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2016 DIGILAW 854 (ORI)

Radhakrushna Behera v. State of Orissa

2016-09-22

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Radhakrushna Behera faced trial in the Court of learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Mayurbhaj, Baripada in Sessions Trial Case No.29/133 of 1992 for offences punishable under sections 366 and 376 of the Indian Penal Code for kidnapping the victim “AB” on 06.12.1991 at about 8.00 a.m. with intention that she may be compelled to marry against her will and also committed rape on her. The learned Trial Court found the appellant guilty under both the offences and sentenced him to undergo rigorous imprisonment for a term of seven years on each count and to pay a fine of Rs.1000/-on each count, in default, to undergo R.I. for a term of three months on each count and the substantial sentences were directed to run concurrently. The petitioner carried an appeal to the Court of Session which was heard by learned Sessions Judge, Mayurbhanj, Baripada in Criminal Appeal No.153 of 1993. The learned Appellate Court acquitted the appellant under section 376 of the Indian Penal Code but uphold the conviction and sentence passed by the learned Trial Court under section 366 of the Indian Penal Code. 2. The prosecution case, in short, as per the First Information Report (Ext.1) lodged by Bipin Behera (P.W.1), the father of the victim is that the victim was aged about 14 years at the time of occurrence which took place on 06.12.1991 at about 8 a.m. She had been to a homeopathy doctor along with one Smt. Jayanti Behera @ Dukhini Behera (P.W.2). At about 10.00 a.m. the P.W.2 came and informed the informant that while she and the victim were returning after purchasing medicine, the petitioner obstructed them on the way and asked the victim to accompany him. When the victim did not agree, the petitioner threatened him with dire consequences and forcibly took her. After getting such message from P.W.2, the informant and his son immediately went in search of the victim but could not locate her and accordingly returned home. On 09.12.1991 the informant got the message that the petitioner had kept the victim in the house of his brother-in-law Chitaranjan Behera. Immediately the informant went there and reached at the house of Chitaranjan Behera. On 09.12.1991 the informant got the message that the petitioner had kept the victim in the house of his brother-in-law Chitaranjan Behera. Immediately the informant went there and reached at the house of Chitaranjan Behera. At that point of time, Chitaranjan Behera was not in the house but his wife is present and she told that the petitioner had come with the victim in the afternoon on 06.12.1991 and after taking tiffin, they had left. Accordingly, the informant returned back home where he came to know from the villagers that the petitioner had already returned to his house with the victim and had confined the victim. Accordingly, the FIR was lodged before the Officer in Charge of Jharpokharia Police Station, on the basis of which Jharpokharia P.S. Case No. 62 of 1991 was registered under section 366 of the Indian Penal Code against the appellant. 3. P.W.6 Basant Kumar Patra who was the A.S.I. of Police attached to Jharpokharia Police Station took up investigation of the case and during course of investigation, he examined the informant, visited the spot, examined other witnesses and rescued the victim girl from the house of the petitioner. The petitioner and victim were sent for medical examination to the District Headquarters Hospital, Baripada and the petitioner was arrested and forwarded to the Court. P.W.6 examined some more witnesses, seized the In and Out Register of Kalika Lodging of Baripada and released the same in the zima of the owner of the lodge under Zimanama Ext.3. He also seized the school leaving certificate of the victim on 04.01.1992 under seizure list Ext.4 and after completion of investigation, charge sheet was submitted against the petitioner under section 366 of the Indian Penal Code on 17.01.1992. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure and it was transferred to the Court of Assistant Sessions Judge, Mayurbhanj, Baripada for trial where the learned Trial Court charged the petitioner under sections 366 and 376 of the Indian Penal Code on 14.09.1993 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 prove its case, the prosecution examined nine witnesses. 5. During course of trial, in order to prove its case, the prosecution examined nine witnesses. P.W.1 Bipin Behera is the informant in the case and father of the victim. He stated about the information received from P.W.2 regarding kidnapping of the victim by the petitioner. P.W.2 Dukhini Behera stated to have accompanied the victim to bring homeopathy medicine on the date of occurrence and she stated about the overt act committed by the appellant with the victim which she disclosed before the mother of the victim. P.W.3 Dayal Guru Mahanta and P.W.4 Bulu Babu Mahata did not support the prosecution case. P.W.5 is the victim. P.W.6 Basanta Kumar Patra was the A.S.I. attached to Jharpokharia Police Station who is also the Investigating Officer. P.W.7 Dr. Minati Majhi was attached to the District Headquarters Hospital, Baripada who examined the victim on 11.12.1991 and proved her medical report vide Ext.6 P.W.8 Dr. Shankarlal Thakkar was the Radiologist attached to District Headquarters Hospital, Baripada who conducted ossification test of the victim to determine her age and he opined that the age of the victim was fifteen to sixteen and half years and accordingly proved the report Ext.7. P.W.9 Manoranjan Mahanta was the Manager of Kalika Lodge at Baripada and he stated about the seizure of the guest register of the lodge by the police under seizure list Ext.2. The prosecution exhibited eight documents. Ext.1 is the written report, Ext.2 is the seizure list, Ext.3 is the zimanama, Ext.4 is the seizure list, Ext.5 is the school leaving certificate, Ext.6 is the report of P.W.7, Ext.7 is the report of P.W.8 and Ext.8 is the report of Dr. P.C. Praharaj. The prosecution proved one joint photograph as the material object which was marked as M.O.I. 6. The defence plea of the petitioner is one of denial. 