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2018 DIGILAW 431 (ORI)

PRANABANDHU PRADHAN @ JABDU v. STATE OF ORISSA

2018-04-19

S.K.SAHOO

body2018
JUDGMENT : S.K. SAHOO, J. 1. The appellant Mahendra Kumar Mishra in Criminal Appeal No. 59 of 2008 and appellants Pranabandhu Pradhan @ Jabdu and Balaram Rout in JCRLA No. 36 of 2008 faced trial in the Court of learned Addl Sessions Judge, Bargarh in S.T. Case No. 148/26 of 2002 for offence punishable under Sections 366 of the Indian Penal Code on the accusation that on 16/17.01.2000 night at village Jamutpali, they kidnapped the victim with intention that she might be compelled to sexual intercourse or knowing that she is likely to be seduced to illicit intercourse. They were also charged for the offence punishable under Section 3(1)(xii) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter "SC & ST (POA) Act"). The appellant Mahendra Kumar Mishra was additionally charged under Section 376 of the Indian Penal Code on the accusation of committing rape on the victim The appellants Pranabandhu Pradhan and Balaram Rout were additionally charged under Section 120-B of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 22.11.2007 acquitted the appellants of the charge under Section 3(1)(xii) of the SC & ST (POA) Act and also the appellants Pranabandhu Pradhan and Balaram Rout of the charge under Section 120-B of the Indian Penal Code. The appellant Mahendra Kumar Mishra was however found guilty under Sections 366 and 376 of the Indian Penal Code and appellants Pranabandhu Pradhan @ Jabdu and Balaram Rout were found guilty under Sections 366/34 of the Indian Penal Code. The appellant Mahendra Kumar Mishra was sentenced to undergo rigorous imprisonment for seven years under Section 376 of the Indian Penal Code and all the appellants were sentenced to undergo rigorous imprisonment for three years for the offence under Section 366 of the Indian Penal Code and the substantive sentences of imprisonment was directed to run concurrently. 2. The prosecution case, as per the first information report (Ext.8) lodged by one Falguni Bariha (P.W.1) before the officer in charge of Gaisilat police station. Bargarh on 17.01.2001 is that in the intervening night of 12/13.01.2001 after taking dinner, the informant and her daughter (hereafter "the victim") aged about fifteen years were sleeping inside their house. In the midnight when the informant got up from her sleep, she found that the victim was not present in the house. Bargarh on 17.01.2001 is that in the intervening night of 12/13.01.2001 after taking dinner, the informant and her daughter (hereafter "the victim") aged about fifteen years were sleeping inside their house. In the midnight when the informant got up from her sleep, she found that the victim was not present in the house. In spite of frantic search, the informant could not locate the victim and accordingly, she lodged a report at Gaisilat police station. Subsequently she came to know that the appellant Mahendra had kidnapped the victim and took her to Raipur and since the date of occurrence, the said appellant was not available in his house. It is further stated in the first information report that on the occurrence day in the morning, the appellant Mahendra had come to the house of the informant and was talking with the victim. It is further stated in the first information report that the informant and the victim belonged to Scheduled Tribe community and the appellant Mahendra was Brahmin by caste. P.W 11 Bhikari Charan Das reduced the oral account of the informant (P.W 1) into writing and read over and explained the contents of the report to the informant and finding it to be correct, the informant put her left thumb impression on it and then the written report was presented before P W.14 Ashok Kumar Das, officer in charge of Gaisilat police station. On the basis of such written report, Gaisilat P.S. Case No. 05 of 2001 was registered on 17.01.2001 under Section 366 of the Indian Penal Code and Section 3 of the SC & ST (POA) Act against the appellant Mahendra. P.W. 14 took up investigation of the case. He examined the informant and proceeded to the house of the victim and prepared the spot map (Ext.9). He examined other witnesses. Subsequently he got information from a constable attached to Gudiari police station, Raipur, Chhattisgarh about the detention of the appellants and the victim at the police station. P.W. 14 proceeded to Gudiari police station and found the appellants were detained at Gudiari police station and the victim was detained at the Mahila police station, Raipur. P.W. 14 examined the victim and the appellants, seized the wearing apparels of the victim under seizure list Ext.1. He also seized the wearing apparels of appellant Mahendra under seizure list Ext.2. P.W. 