Orissa High Court
Abhimanyu Jena vs State Of Odisha on 19 October, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK.
JCRLA No. 22 Of 2019
From judgment and order dated 13.08.2018 passed by the Addl.
Sessions Judge -cum- Special Judge, Angul in Special (POCSO)
Case No. 104 of 2016.
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Abhimanyu Jena ........ Appellant
-Versus-
State of Odisha ........ Respondent
For Appellant: - Mr. Saktidhar Mishra
(Amicus Curiae)
For State : - Mr.Arupananda Das
Addl. Government Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 19.10.2022
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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
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'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. 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
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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
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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. 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.
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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
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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.
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
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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. 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
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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
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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.
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
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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. 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
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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.
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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).
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S.K. Sahoo, J.
Orissa High Court, Cuttack
The 19th October 2022/PKSahoo
