as to how she was confined in the house of the accused after she returned from Kanpur and how she was ultimately rescued when her mother arrived there. P.W.2 Upendra Jena who is a co-villager of the victim did not support the prosecution case for which he was declared hostile. P.W.3 Saraswati Sahu is the mother of the victim and she stated that at the time of occurrence, her daughter was aged about 14 years and she also narrated in detail about the occurrence what P.W.1 disclosed before her. P.W.4 Jhumuri @ Pankajini Behera also did not support the prosecution case and she was declared hostile. P.W.5 Bharat Chandra Barik was the headmaster of Bhajagobinda High School, Sarasankha and he proved the seizure of school admission register (Ext.4) by police under seizure list Ext.3. P.W.6 Basanta Kumar Ghose was the Asst. Teacher of U.G.M.E. School, Sarsankha under Soro Police Station and he is also a witness to the seizure of admission register under seizure list Ext.3. P.W.7 Benudhar Pati was the A.S.I. of Soro Police Station who is the investigating officer in the case. The prosecution exhibited five documents. Ext.1 is the F.I.R., Ext.2 is the notice of Women Commission, Ext.3 is the seizure list, Ext.4 is the school admission register and Ext.5 is the zimanama. 6. The defence plea of the petitioner was one of denial and it was pleaded that the mother of the victim namely Sarawati Sahoo (P.W.3) was keeping her cattle in the cowshed of the petitioner and she used to visit the house of the petitioner. The petitioner refrained her from keeping her cattle in his cowshed and gave one cow to her but she took the cow to her father’s place and when the petitioner could not locate the cow, he presented a First Information Report in the Police Station and then another FIR was presented relating to goat. The defence examined two witnesses. D.W.1 Babula Behera stated about the village meeting which was convened about two years prior to the occurrence where the petitioner protested about the illicit relationship of P.W.3 with one of his relations. D.W.2 Bhaskar Chandra Nayak also stated about such meeting. He further stated that the petitioner had never taken the victim to Nandankanan or to Kanpur. 7. D.W.1 Babula Behera stated about the village meeting which was convened about two years prior to the occurrence where the petitioner protested about the illicit relationship of P.W.3 with one of his relations. D.W.2 Bhaskar Chandra Nayak also stated about such meeting. He further stated that the petitioner had never taken the victim to Nandankanan or to Kanpur. 7. The learned Trial Court on analysis of the evidence on record has been pleased to observe that the victim was just aged about 13 years at the time of occurrence and consequently a minor and the petitioner giving an impression that the victim shall accompany him to visit the Nandankanan along with P.Ws. 2, 4 and others in the village, fixed a trap, segregated others at Baranga and proceeded to Kanpur with an intention to go to Faridabad and the entire travelling from Baranga to Kanpur was not approved either by the victim or her mother. It was further held by the learned Trial Court that the entire episode was enacted by the petitioner for the sole objective of marrying the victim or selling her or for some immoral purposes and accordingly, the learned Trial Court convicted the petitioner under sections 363 and 366 of the Indian Penal Code. The petitioner carried an appeal to the Court of Session and the learned Appellate Court has been pleased to observe that the victim has not stated that the petitioner compelled her or did something knowing that she would be likely to be compelled to marry any person against her will or she may be forced or seduced to illicit intercourse or that the petitioner knew that the victim would be forced or seduced to intercourse. The learned Appellate Court further held that it has not been disclosed by any other witnesses that the petitioner was selling girl children outside the State and therefore, on the basis of sole testimony of the victim, it cannot be concluded that the petitioner was selling girl children outside the State for the purpose as mentioned under section 366 of the Indian Penal Code and therefore, having held that there is no satisfactory material to hold that the petitioner kidnapped P.W.1 to compel her for marriage etc. as enumerated under section 366 of the Indian Penal Code, charge under section 366 of the Indian Penal Code was disbelieved and accordingly, the petitioner was acquitted of such charge. as enumerated under section 366 of the Indian Penal Code, charge under section 366 of the Indian Penal Code was disbelieved and accordingly, the petitioner was acquitted of such charge. So far as the conviction of the petitioner under section 363 of the Indian Penal Code and sentence passed there under is concerned, the impugned judgment and order of the learned Trial Court was upheld by the learned Appellate Court. 