14 proceeded to Gudiari police station and found the appellants were detained at Gudiari police station and the victim was detained at the Mahila police station, Raipur. P.W. 14 examined the victim and the appellants, seized the wearing apparels of the victim under seizure list Ext.1. He also seized the wearing apparels of appellant Mahendra under seizure list Ext.2. He arrested all the appellants on 21.01.2001, sent the victim girl and the appellant Mahendra to S.D Hospital. Padampur for medical examination. The appellants were forwarded to Court on 22.01.2001. The statement of the victim girl was recorded under Section 164 Cr.P.C., 1973 by the learned SDJM., Padampur. P.W.14 seized the admission register of Panchayat High School, Jamutpali, school leaving certificate of Jamutpali U.P School where the victim was prosecuting her studies on production by the Headmaster of the Panchayat High School, Jamutpali as per seizure list Ext.3. From the school admission register, it was ascertained that the date of birth of the victim was 07.05.1986 and therefore, the age of the victim was fourteen years eight months and ten days at the time of occurrence P.W. 14 received the medical examination report of the victim so also that of the appellant Mahendra He sent requisition to the R.I., Gaisilat to provide the caste certificate of the victim and the appellants and accordingly received the same. On 01.05.2001 Sri K.C. Mohanty, S.D.P.O. Padampur took over charge of investigation of the case, re-examined the victim and the other witnesses and on completion of investigation, he submitted charge sheet on 17.05.2001 under Sections 366/376/120-B of the Indian Penal Code and Section 3(1)(xii) of the SC & ST (POA) Act. 3. 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 appellants as aforesaid on 15.03.2004 and since the appellants refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. 4. During course of trial, the prosecution examined as many as fifteen witnesses:- P.W 1 Falgum Bariha is the mother of the victim and she is the informant in the case. 4. During course of trial, the prosecution examined as many as fifteen witnesses:- P.W 1 Falgum Bariha is the mother of the victim and she is the informant in the case. She stated about the missing of the victim from the house and also recovery of the victim from Raipur from the custody of appellant Mahendra She further stated that the victim was aged about fourteen years when the appellant Mahendra took her. P.W.2 Malati Bariha is the aunt of the victim who stated that she had seen the appellant Mahendra coming to the house of the victim and talking with her. P.W.3 Jasoda Bariha is the elder sister of the victim and she stated that after coming to know from her mother that the victim was missing, she along with others searched for the victim. P W.4 Joseph Dip was the Gramarakhi attached to Gaisilat police station and he is a witness to the seizure of the wearing apparels of the victim as well as of the appellant Mahendra under seizure list Ext 1 and Ext.2 respectively. PW 5 Narayan Bag was the peon in Panchayat High School. Jamutpali who stated about the seizure of school admission register is per seizure list Ext 3. PW6 Prafulla Dandgana was the Headmaster of Panchayat High School Jamutpali and he stated about the seizure of school admission register and school leaving certificate of Jamutpali U.P School by the police. He took the register and certificate in his zima as pe zimanama Ext 4. P.W.7 Dr. Subarna Chandra Panda was the Medical Officer attached to Padampur Hospital and he examined the appellant Mahendra on police requisition and found that there was no sign of recent sexual intercourse and accordingly he submitted his report Ext 5. P.W 8 Dr. Sabita Bohidar was the Assistant Surgeon. S.D Hospital, Padampur who or police requisition examined the victim and opined after perusing the x-ray plates of different bones that the victim was aged about seventeen years and there was no sign of recent sexual intercourse or any injury in the private part She proved her report Ext 6. P.W.9 is the victim and she stated about the occurrence in detail She further stated about the seizure of her wearing apparels by police as per seizure list Ext 1 She stated that her age was fourteen to fifteen years when she was taken to Raipur. P.W.9 is the victim and she stated about the occurrence in detail She further stated about the seizure of her wearing apparels by police as per seizure list Ext 1 She stated that her age was fourteen to fifteen years when she was taken to Raipur. P.W. 10 Benudhar Debta was the R.I, Gaisilat who submitted the caste certificate of the victim girl as well as the appellants and according to him the victim belonged to Scheduled Caste and he proved his report Ext 7. P.W. 11 Bhikari