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2022 DIGILAW 515 (ORI)

Abhimanyu Jena v. State of Odisha

2022-10-19

S.K.SAHOO

body2022
JUDGMENT S. K. Sahoo, J. - The appellant Abhimanyu Jena faced trial in the Court of the learned Addl. Sessions Judge -cum- Special Judge, Angul in Special (POCSO) Case No. 104 of 2016 for the offences punishable under sections 363, 354(A)(i)/511 of the Indian Penal Code (hereafter 'I.P.C.') and section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereafter for short 'POCSO Act') on the accusation that on 06.10.2016 at about 5.30 a.m. at village Kusapangi (Mundamala Sahi), he kidnapped the victim (P.W.1), who is a girl aged about twelve years, from the lawful custody of her mother guardian (P.W.2) without her consent and committed sexual assault on her by forcibly dragging her by holding her hands towards the bush and also committed sexual assault on the victim. The learned trial Court vide impugned judgment and order dated 13.08.2018 has been pleased to hold that the prosecution has successfully established the charges and the sentenced the appellant to undergo R.I. for three and half years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo further R.I. for one month for the offence under section 363/511 of the I.P.C., to undergo R.I. for three years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo further R.I. for one month for the offence under section 8 of the POCSO Act and no separate sentence was awarded for the offence under section 354(A)(i) of the I.P.C. in view of section 42 of the POCSO Act and the sentences were directed to run concurrently. 2. 2. The prosecution case as per the first information report (Ext.1) lodged by Pinky Naik (P.W.2) before the Inspector in-charge of Banarpal police station on 06.01.2016, in short, is that on that day in the early morning at about 5 O' clock, she and her daughter (P.W.1), who was aged about twelve years, had been to attend call of nature to the nearby railway line and P.W.1 was attending the call of nature at a distance from P.W.2 and at that point of time, P.W.2 heard the cries of P.W.1 and rushed to that place and found that one unknown person was carrying P.W.1 inside the bush and when that man noticed P.W.2, he left the victim and jumped into the canal and when P.W.2 shouted, the persons, who were present in the nearby locality chased that unknown person and apprehended him, who disclosed his name to be Abhimanyu Jena (appellant). On the basis of such F.I.R., the Inspector in-charge registered Banarpal P.S. Case No.157 dated 06.10.2016 under section 363 of the I.P.C. and section 18 of the POCSO Act and directed P.W.8 Prasanta Kumar Padhiary, S.I. of Police attached to Banarpal police station to take up investigation. P.W.8 made a requisition to the Superintendent of Police, Angul to depute a lady police officer for recording the statement of the victim as no lady police officers are posted in Banarpal police station. During the course of investigation, P.W.8 examined the witnesses, prepared the spot map, arrested the appellant on 06.10.2016 and since the appellant had sustained some injuries, he was sent to C.H.C., Banarpal for medical examination and thereafter, the appellant was forwarded to the Court on 07.10.2016. The victim denied for her medical examination. The I.O. (P.W.8) seized the school admission register where the victim was prosecuting her studies to ascertain about the date of birth of the victim and after seizure of such register, it was handed over in the zima of the Headmaster after execution of zimanama (Ext.5) and thereafter, on completion of investigation, submitted charge sheet against the appellant on 30.11.2016 under sections 363, 376(2)(n) read with section 109 of the I.P.C. and sections 4 and 6 of the POCSO Act. 3. After submission of charge sheet, the learned trial Court framed charges against the appellant on 13.10.2017 for the offences under sections 363, 354(A)(i)/511 of the I.P.C. and section 8 of the POCSO Act. 4. 3. After submission of charge sheet, the learned trial Court framed charges against the appellant on 13.10.2017 for the offences under sections 363, 354(A)(i)/511 of the I.P.C. and section 8 of the POCSO Act. 4. During course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 'KL', who is the victim in the case, in her statement stated that she did not know the appellant though she stated about the incident in detail. She further stated that she could identify the culprit and that the said person was not her co- villager. P.W.2 Pinky Naik is the mother of the victim, who also stated that she did not know the appellant and she stated that on the date of occurrence, while she along with her daughter (P.W.1) had been to the nearby railway line to attend the call of nature, she heard the noise of her daughter and she found that one unknown person was dragging her daughter by holding her hand towards a bush and on hearing the hullah, she along with her husband rushed to the spot. She further stated that on seeing them, the said person fled away leaving