Susil Moharana vs State Of Odisha
2023 Latest Caselaw 9280 Ori

                 IN THE HIGH COURT OF ORISSA, CUTTACK

                                     JCRLA No.31 of 2020

        From the judgment and order dated 02.03.2020 passed by the
        Additional Sessions Judge -cum- Special Court, POCSO, Angul in
        Special (POCSO) Case No.36 of 2014.
                             ---------------------------

               Susil Moharana                          .......                            Appellant


                                                   -Versus-



               State of Odisha                         .......                         Respondent



                      For Appellant:                     -       Mr. Jateswar Nayak
                                                                 Advocate

                    For Respondent:                      -       Mr. S.S. Mohapatra,
                                                                 Addl. Standing Counsel

                                      ----------------------------

        P R E S E N T:


                          THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 16.08.2023

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S.K. SAHOO, J. The appellant Susil Moharana faced trial in the Court

of learned Additional Sessions Judge -cum- Special Court,

POCSO, Angul in Special (POCSO) Case No.36 of 2014 for

offences punishable under sections 341/323/294/324/307/354B/ // 2 //

506/498A of the Indian Penal Code (hereinafter 'the IPC') and

Section 8 of the Protection of Children from Sexual Offences Act,

2012 (hereinafter 'the POCSO Act').

The learned trial Court vide judgment and order

dated 02.03.2020 acquitted the appellant of the charges under

sections 341/294/307/354B of the IPC, however, found him

guilty under sections 323/324/506 Part-II/498A of the IPC read

with section 8 of the POCSO Act and sentenced him to undergo

R.I. for one year for the offence under section 323 of the IPC,

R.I. for two years for the offence under section 324 of the IPC,

R.I. for five years under section 506-II of the IPC and to undergo

R.I. for three years and to pay a fine of Rs.5,000/- (rupees five

thousand), in default, to undergo R.I. for further three months

under section 498-A of the IPC and R.I. for four years and to pay

a fine of Rs.5,000/- (rupees five thousand), in default, to

undergo R.I. for three months under section 8 of the POCSO Act

and all the sentences were directed to run concurrently.

The Prosecution Case:

The prosecution case as per the first information

report (hereinafter 'the F.I.R.') lodged by one Sangita Moharana

(P.W.2) before the I.I.C., Angul Police Station on 15.03.2014

that her marriage was solemnized with the appellant five years

// 3 //

prior to the date of lodging of the F.I.R. and at the time of

marriage, there was a demand of Rs.50,000/- (rupees fifty

thousand) from the bride groom side. The parents of P.W.2 could

not fulfill such demand on account of financial difficulty for which

subsequent to the marriage, the appellant used to torture P.W.2

physically and mentally. Nearly two years prior to the date of

F.I.R., a dowry torture case was instituted by P.W.2 against the

appellant, which was sub-judiced in the learned trial Court. It is

further stated in the F.I.R. that while the appellant was in jail, he

called P.W.2 for amicable settlement and ultimately, he was

released on bail. But after being released on bail, again he

started torturing P.W.2 like he was doing previously. The

appellant was giving threat that unless the dowry demand was

fulfilled, the minor sister of P.W.2 would be raped. On

15.03.2014, in the evening hours, the appellant forcefully took

P.W.2 towards her father's place showing a bhujali and further

threatened to commit rape of P.W.1, the sister of P.W.2. After

reaching at the father's place of P.W.2, the appellant assaulted

P.W.2 on different parts of the body for which she sustained

bleeding injuries. At that juncture, when P.W.1 came to the

rescue of P.W.2, the appellant embarrassed her for the purpose

of committing rape on her. However, at that time, when P.Ws.1

// 4 //

& 2 so also their parents raised hullah, the persons living in the

neighbourhood rushed to the spot and upon seeing them, the

appellant decamped from the spot. P.W.2 fell down on the

ground due to head reeling and while leaving the place, the

appellant threatened the family members of his in-laws. It is

stated in the F.I.R. that Abhaya Behera (P.W.5) and one Sisira

Moharana and others have seen the occurrence.

On the basis of such F.I.R., Angul P.S. Case No.155

dated 15.03.2014 was registered against the appellant under

sections 341/323/324/ 354B/307/294/506/498A of the IPC and

section 8 of the POCSO Act. The I.I.C., Angul Police Station

entrusted P.W.12 Sabita Patra, the Sub-Inspector of Police,

Angul Police Station to take up investigation of the case. During

the course of investigation, P.W.12 examined the informant and

witnesses, sent injury requisition to the Medical Officer, D.H.H.,

Angul, visited the spot, prepared the spot map, seized the H.S.C.

certificate on production by the father of the victim as per

seizure list vide Ext.7 and gave the same in the zima of the

father of the victim, seized one joint photograph and affidavit

under seizure list Ext.3, received the injury reports of both the

victims, i.e., P.W.1 and P.W.2. The statements of the victims

were recorded under section 164 of the Cr.P.C., the dowry

// 5 //

articles were seized from the house of the appellant and it was

given in the zima of P.W.2 as per zimanama Ext.5. On

completion of the investigation, P.W.12 submitted the charge

sheet on 13.05.2014 under sections

341/323/354B/307/294/506/498A of the I.P.C. read with section

4 of the Dowry Prohibition Act, 1961 and section 8 of the POCSO

Act.