Charan Das is the scribe of the first information report. P.W. 12 Gouri Sankar Pradhan accompanied the investigating officer to Raipur in search of the victim girl and found the victim in the Mahila police station where the victim disclosed about the occurrence. P.W. 13 Bihari Kumbhar was the Gramarakhi attached to Gaisilat police station and he stated about the seizure of the wearing apparels of the victim by the officer in charge as per seizure list Ext.1. P.W. 14 Ashok Kumar Das was the officer in charge of Gaisilat police station who is the investigating officer. P.W 15 Manaranjan Pradhan was the teacher in Jamutpali High School and he proved the school admission register and stated that the date of birth of the victim was 07.05.1986 as per the school admission register. The prosecution exhibited eleven documents. Exts. 1 and 2 are the seizure lists of the wearing apparels of the victim as well as of the appellant Mahendra respectively, Ext. 3 is the seizure list of admission register of Panchayat High School, Jamutpali and school leaving certificate of Upper Primary School, Jamutpali, Ext. 4 is the zimanama of those documents seized under Ext.3, Ext.5 is the medical examination report of appellant Mahendra. Ext.6 is the medical examination report of the victim, Ext.7 is the report of the R.I , Ext 8 is the F.I.R., Ext.9 is the spot map, Ext 10 is the school admission register and Ext. 11 is transfer certificate. 5. The defence plea of the appellants was one of denial. It was suggested to the victim that she was 19 years of age when she went with appellant Mahendra to Raipur and persuaded him to marry her by writing letter and with consent, she had sexual intercourse with the appellant. The victim denied such suggestion. 6. 5. The defence plea of the appellants was one of denial. It was suggested to the victim that she was 19 years of age when she went with appellant Mahendra to Raipur and persuaded him to marry her by writing letter and with consent, she had sexual intercourse with the appellant. The victim denied such suggestion. 6. The learned Trial Court after analyzing the evidence on record has been pleased to hold that on the cumulative assessment of physical examination of the victim given in report Ext.6 and the result of the ossification test, P.W.8 observed that the victim was more than fourteen years and less than seventeen years of age at the time of her examination. It was further held that on the face of the oral evidence of P.W. 1 and P.W.9 juxtaposed with the documentary evidence like Ext.6, Ext.10 and Ext.11/1, the inevitable conclusion as to the age of the victim being less than sixteen years is highly probable in the given scenario. It was further held that from the evidence of P.W. 1, the mother of the victim girl, it is evident that the victim girl was fourteen years who at the material time was a student of Class-VIII. The learned Trial Court further held that the age of the victim is proved to be below eighteen years, even below sixteen years. While acquitting the accused persons of the charge under Section 3(1)(xii) of the SC & ST (POA) Act and the appellants Pranabadhu Pradhan @ Jabdu and Balaram Rout of the charge under Section 120-B of the Indian Penal Code, the learned Trial Court found the charge under Section 366 of the Indian Penal Code has been proved against all the appellants and charge under Section 376 of the Indian Penal Code has been proved against appellant Mahendra and accordingly, convicted them for such offences and sentenced accordingly. 7. Since nobody appeared on behalf of the appellants in Jail Criminal Appeal No. 36 of 2008, Mr. Debasish Pattnaik, learned counsel who is appearing for the appellant Mahendra Kumar Mishra in CRLA No. 59 of 2008 was engaged as amicus curiae for those two appellants in Jail Criminal Appeal No. 36 of 2008. 7. Since nobody appeared on behalf of the appellants in Jail Criminal Appeal No. 36 of 2008, Mr. Debasish Pattnaik, learned counsel who is appearing for the appellant Mahendra Kumar Mishra in CRLA No. 59 of 2008 was engaged as amicus curiae for those two appellants in Jail Criminal Appeal No. 36 of 2008. He placed the judgment, statement of the victim and the other witnesses and contended that there was no clinching material available on record before the learned Trial Court to come to a finding that the victim was below sixteen years of age at the time of alleged incident. It is further contended that in the accused statement, relevant questions have not been put which has resulted in causing serious miscarriage of justice and the appellants have been deprived of explaining the circumstances which were appearing against them. He further submitted that the ingredients of the offences are not proved and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. Mr. Chita