her daughter. She further stated that her husband and other persons of the nearby area chased that person and he was caught at village Gotamara Kusajhara and thereafter, he was handed over to the police. P.W.3 Bijaya Kumar Naik, who is the father of the victim stated that he did not know the appellant and though stated in the same line with that of P.W.2, but stated that he did not chase the person concerned as he had no shoes in his foot. P.W.4 Maguni Nayak and P.W.5 Akshya Nayak, who are co-villagers of P.W.3, are post occurrence witnesses. They stated that one child thief while stealing a child was caught hold of by the sahi people and they can identify that person. P.W.6 Sarat Kumar Senapati, who was working as a teacher of the High School where the victim was prosecuting her studies, is a witness to the seizure of school admission register as per seizure list Ext. 2. P.W.7 Gita Tripathy, who was working as in-charge Headmaster of victim's school in Bhogabereni, is a witness to the seizure of school admission register marked as Ext. 3. 2. P.W.7 Gita Tripathy, who was working as in-charge Headmaster of victim's school in Bhogabereni, is a witness to the seizure of school admission register marked as Ext. 3. P.W.8 Prasanta Kumar Padhiary, who was the S.I. of Police attached to Banarpal police station, is the investigating officer of the case. No witness was examined on behalf of the defence. The prosecution exhibited five documents. Ext.1 is the F.I.R., Ext.2 is the seizure list, Ext.3 is the school admission register, Ext.4 is the spot map and Ext.5 is the zimanama. 5. The defence plea of the appellant is one of false implication. 6. The learned trial Court after analyzing the evidence on record came to hold that the victim is a 'child' within the definition of section 2(d) of the POCSO Act. Further, the learned trial Court came to the conclusion that the appellant with ill intention was dragging the victim and on noticing P.Ws. 2 and 3 at the spot, he left the victim and decamped from that place. Further, learned trial Court taking into account the oral evidence adduced by the prosecution coupled with the presumption as provided under sections 29 and 30 of the POCSO Act held that the appellant has committed the alleged act with ill intention and accordingly, held the appellant guilty for the aforesaid offences. 7. Mr. Shaktidhar Mishra, learned counsel appearing for the appellant challenging the impugned judgment and order of conviction contended that neither the victim nor her mother, who were present at the spot, identified the appellant in Court to be the author of the crime. Learned counsel further submitted that the father of the victim being examined as P.W.3 has also not identified the appellant in Court. No other witnesses have stated about the appellant's involvement in the crime though it is stated that the appellant was apprehended by some persons. It is further contended that when there is absence of any test identification parade and there is also no substantive evidence regarding identification of the appellant in Court, it cannot be said that the prosecution has established its case against the appellant and therefore, benefit of doubt should be extended in favour of the appellant. Mr. It is further contended that when there is absence of any test identification parade and there is also no substantive evidence regarding identification of the appellant in Court, it cannot be said that the prosecution has established its case against the appellant and therefore, benefit of doubt should be extended in favour of the appellant. Mr. Arupananda Das, learned Additional Government Advocate for the State on the other hand though fairly submitted that the victim and her mother so also her father have not identified the appellant in Court, but in question No.2, when the learned trial Court specifically asked to the appellant that due to his act, P.W.1 raised hullah and on hearing her hullah, while her parents rushed to the spot, then he (the appellant) left the victim and tried to decamp from the place for which he was chased by P.W.3 and some local people and he was apprehended at a distance of 3 kms. away at village Gotamara Kusajhari and was handed over to police, the appellant answered it in affirmative and stated that out of fear, he was fleeing away. Learned counsel for the State submitted that in view of such admission of the circumstances appearing against the appellant, the prosecution case is proved and therefore, there is no illegality or perversity in the impugned judgment and the appeal should be dismissed. 