7. The learned Trial Court on analysis of the evidence on record came to hold that at best the age of the victim girl can never be more than seventeen years. It was further held that the evidence of P.W.5, the victim is believable. Accordingly, the learned Trial Court held that on careful scrutiny of the evidence brought on record, the irresistible conclusion is that the prosecution has been able to bring home the charge under sections 366 and 376 of the Indian Penal Code against the petitioner beyond all reasonable doubt. Accordingly, the learned Trial Court held that on careful scrutiny of the evidence brought on record, the irresistible conclusion is that the prosecution has been able to bring home the charge under sections 366 and 376 of the Indian Penal Code against the petitioner beyond all reasonable doubt. The learned Appellate Court discussed in paragraph-6 of the judgment about the age of the victim and has been pleased to observe that the victim had crossed 18 years and she was major at the time of occurrence. Learned Appellate Court further held that the facts and circumstances of the case go a long way to show that the petitioner had abducted the victim with intent to compel her to marry him against her will and it was not a voluntary move on her part. The learned Appellate Court mainly relying on the evidence of the doctor which indicates that there was no sign of recent sexual intercourse has been pleased to acquit the petitioner of the charge under section 376 of the Indian Penal Code while upholding the conviction under section 366 of the Indian Penal Code. 8. Learned counsel for the petitioner, Mr. Hemanta Kumar Behera contended that when the learned Appellate Court has held the victim to be major at the time of occurrence and the statement of the victim indicates that she had moved from place to place with the petitioner without raising any hullah or complaining against the petitioner at any point of time though she had ample scope and opportunity, it cannot be said that there was any abduction. The learned counsel further submitted that the victim was a consenting party and she has stayed with the petitioner not only in the relation’s house of the petitioner but also in the Lodge and in the house of the petitioner when she was rescued and therefore, the ingredients of the offence under section 366 of the Indian Penal Code are not attracted. Mr. Mr. Dillip Kumar Mishra, learned Additional Government Advocate on the other hand contended that if the evidence of the victim at the threshold should be taken into consideration, it is apparent that she was kidnapped by force and the learned Appellate Court was not justified in holding that the victim was aged about eighteen years when from the statement her mother, school leaving certificate, it appears that she was fourteen to fifteen years at the time of occurrence. 9. Section 366 of the Indian Penal Code deals with kidnapping, abducting or inducing woman to compel her for marriage to any person against her will or that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. For kidnapping from the lawful guardianship, section 361 of the Indian Penal Code is relevant which indicates that not only the female victim should be under the age of eighteen years but there must be material that she had been taken away or enticed by the accused out of the keeping of the lawful guardianship. The word “take” means to cause to go, to escort or to get into possession. The word “entice” involves an idea of inducement of exciting hope or desire in the other. ‘Abduction’ has been defined under section 362 of the Indian Penal Code which indicates that there must be compulsion by force or any deceitful means for inducing any person to go from any place. Where no force or deceitful means is practised on the person stated to have been abducted, no conviction for abduction shall stand. In other words, if there is consent of the person moved, that to freely and voluntarily then the ingredients of abduction will not be attracted. Kidnapping from lawful guardianship is committed only in respect of a minor or person of unsound mind whereas abduction is in respect of any person. If the girl is eighteen or over and if the boy is sixteen or over, she or he could only be abducted and not kidnapped. If she was under the age of eighteen or the boy was under the age of sixteen, she or he could be kidnapped as well as abducted if the taking was by force or if the inducement was by any deceitful means. 10. If she was under the age of eighteen or the boy was under the age of sixteen, she or he could be kidnapped as well as abducted if the taking was by force or if the inducement was by any deceitful means. 