Ranjan Swain, learned Addl. Standing Counsel for the State on the other hand supported the impugned judgment and submitted that from the documentary evidence, medical evidence and oral evidence, the prosecution has successfully proved that at the time of occurrence, the victim was below sixteen years of age and nothing has been elicited in the cross-examination of the witnesses to disbelieve the age aspect. He further contended that the manner in which the crime appears to have been committed from the evidence of the victim is clear and trustworthy and the learned Trial Court has rightly convicted the appellants under Section 366 of the Indian Penal Code and also the appellant Mahendra Kumar Mishra under Section 376 of the Indian Penal Code and therefore, the appeals should be dismissed. 8. Coming to the evidence appearing against the appellants Pranabandhu Pradhan @ Jabdu and Balaram Rout in JCRLA No. 36 of 2008 who have been found guilty under Section 366 read with Section 34 of the Indian Penal Code, the victim's evidence indicates that it is the appellant Mahendra who gave a letter to her stating that he would marry her and on 12.01.2001 which was a Friday, he told her that he would wait outside the house at 12 midnight. The victim has also stated that the appellant Mahendra belonged to her village and his house is situated one kilometer away from her house and she had also given a letter to appellant Mahendra and there was exchange of letter between them prior to going to Raipur. The victim further stated that when she came out of the house at about midnight, her mother and sister were sleeping in the house and when she came to the backyard of the house, she saw the accused persons standing near the backyard and then she brought her clothes and money from the house and then she along with the accused persons came to Diptipur by walking and then they got into a bus at Diptipur and came to Bargarh and then from Bargarh, they went to Raipur and at Raipur, they searched for a rented house and in the rented house, she stayed with the appellant Mahendra under one roof whereas the appellants Pranabandhu Pradhan @ Jabdu and Balaram Rout stayed in another room and they also prepared food together and took meals. P.W. 1 the mother of the victim has stated that when the police recovered her daughter from the custody of appellant Mahendra, on her query, the victim intimated her that appellant Mahendra had taken her (Bhuleikari). P.W 2 has stated that prior to the occurrence, she had seen the appellant Mahendra coming to the house of the victim and talking with her The F I R. was lodged only against appellant Mahendra. Therefore, the cumulative evidence of the victim as well as other witnesses is that it is appellant Mahendra who played a vital role in the occurrence. Fie not only wrote a letter to the victim expressing his desire to marry her but also he told the victim on the occurrence day that he would be waiting outside the house in the 12.00 midnight. Fie took the victim with him from place to place and stayed with the victim in one room which was taken on rent at Raipur. The victim also disclosed before her mother that the appellant Mahendra had taken her. Fie took the victim with him from place to place and stayed with the victim in one room which was taken on rent at Raipur. The victim also disclosed before her mother that the appellant Mahendra had taken her. In view of the available materials on record, merely because the appellants Pranabandhu Pradhan @ Jabdu and Balaram Rout accompanied the victim and Mahendra as per the evidence of the victim from place to place, it cannot be said that they played any specific role in the kidnapping of the victim. It seems that the appellant Mahendra and the victim had interaction between them and a decision has been taken among them that the victim would leave her lawful guardianship during the midnight and accompany the appellant Mahendra. The appellants Pranabandhu Pradhan @ Jabdu and Balaram Rout have not played any role when the decision was taken. They have not applied any force or any kind of inducement to the victim to leave her lawful guardianship. Even while they were moving together, the victim has not alleged anything against the two appellants. Merely because the appellants accompanied appellant Mahendra and the victim to Raipur and stayed with them in a different room, in absence of any specific overt act. I am of the humble view that the ingredients of the offence under Section 366 of the Indian Penal Code are not attracted against them. Therefore, the conviction of the appellants Pranabandhu Pradhan @ Jabdu and Balaram Rout for the offence under Section 366 of the Indian Penal Code is not sustainable in the eye of law. Accordingly, the JCRLA No. 36 of 2008 is allowed. The judgment and order of conviction of the appellants 'Pranabandhu Pradhan @ Jabdu and Balaram Rout under Section 366 read with Section 34 of the Indian Penal Code and the sentence passed thereunder is hereby set aside and the appellants are acquitted of the charge. 