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2017 DIGILAW 188 (ORI)

Jairam Bhoi v. State of Orissa

2017-02-21

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. Pujahari, J. This appeal is directed against the judgment of conviction and order of sentence passed by the learned 1st Addl. Sessions Judge, Cuttack in S.T. No.50 of 1992 convicting the appellant (hereinafter referred to as “the accused”) for commission of offence under Section 366 of the Indian Penal Code, 1860 (for short “the IPC”) and sentencing him to undergo R.I. for a period of 3 years and to pay a fine of Rs.500/-, in default, to undergo R.I. for a further period of two months. 2. Adumbrating the fact as unfolded before the trial court is that on 21.01.1991 the accused, a co-villager (P.W.4) aged about 16 years old had induced the victim girl to leave her lawful guardianship, being swayed by the version of the accused, the victim left her lawful guardianship and eloped with the accused, spent a night with him in a nearby betel vine. They shuttle from one place to other and ultimately they reached Cuttack where they sworn an affidavit showing their status as ‘husband’ and ‘wife’. When the victim was found missing, on the report of her father, investigation taken up, the victim was rescued and restored to her lawful guardianship, police took up investigation of the case touching all aspects and on completion thereof placed charge-sheet against the accused for commission of offence under Sections 363 and 366 of IPC. The learned J.M.F.C.(R), Cuttack committed the case to the Court of Sessions. The Court of the learned First Addl. Sessions Judge, Cuttack, however, framed charge under Section 366 of IPC alone against the accused who abjured his guilt and claimed to be tried. Prosecution, therefore, examined 8 witnesses and exhibited similar number of documents. The accused who had taken the plea of denial and false implication, however, did not choose to adduce any defence in his support. 3. On conclusion of the trial, placing reliance on the evidence adduced by the prosecution, particularly the evidence of the victim girl (P.W.4) and the Investigating Officer (P.W.8), the learned trial court returned the judgment of conviction and order of sentence as stated aforesaid. 4. 3. On conclusion of the trial, placing reliance on the evidence adduced by the prosecution, particularly the evidence of the victim girl (P.W.4) and the Investigating Officer (P.W.8), the learned trial court returned the judgment of conviction and order of sentence as stated aforesaid. 4. Assailing the aforesaid judgment of conviction and order of sentence, this criminal appeal has been filed by the accused, inter-alia, on the ground that there was lopsided appreciation of evidence on record as nothing incriminating the fact that the accused had taken the victim girl from her lawful guardianship or induced her to elope with him proved by the prosecution. 5. The learned counsel for the accused submits that since in this case the victim girl had stated that she voluntarily joined the company of the accused and there being nothing on record suggesting the fact that she was induced by the accused to leave her home and no convincing material being there indicating the fact that the victim girl could not have left the company of her lawful guardianship save and except the inducement, conviction under Section 366 of IPC was inept and not legally sustainable. To buttress his stand, the learned counsel places reliance on a decision of this Court in the case of Laxman Mishal vs. The State, (1997) 12 OCR 275, wherein His Lordships have held that “possibility of the victim going away on her own accord with the accused from her lawful guardianship cannot be ruled out.” It is further submitted that there was also no convincing and acceptable evidence that the accused had taken away or induced the victim to leave her parental home and she being in deep love with the accused, the possibility of the victim leaving the lawful guardianship on her own volition cannot be ruled out. Placing reliance on such law laid down in the referred case, it is also submitted that since the ingredients of Section 366 of IPC is conspicuous by its absence in this case, the trial court should not have recorded the judgment of conviction. In such premises, the learned counsel submits to set-aside the impugned judgment of conviction and set the accused at liberty. 6. In such premises, the learned counsel submits to set-aside the impugned judgment of conviction and set the accused at liberty. 6. Per contra, the learned counsel for the State drawing attention of this Court to the evidence of the victim girl who has deposed that she being in love with the accused he persuaded her to leave her lawful guardianship, submits that the evidence writ large that there being inducement given by the accused, for which the victim eloped with him, it cannot be said that the conviction of the accused was unsustainable. 