10. In this case, the evidence of the victim who has been examined as P.W.5 is very relevant. In the chief examination, she has stated that while she was returning with P.W.2 after bringing some homeopathy medicine at about 10.00 a.m., the petitioner came from the opposite direction and directed them not to move further and directed P.W.2 to go away so that he can take her. The victim has further stated that she along with P.W.2 and her minor daughter entered into the house of a man and since the petitioner threatened to stab the house owner, he drove her out of his house and then the petitioner forcibly dragged her and dealt a slap on her cheek and threatened P.W.2 with a knife and then took her to different places. However, in the cross-examination, the victim has stated that there are houses of other persons at Manabhanja near the house inside which she entered with P.W.2. She has further stated that though there were some villagers at that place while she was running to the house of a man but she did not tell anything to those persons. The victim further stated that the petitioner was holding her hand at Manabhanja Crossing. She further stated that she along with the petitioner went to Bombay Chhak in a truck by sitting in the cabin where the driver, cleaner and one labourer were present. The victim has further stated that at Bombay Chhak, there were number of shops and they stayed there for about five minutes and then in a car both of them went to Rairangpur and at Rairangpur, the petitioner left her at Nisamani Lodging and went to bring tiffin and there were some more person in that hotel at that time. The victim has further stated that at Bombay Chhak, there were number of shops and they stayed there for about five minutes and then in a car both of them went to Rairangpur and at Rairangpur, the petitioner left her at Nisamani Lodging and went to bring tiffin and there were some more person in that hotel at that time. The victim further stated that she had taken a photograph with the petitioner in a photo studio and she stayed in the sister’s house of the petitioner at Rairangpur for about half an hour and then she came from Rairangpur to Baripada with the petitioner in a bus where she has sitting in the ladies’ seat of the bus along with other ladies and after getting down at Baripada Bus Stand, both of them went to Kalika Lodge. She further stated that while they were staying at Kalika Lodge, the petitioner was going out to bring tiffin and meal for her and at that time she was staying in that Lodge and the Manager and servants of that Lodge were then present in the Lodge. The victim has further stated that at Baripada, the petitioner gave her another saree and she was using vermillion during her stay with the petitioner and that the parents and other family members of the petitioner were present while he took her to his house. It has been confronted to the victim and proved through the Investigating Officer that she has not stated before police that at the time of returning, out of fear she along with P.W.2 returned back to village Manabhanja and entered inside the house of a man but due to threatening made by the petitioner, the said house owner drove them out. The victim has also not stated before the Investigating Officer that the petitioner threatened P.W.2 with a knife due to which P.W.2 fled away and also threatened her to murder in case she does not follow him. The victim has also not stated before police that at Nisamani Lodge of Rairangpur, the petitioner forced her to sleep with him and committed sexual intercourse with her. She has also not stated before police that as per the instruction of the petitioner, she did not disclose the fact to anybody either at Bombay Chhak or in the house of the sister of the petitioner at Rairangpur. She has also not stated before police that as per the instruction of the petitioner, she did not disclose the fact to anybody either at Bombay Chhak or in the house of the sister of the petitioner at Rairangpur. Thus the evidence on record clearly indicates that the victim had got ample opportunity at different places either while moving on the road or in the bus or in the car or staying at the Lodging to complain against the petitioner or to protest against the activities of the petitioner but nowhere she had made any complain or protest. She not only accompanied the petitioner from place to place freely without any hitch but took vermilion on her forehead and went to the photo studio for taking joint photograph with the petitioner. All these circumstances indicate that the victim had not only attended the age of discretion but she was acting freely and there was no compulsion or force on her to move from one place to another. There is also absence of any material on record that any deceitful means or any inducement was given to the victim for moving from one place to the other, which is one of the ingredients of the offence of abduction. In case of State of Karnataka -Vrs.-Sureshbabu Puk Raj Porral reported in AIR 1994 Supreme Court 966, it is held as follows:- “7. Now coming to the evidence of PW 7, she deposed that she went along with the sister of the accused to the bus stand and got into the bus and went to several places and stayed with the accused in lodges and that the accused had intercourse with her. She, however, added that the accused was having intercourse against her will. She was cross-examined at length and we find several omissions in her previous statement. In the cross-examination the defence tried to elicit from her as to what exactly the accused did to her in those places during night. She went on saying that the accused did something to her which he ought not to have done. She admitted that her statement was the same before the police also. The learned Single Judge of the High Court especially pointed out this aspect and observed that it is very difficult to infer that the accused had intercourse with her. She went on saying that the accused did something to her which he ought not to have done. She admitted that her statement was the same before the police also. The learned Single Judge of the High Court especially pointed out this aspect and observed that it is very difficult to infer that the accused had intercourse with her. Therefore in the absence of