9. Coming to the materials available on record against appellant Mahendra Kumar Mishra, so far as the age aspect of the victim is concerned, in the first information report, P.W. 1 has mentioned that the victim was fifteen years of age. 9. Coming to the materials available on record against appellant Mahendra Kumar Mishra, so far as the age aspect of the victim is concerned, in the first information report, P.W. 1 has mentioned that the victim was fifteen years of age. In her evidence, P.W 1 has stated that the victim was fourteen years of age P.W 3 who is the elder sister of the victim has stated that she married four years back and at the time of her marriage, she was twenty years. She further stated that the victim was six years younger to her. Therefore, as per the evidence of P.W.3, the victim's age was eighteen years at the time when P.W.3 deposed in Court and if the occurrence has taken place three years prior to the date of deposition of P.W.3, then at the time of occurrence the victim was aged about fifteen years. The victim being examined as P.W.9 has stated that she was fourteen to fifteen years when she was taken to Raipur In the cross-examination, she has stated that she was fifteen years of old when the occurrence is took place and she was reading in Class-X. Suggestion has been given to the victim that she was nineteen years of the age when she went with the appellant Mahendra to Raipur but the victim has denied such suggestion. No other oral evidence has, been adduced by the prosecution relating to the age of the victim. A question has been put to the appellant Mahendra Kumar Mishra in the accused statement that the victim was fifteen years old in January 2001 and the appellant has replied that the age might be sixteen to seventeen years. Now coming to the documentary evidence, it appears that P.W.5 has stated about the seizure of school admission register of Panchayat High School, Jamutpali so also P.W. 6 who was the Head Master of the said school. P.W. 15 was a teacher of the School and he has proved the school Admission Register as well as Transfer Certificate of the victim The investigating officer (P.W. 14) has stated that from the admission register, it was ascertained that the date of birth of the victim was 07.05.1986 and therefore, the age of the victim as per the school admission register on the date of occurrence was 14 years 8 months and 10 days. P.W. 15 has also stated that the victim after obtaining transfer certificate from Jamutpali U.G.M.E. School was admitted in Class-VI 11 on 14.07.1998 at Jamutpali Govt. High School and he further stated that the date of birth as per Ext. 10 and Ext. 11 was 07.05.1986. Therefore, from the school documents, it appears that the date of birth of the victim was 07.05.1986 and as such, she was lesser than sixteen years of age at the time of occurrence Nothing has been elicited in the cross-examination of any of the witnesses who stated about the seizure of the school documents to show that the entry of date of birth in the school admission register was wrong. Therefore, not only the oral evidence but also the documentary evidence relating to the school indicates that the victim was below sixteen years at the time of occurrence. Now coming to the evidence of the doctor (P.W.8), she stated that the age determination of the victim has been done by x-ray examination of bones which indicates that the age was seventeen years at the time of her examination. The learned Trial Court after analyzing the oral evidence, the documentary evidence of the school as well as medical evidence which was adduced by P.W. 8 has come to a finding that the victim was less than sixteen years of age at the time of occurrence. Coming to the accused statement of the appellant Mahendra, it appears that even though in a case of this nature, the age of the victim is a relevant factor and the learned Trial Court has assessed the age of the victim to be below sixteen years basing on the oral evidence of the victim and her family member documentary evidence seized from the school as well as from the medical evidence but no specific questions relating to any of such evidence have been put to the appellant Mahendra in the accused statement. The only question relating to the age that has been put in the accused statement is as follows:- "Q.3. She was fifteen years old as on January 2001" The reply given by the appellant that he cannot say but the age may be to sixteen to seventeen years. The object of section 313 of Cr.P.C, 1973 is to establish