8. Mr. Sangram Kumar Das, learned counsel appearing for the petitioner vehemently contended that the real first information report has been suppressed and a concocted version has been presented by the prosecutrix at a much belated stage. He further submitted that there has been inordinate delay in lodging of the F.I.R. and when the entire prosecution case rests upon the testimony of P.W.1 who is the victim in the case and she has exaggerated her version from time to time, no implicit reliance can be placed on her testimony and therefore, the learned courts below have committed illegality in placing of reliance on such testimony as it cannot be said that the evidence of P.W.1 is clear, cogent, trustworthy and above board, the impugned judgment and order of conviction under section 363 of the Indian Penal Code cannot be sustained in the eye of law. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand contended that there is concurrent finding of facts by both the courts below that the petitioner has committed the offence under section 363 of the Indian Penal Code. He further contends that it has been duly proved by the prosecution that the victim was minor at the time of occurrence and the evidence of the victim has not been shaken in the cross examination and therefore, the learned courts below have not committed any illegality in placing reliance on such testimony and therefore, it is not a fit case to interfere with the order of conviction of the petitioner in exercise of the revisional jurisdiction. 9. 9. Considering the submissions made by the respective parties and taking note of the ingredients of the offence under section 363 of the Indian Penal Code, it is clear that in order to attract the ingredients of such offence, the prosecution must prove that there has been kidnapping from the lawful guardianship as has been enumerated under section 361 of the Indian Penal Code and the age of the victim girl was under eighteen years at the time of occurrence. Age of the victim Analyzing the evidence on record relating to the age of the victim, it appears that the victim has stated her age to be 14 years at the time of occurrence i.e. 24.02.1998 and she has further stated that she was born in the year 1984 and at the time of deposition i.e. 24.11.1999, she stated her age to be 15 years. Nothing has been brought out in the cross examination of the victim to challenge her age. The mother of the victim has been examined as P.W.3 on 24.11.1999 and she stated that the victim completed 14 years only two months back and at the time of occurrence, she was a student of Class-VIII in Bhajagobinda High School and at that time her age was only 13 years. A suggestion was given to her in the cross examination that the victim was 20 years at the time of her deposition to which she denied. She has further stated that she admitted her daughter in school in Class-I when she was aged about five years. Therefore, so far as the age of the victim is concerned, the evidence of P.W.3 has also not been shaken. The Headmaster of the School where the victim was prosecuting her study has been examined as P.W.5 who has proved the School Admission Register which was seized under seizure list Ext.3 and the said School Admission Register (Ext.4) at Sl. No. 0024/0074, Folio No. 390156 indicates that the victim was admitted in the School on 03.07.1997 and her date of birth as per the School Admission Register was 6.6.1984. The occurrence in question according to the prosecution took place on 24th February, 1998. No. 0024/0074, Folio No. 390156 indicates that the victim was admitted in the School on 03.07.1997 and her date of birth as per the School Admission Register was 6.6.1984. The occurrence in question according to the prosecution took place on 24th February, 1998. Therefore, in view of the available materials on record, I am of the view that the prosecution has successfully proved that the victim girl was less than 18 years of age as on the date of occurrence which is required to be proved as one of the ingredients of the offence of kidnapping. The learned Trial Court has discussed about the age of the victim and has been pleased to held that the victim at the time of occurrence was just 13 years of age and consequently a minor and the learned Appellate Court has also discussed regarding the age of the victim and in paragraph-14, it was held that from the evidence of P.Ws. 1, 3 and 5 coupled with the admission register (Ext.4), it is crystal clear that the victim (P.W.1) was a minor at the time of occurrence. On going through the evidence of P.Ws. 1, 3 and 5 as well as the School Admission Register (Ext.4), I am also of the view that so far as the age of the victim girl (P.W.1) is concerned, there is no infirmity in the findings of the learned Trial Court as well as Appellate Court that the victim was under the age of 18 years at the time of occurrence. Taking or enticing the victim girl Coming to the other ingredients of the offence under section 363 of the Indian Penal Code, it is the requirement of law that in addition to proving that the victim girl was under the age of 18 years, the prosecution is also required to prove that the petitioner had played a role in taking or enticing the victim girl and keeping her out of her lawful guardianship without the consent of such guardian. The victim being examined as P.W.1 has stated that she was reading in Class-VIII at the relevant point of time and the petitioner was