8. Adverting to the contentions raised by the learned counsel for the respective parties, on perusal of the evidence of P.W.1, it appears that she has stated that the occurrence took place a year back from the date of her deposition. She stated her age to be thirteen years on the date of deposition, which was recorded on 28.11.2017 and further stated that she had been to attend the call of nature and while her mother was going little ahead of her, suddenly a person came from inside a bush and dragged her holding her hand inside the bush and when she raised hullah, her mother so also her father came to the spot and on seeing them that person fled away through the bushy area and she narrated the incident before her parents and they searched for that man, but could not trace him out immediately and subsequently that man was found from village Gotamara Kusajhari. The victim specifically stated that she could identify that man and he was not his co-villager. The victim specifically stated that she could identify that man and he was not his co-villager. Needless to say that on the date of recording of the evidence of the victim in Court, the appellant, who was in judicial custody, was produced and present in the dock, but the victim stated that she did not know the appellant. The evidence of the mother of the victim was also recorded on 28.11.2017 and she also stated that she did not know the appellant though she corroborated the evidence of the victim. P.W.3, the father of the victim, stated to have rushed to the spot on hearing the hullah of his daughter and chased the person, who was allegedly dragging the victim, but he stated that since he had no shoes, he could not chase him. He was also asked to identify the appellant in the dock, but he also stated that he did not know the appellant standing in the dock. Therefore, there is no substantive evidence regarding identification of the appellant in Court. It is not in dispute that no test identification parade has also been conducted in the case. Thus, the evidence of the other witnesses, who stated to have caught hold of the appellant in village Gotamara Kusajhari becomes irrelevant in view of the non-identification of the appellant during trial by the witnesses like the victim (P.W.1) and her mother (P.W.2).Coming to the question no.2 put to the appellant in the accused statement, law is well settled that examination of an accused under section 313 of Cr.P.C. is for the purpose of enabling him to explain any circumstance appearing in evidence against him. It is not a mere formality. The questions put and the answers given have great use and the purpose of examination is to bring the substance of accusation to the notice of the accused and it is based on the fundamental principle of fairness. The defective examination of the accused causing prejudice to him, is an illegality. The omission of question regarding incriminating circumstances, which has caused prejudice, is not curable. Law is well settled that the questions which may put to the accused should not be long, complicated and involved and confusing. Where such questions are put to him, he is not likely to understand them and give proper answers, resulting in prejudice to his case. The omission of question regarding incriminating circumstances, which has caused prejudice, is not curable. Law is well settled that the questions which may put to the accused should not be long, complicated and involved and confusing. Where such questions are put to him, he is not likely to understand them and give proper answers, resulting in prejudice to his case. Fairness requires that each material circumstance should be put simply and separately in a way that even an illiterate mind or one which is perturbed and confused may readily appreciate and understand. The questions should be put intelligently and not merely as a matter of form. It is not sufficient compliance to string together a long series of facts or ask the accused what he has to say about them. He must be questioned separately in each material substance, which is intended to be used against him. In my humble view, the question no.2, which has been put to the appellant is long, complicated and confusing one and it contains so many things like raising hullah by P.W.1, parents of P.W.1 coming to the spot, the appellant decamping from the place, chasing by P.W.3 and other local persons to the appellant, his apprehension at a distance of about 3 kms. away from their village at village Gotamara Kusajhari and also handing over the appellant to the police. Even though the appellant stated that out of fear, he was fleeing away, but in my humble view, when there is no substantive piece of evidence in Court regarding identification of the appellant, the answer given by him cannot be held to be sufficient to prove the charges. Accordingly, the impugned judgment and the order of conviction of the appellant is hereby set aside. He is acquitted of the charges under sections 363, 354(A)(i)/511 of the I.P.C. and section 8 of the POCSO Act. He be set at liberty forthwith, if his detention is not required in any other case. 9. The JCRLA is accordingly allowed. Trial Court's record with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Mr. Shaktidhar Mishra, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. Trial Court's record with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Mr. Shaktidhar Mishra, the learned Amicus Curiae 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.7,500/- (rupees seven thousand five hundred only).