a direct dialogue between the Court and the accused. She was fifteen years old as on January 2001" The reply given by the appellant that he cannot say but the age may be to sixteen to seventeen years. The object of section 313 of Cr.P.C, 1973 is to establish a direct dialogue between the Court and the accused. The examination of the accused under section 313 of Cr.P.C., 1973 is not a mere formality. The questions put and the answers given have great use. The accused must be given opportunity to explain each and every circumstance appearing in evidence against him. It is obligatory part of the accused while being examined under section 313 of Cr.P.C., 1973 to furnish some explanation with respect to the incriminating circumstances associated with him and the Court must take note of such explanation. It is mandatory for the trial Judge to put to the accused, facing trial every such piece of evidence, which appears incriminating against the accused and reply of the accused shall be sought thereto The accused may or may not avail the opportunity for offering his explanation. Where the circumstance appearing in evidence against the accused is not put to him in the examination under section 313 of Cr P.C., 1973 the same cannot be used against him. In this case, when all the aspects relating to the age of the victim which have come during evidence have not been put to the appellant by the learned Trial Court in the accused statement and a mere question as stated above has been put in question No. 3, I am of the view that the appellant Mahendra has been deprived of explaining the circumstances against him and thereby serious prejudice has been caused to him. Therefore, such evidence adduced by the prosecution either oral or documentary relating to the age of the victim cannot be used against the appellant. The contention of the learned counsel for the appellants that there has been serious miscarriage of justice by recording the accused statement in a formal manner appears to have sufficient force. Therefore, such evidence adduced by the prosecution either oral or documentary relating to the age of the victim cannot be used against the appellant. The contention of the learned counsel for the appellants that there has been serious miscarriage of justice by recording the accused statement in a formal manner appears to have sufficient force. The conviction of the appellant Mahendra is based holding the victim to be below sixteen years of age at the time of occurrence In absence of the utilization of oral and documentary evidence adduced by the prosecution relating to the age of the victim against the appellant for the reasons stated above, it can be said that the basic ingredient of the offences under which the appellant has been convicted has not been proved. The victim seems to have attended the age of discretion and she accompanied the appellant Mahendra from place to place without raising any objection at any point of time. She even stayed inside a room with the appellant at Raipur and there also she did not object to the sexual intercourse with the appellant and did not come out of the room when there was an attempt. She stated that she could have come out of the room if she wanted it but she could not come as the appellant assured her for marriage. The doctor who examined the victim also found no sign of recent sexual intercourse though one old healed rupture of hymen was found There was absence of any injury in her private part and absence of spermatozoa in the microscopic examination of vaginal swab. Thus the cumulative effect of all these evidence go to show that the prosecution has failed to prove the required ingredients of the offences under Sections 366 and 376 of the Indian Penal Code against the appellant Mahendra beyond all reasonable doubt. In view of the foregoing discussions, I am of the view that the appellant Mahendra Kumar Mishra is also entitled to benefit of doubt. Accordingly the CRLA No. 59 of 2008 is allowed. The Judgment and order of conviction of the appellant Mahendra Kumar Mishra under Section 366 and Section 376 of the Indian Penal Code and the sentence passed thereunder is hereby set aside and the appellant is acquitted of all the charges. 10. Before parting with the case, I would like to put on record my appreciation to Mr. The Judgment and order of conviction of the appellant Mahendra Kumar Mishra under Section 366 and Section 376 of the Indian Penal Code and the sentence passed thereunder is hereby set aside and the appellant is acquitted of all the charges. 10. Before parting with the case, I would like to put on record my appreciation to Mr. Debasish Pattnaik, the learned Amicus Curiae in JCRLA No. 36 of 2008 for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs. 5000/- (rupees five thousand only).