a resident of her village and he persuaded her to accompany him to go to a Baba at ‘Baliapada’ near Baranga Station and also to visit Nandankanan. The victim being examined as P.W.1 has stated that she was reading in Class-VIII at the relevant point of time and the petitioner was a resident of her village and he persuaded her to accompany him to go to a Baba at ‘Baliapada’ near Baranga Station and also to visit Nandankanan. Some other persons also accompanied the petitioner and they went to Baranga for the treatment of the son of the petitioner and when they returned to Baranga railway station, the petitioner told her that he wants to withdraw some money from a bank at Cuttack for the treatment of his son and persuaded her to accompany him for the purpose of identification and accordingly, she accompanied him and the petitioner told others to get down at Cuttack railway station where the petitioner and the victim would join them. The victim had further stated that when they came to Cuttack, the petitioner told her that it was evening and the bank was closed and further informed her that the others must have left the railway station. She further stated that the petitioner booked tickets and told her to go to home and accordingly, they boarded a train and the petitioner asked her to go to sleep and told her that he would awake her at Soro railway station and in that process, she was taken to Kanpur railway station where one old man raised fund and brought train ticket for her and the people present at the railway station sent her and the petitioner back. The petitioner again took her to Bhubaneswar and in the house of the petitioner, she was confined and she was not even allowed to attend her call of nature and she further stated that when her mother came, she narrated the entire incident to her. In the cross examination, the victim has stated that they left the village one day before the Shivratri of the year 1998 and she returned to village three days thereafter and she lodged an F.I.R. two days after coming to the house which was given in writing by her mother. She further stated that one F.I.R. was earlier lodged one or two days after by her mother after she left the village. She stated that no action was taken on her mother’s report and she lodged a report after the intervention by the Collector. She further stated that one F.I.R. was earlier lodged one or two days after by her mother after she left the village. She stated that no action was taken on her mother’s report and she lodged a report after the intervention by the Collector. There is no dispute that the F.I.R. in this case was presented by the victim to the Collector of Balasore District and it was referred to the officer in charge Soro Police Station and accordingly on 20.12.1998 the F.I.R. was registered. At this stage, learned counsel for the petitioner contended that the original F.I.R. has been suppressed and therefore, the prosecution case becomes suspicious. He relied upon a decision of this Court in case of Pradip Giri –Vrs.-State reported in 1994 (Vol.7) Orissa Criminal Reports 114. The mother of the victim who was examined as P.W.3 has stated that officer in charge, Soro Police station accepted her F.I.R. and she also intimated the fact to Mahila Commission as well as the Collector and the petitioner was taken to police station where he was kept for seven days. She further stated that on her report, no case was registered and the petitioner was set free by the police people. She further stated that she has not given any writing to S.P., I.G., D.I.G. for inaction of police and the Collector was intimated in writing about the occurrence after eight months. The Investigating Officer who has been examined as P.W.7 has stated that he cannot say about the receipt of any previous F.I.R relating to the case and he also cannot say about registration of any case in the police station in connection with the occurrence. He further stated that no F.I.R. was lodged at Soro Police Station in connection with the case prior to the receipt of Ext.1. Therefore, there is absolutely no documentary evidence or any oral evidence to corroborate the testimony of P.W.1 and P.W.3 that any F.I.R. was presented prior to the rescue of the victim or presented two days after the victim returned to her house. Though it is stated that the petitioner threatened the victim and her mother but to that effect also no F.I.R. was lodged and no other witness has also stated about the same. Though it is stated that the petitioner threatened the victim and her mother but to that effect also no F.I.R. was lodged and no other witness has also stated about the same. Even though the victim returned home on the fourth day of the occurrence, the F.I.R. was registered on 20.12.1998 which is about ten months after the alleged incident. Therefore, the contentions raised by the learned counsel for the petitioner that the prosecution has not properly explained the inordinate delay in lodging the F.I.R. has got substantial force. Law is well settled that a promptly lodged F.I.R. reflects the firsthand account of what has actually happened and who was responsible for the offence in question. Prompt lodging diminishes the possibility