7. I have given my anxious consideration to all such contentions raised, which need careful sifting of the evidence to reach at a just and reasonable conclusion as to whether the victim eloped with the accused without any inducement whatsoever. Tell tale ingredients brought on record reveals that the victim was below 18 years of age and apparently minor who, however, at the relevant period was on the verge of attaining majority. She has developed her sense of discretion to distinguish what is ‘right’ or ‘wrong’. In the aforesaid circumstances, when the victim has fairly admitted that she was in deep love with the accused and on the night of occurrence when she came in their backyard accused persuaded her to elope with him and being swayed she joined with the accused and spent substantial period in his company till she was rescued. Such statement of the victim girl leads to a reasonable and irresistible conclusion that she was in love with the accused and when at that hour of the night she was in her ‘Bari’, her version that she was persuaded by the accused and induced, appears to be a bundle of falsehood created to protect her chastity in the family and before the friends. As the victim girl for a quite long period remained in the company of the accused and made no attempt to escape from his company, moved with him from place to place, sworn an affidavit showing her status as ‘wife’ of the accused till she was rescued by the police, this Court is of the considered opinion that the victim girl who was on the verge of attaining majority voluntarily joined the company of the accused leaving lawful guardianship on her own volition cannot be ruled out altogether. In such premises, when there is no convincing and consistent evidence on record indicating the fact that the accused took active part in inducing his paramour and when tell tale circumstances supports the fact that the victim being on the verge of attaining majority, the charge under Section 366 of IPC cannot be said to have been established beyond all sets of doubt. There is no evidence brought on record that the accused kidnapped/abducted the victim by force of taking out of the lawful guardianship was by any deceitful means. The accused, as record reveals, never intended to misled the victim girl. He has not induced the victim girl to leave her parental home on pretext. The victim moved from one place to another voluntarily and had sworn an affidavit that tool the victim also not deposed about any illicit intercourse. The intention of the accused is the basis and gravamen of offence under Section 366 of IPC. When the victim voluntarily spent several days with the accused and no evidence that she was abducted deceitfully and when such alleged abduction was not with the intent to have sex with the victim, the accused could not be roped by Section 366 of IPC. Where the victim though a minor on the verge of attaining majority voluntarily left her home out of her own free will and also voluntarily stayed with him for several days without any force on her, the accused was neither guilt of kidnapping or abduction. Moreover, when a girl at the time of kidnapping from lawful guardianship possibly intends to cohabit of her own free will, mischief of Section 366 of IPC is not applicable. Concludingly, when the victim left her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party when the latter cannot be considered to have committed the offence as defined in Section 361 of IPC as well. The accused having never laid a foundation by inducement, allurement or threat and when he has not influenced the minor and weighed with her in leaving her guardian’s custody, the conclusion of guilty recorded by the learned trial court is unsustainable in law as well as in fact. This cul-de-sac conclusion emanating from the proved fact is also fortified by the ratio laid down in the case of Laxman Mishal (supra). 8. This cul-de-sac conclusion emanating from the proved fact is also fortified by the ratio laid down in the case of Laxman Mishal (supra). 8. In the premises aforesaid, on reappraisal of the evidence on record in the background of settled law, this Court is of the considered opinion that when there is no convincing and consistent evidence indicating the fact that the accused had intentionally induced the victim on false pretext or forcibly coerced her, the possibility of the victim accompanied the accused on her own volition/accord appears to be highly reasonable and probable. Hence, the conviction of the accused under Section 366 of IPC is unsustainable in fact as well as in law. 9. Therefore, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 12.05.1992 passed by the learned 1st Additional Sessions Judge, Cuttack in Sessions Trial No.50 of 1992 convicting the appellant for commission of offence under Section 366 of IPC and sentencing him to undergo R.I. for a period of three years and to pay a fine of Rs.500/-, in default, to undergo R.I. for a further period of two months, are set-aside. The appellant is acquitted of the said charge. Since the appellant, namely, Jairam Bhoi is in jail custody, he be set at liberty forthwith, if he is not otherwise required to be incarcerated in any other case. L.C.R. received be sent back forthwith along with a copy of this Judgment.