some other evidence to support the prosecution case that the accused had intercourse with her, in our view, the High Court was not wrong in holding that the offence under Section 376 I.P.C. is not made out. Now, coming to the offence of kidnapping punishable under Section 366 I.P.C., again her age is doubtful. That apart, PW 7's evidence shows that she went with the accused voluntarily. When the age is in doubt, then the question of taking her away from lawful guardianship does not arise. However, the second requirement that taking or enticing away a minor out of the keeping of the lawful guardian is an essential ingredient of the offence of kidnapping. In the instant case, we are not concerned with enticement. But what we have to find out is whether the part played by the accused amounts to taking out of the keeping of the lawful guardian. From the evidence of PW 7, it is clear that she was also anxious to go with the accused to see places. In such a case, it is difficult to hold that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature like inducement.” In case of Shyam –Vrs.-State of Maharashtra reported in AIR 1995 Supreme Court 2169 while dealing with a case under section 366 of the Indian Penal Code, it was held as follows:-“3. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366, I.P.C. would thus fail. Accordingly, the appellants deserve acquittal.” In case of S. Varadarajan –Vrs.-State of Madras reported in AIR 1965 Supreme Court 942 it is held as follows:- “Taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. The charge against the appellants/accused under Section 366, I.P.C. would thus fail. Accordingly, the appellants deserve acquittal.” In case of S. Varadarajan –Vrs.-State of Madras reported in AIR 1965 Supreme Court 942 it is held as follows:- “Taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. xxx xxx xxx xxx But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Register’s Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have “taken” her out of the keeping of her lawful guardianship, that is, the father. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father’s house or even of telling her not to accompany him. There is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361. There is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361. Where the minor leaves her father’s protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father’s protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian’s house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian’s house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 11. Coming to the age of the victim (P.W.5), the doctor conducting ossification test has stated that her age would be fifteen to sixteen and half years. The school leaving certificate vide Ext.5 indicates her age to be 06.05.1977. The father of the victim has stated her age to be fourteen years. Coming to the age of the victim (P.W.5), the doctor conducting ossification test has stated that her age would be fifteen to sixteen and half years. The school leaving certificate vide Ext.5 indicates her age to be 06.05.1977. The father of the victim has stated her age to be fourteen years. The victim on the other hand has stated in her cross-examination that her elder brother was aged about twenty four to twenty five years and she was the third issue of her parents and the second issue was a son who was two years younger to the eldest issue and that she was three years younger to the second issue. If this evidence of the victim is taken into consideration then the age of the victim can be said to be about nineteen years. No doubt in view of the school admission register, the age of the victim was less than eighteen years but when the birth certificate has not been proved and P.W.1 who was the most competent witness to state about the age of the victim has not stated the exact date of birth of the victim and when the statement of the victim indicates that she was nineteen years, no fault can be found with the findings of the learned Appellate Court that the victim was more than eighteen years at the time of occurrence. The finding of the learned Appellate Court that the move of the victim (P.W.5) was not voluntary is negatived by what has been elicited in her cross-examination. The finding of the learned Appellate Court that the move of the victim (P.W.5) was not voluntary is negatived by what has been elicited in her cross-examination. When the prosecution has failed to bring any material on record that there was any force or compulsion or inducement to the victim or any deceitful means was adopted on her by the petitioner to move from one place to another and when the surrounding circumstances indicate that the victim had attended the age of discretion and being sensible and aware of the intention of the petitioner moved with him on her freewill and no where raised any complain or objection against the petitioner, since all these aspects have not been duly considered by the learned Trial Court as well as Appellate Court, I am of the view that accepting the concurrent findings of fact will lead to miscarriage of justice and perversity and therefore, as special and exceptional circumstances and in the interest of justice, I am inclined to hold that the prosecution has utterly failed to establish the ingredients of the offence under section 366 of the Indian Penal Code against the petitioner beyond all reasonable doubt. In the result, the Criminal Revision petition is allowed and the impugned judgments and order of conviction and sentence passed there under is hereby set aside and the petitioner is acquitted of the charge under section 366 of the Indian Penal Code. The petitioner is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.