of a coloured version being put up by the informant in the report. The prompt F.I.R. inspires confidence that it was not an outcome of any consultation or deliberation. Delay in lodging the F.I.R. quite often results in embellishment which is a creature of afterthought and because of the delay, the F.I.R. not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of coloured version. Delay in lodging the F.I.R. in sexual offences stands in a different footing in as much as in such a crime, there use to be consultation among the family members and relations whether to approach the police and the Court or not as it concerns the reputation of the prosecutrix and the honour of the family. In this case even though it is the prosecution case that at least two first information reports were presented prior to Ext.1 i.e. one prior to the arrival of the victim in her house and the other one immediately after her arrival but copies of such F.I.R. have not been proved. The statement of the Investigating Officer clearly indicates that about non-lodging of any such F.I.R. Similarly, though it is stated that a report was presented before Mahila Commission but the copy of such report has not been proved in the case. Only one notice has been proved as Ext.2 which indicates that Counselor of the Family Counseling Centre at Sahadevkhunta, Balasore has written a letter on 18.6.1998 to P.W.3 to appear before the Centre on 26.6.1998 at 10.30 a.m. for detail discussion of the case matter. Only one notice has been proved as Ext.2 which indicates that Counselor of the Family Counseling Centre at Sahadevkhunta, Balasore has written a letter on 18.6.1998 to P.W.3 to appear before the Centre on 26.6.1998 at 10.30 a.m. for detail discussion of the case matter. What was the case matter and what was complained before Mahila Commission is shrouded in mystery. It is also not known when P.W.3 approached the family counseling centre and what was her grievance before the Counseling Centre? Therefore, Ext. 2 is not a document which can explain the delay in lodging the F.I.R. Looking at the analysis of the learned Courts below, it appears that though contentions were raised regarding the delay in lodging the F.I.R. but the Courts below have not taken note of relevancy of such submission properly with reference to the facts and circumstances of the case and mechanically rejected the contentions which have caused prejudice to the petitioner. Coming to the evidence of the prosecutrix, who is naturally the star witness on behalf of the prosecution, it appears that in the F.I.R. lodged about eight months after the occurrence, she has simply stated that the petitioner took her to Bhubaneswar and from Bhubaneswar to Kanpur, Uttar Pradesh in an Express train. In her evidence, she has stated that she was taken to Cuttack from Baranga from where both of them boarded a train and got down at Kanpur railway station. The narration of the details of the incident which has been made in her chief examination has been confronted to her in the cross-examination with reference to her previous statement before police and it has been proved through the Investigating Officer (P.W.1) that the victim has not stated regarding getting down from the train at Balasore railway station, regarding her coming to Bhubaneswar in same train, coming to the house of Gayadhar Jena’s brother, about the victim narrating the entire incident to Train Ticket Inspector at Kanpur, going inside a room near the booking counter and an old man of Bhadrak selling plantains at Kanpur helping her in boarding a train to Balasore, about threatening given by the petitioner and his wife in their house to kill her and bury her inside the house and about her forcible dragging by the petitioner. P.W.2 and P.W.4 who accompanied the petitioner and the victim have not stated that the petitioner took the victim to Cuttack for withdrawing money from bank or the petitioner asking them to get down at Cuttack. Law is well settled that conviction can be sustained even basing on the solitary testimony of the witness but the evidence of such witness must be clear, cogent, trustworthy and must inspire confidence and on going through the evidence of the victim, the contradictions pointed out in the cross examination which has been proved by the Investigating Officer, it cannot be said that implicit reliance can be placed on the victim (P.W.1). When the first information reports stated to have been presented at the first instance have been seen the light of the day, the inordinate delay in lodging the F.I.R. has not been satisfactorily explained by the prosecution and the evidence of the victim is full of contradictions, it is very risky to accept such testimony and therefore, I am of the view that the impugned judgment and order of conviction of the petitioner under section 363 of the Indian Penal Code is not sustainable in the eye of law and accordingly, the same is hereby set aside and the petitioner is acquitted of the charge under section 363 of the Indian Penal Code. The petitioner who is on bail is discharged from the liability of his bail bonds. The personal bond and surety bonds stand cancelled. In the result, the revision petition is allowed.