Witnesses & Exhibits:

During course of the trial, in order to prove its case,

the prosecution examined as many as thirteen witnesses.

P.W.1 is the victim in this case who has stated that

on the date of occurrence, the appellant came to her house

dragging the informant and demanded Rs.50,000/- (rupees fifty

thousand) as dowry and when her family members did not

agree, the appellant assaulted the informant by means of a

bhujali. When she came to the rescue the informant, the

appellant embarrassed her and attempted to commit rape.

P.W.2 Sangita Moharana, who is the wife of the

appellant, is the informant in this case, who narrated about the

occurrence and supported the prosecution case.

// 6 //

P.W.3, Sailabala Sahu is the mother of the victim

(P.W.1) and the informant (P.W.2) who stated that at the time of

marriage of P.W.2 with the appellant, Rs.50,000/- was

demanded by the appellant, but due to poor financial condition,

she could not fulfill the demand of the appellant and had given

assurance to pay the same later on. For that reason, the

appellant started torturing P.W.2 and assaulted her.

P.W.4 Sarthak Sahu is the father of the informant

(P.W.2) and the victim (P.W.1) who narrated the unfortunate

event that unfolded on the fateful day and he has supported the

prosecution case.

P.W.5 Abhaya Behera stated that once he had seen

the appellant dragging the informant by holding her tuft and

abusing her in filthy languages and threating her to kill her.

P.W.6 Prasanna Mohapatra is a co-villager of the

informant and the appellant and he is a witness to the seizure of

household articles which the informant had brought with her at

the time of her marriage.

P.W.7 Dharanidhar Dehury is the priest of Maa Budhi

Thakurani Temple who stated that he had performed the

// 7 //

marriage of the appellant with the informant (P.W.2) in the said

temple.

P.W.8 Sri Ashok Kumar Moharana was declared

hostile.

P.W.9 Bichitra Mohapatra was working as a labourer

who stated that the occurrence took place in the year 2014 and

the appellant assaulted his wife (P.W.2) for which F.I.R. was

lodged at the police station. He also stated that the police

recovered the dowry articles from the house of the appellant in

his presence and prepared the seizure list vide Ext.9.

P.W.10 Bimala Moharana and P.W.11 Jasoda

Moharana stated to have heard a quarrel between the informant

(P.W.2) and the victim (P.W.1).

P.W.12 Sabita Patra was posted as the Sub Inspector

of Police at the Angul Police Station. She is the Investigating

Officer of this case.

P.W.13 Dr. Anup Kumar Mahalik was posted as

Paediatric Specialist at D.H.H., Angul who examined the

informant (P.W.2) and submitted his report vide Ext.6/3.

The prosecution exhibited thirteen numbers of

documents. Ext.1 is the statement of the victim recorded under

section 164 of the Cr.P.C., Ext.2 is the F.I.R., Ext.3 is the seizure

// 8 //

list of the affidavit relating to marriage, Ext.4 is the zimanama of

the affidavit, Ext.5 is the zimanama of the house hold articles,

Ext.6/3 is the medical report of the victim, Ext.7 is the seizure

list of the original Board Certificate, Ext.8 is the zimanama of

original H.S.C. Certificate, Ext.9 is the seizure list of the

household articles, Ext.10 is the spot map, Ext.11 is the

requisition-cum-injury report, Ext.12 is the requisition for

medical examination of the appellant and Ext.13 is the prayer to

record the statement of the victim under section 164 of the

Cr.P.C.

The defence plea of the appellant is one of complete

denial. No witness was examined on behalf of the defence.

Findings of the Trial Court:

The learned trial Court, after assessing the oral and

documentary evidence on record, has been pleased to hold that

the age of the victim was 17 years 9 months and 27 days as on

the date of occurrence and as such she was a minor. The learned

trial Court further held that in view of the statutory presumption

that has been provided under section 29 of the POCSO Act, when

the commission of offences under sections 3, 5, 7 & 9 are alleged

against a person, the Special Court shall presume that such

person has committed the offences unless the contrary is

// 9 //

proved. The defence has taken some pleas but has not been able

to shatter the statutory presumption. Accordingly, the learned

trial Court acquitted the appellant of the charges under sections

341/294/307/354B of the IPC and found him guilty under the

offences already stated and imposed punishment accordingly.

Contentions of the parties:

Mr. Jateswar Nayak, learned counsel for the

appellant contended that even though the appellant has been

found guilty under section 8 of the POCSO Act and sentenced to

undergo R.I. for a period of four years, however, there is no

clinching evidence on record regarding the date of birth of the

victim. While deposing in the learned trial Court on 05.10.2016

she stated her age to be 20 years. Similarly, he contended,

though it is the prosecution case that original H.S.C. Certificate

was seized by the I.O. and the same was handed over to the

father of P.W.2 but the original certificate was not produced in

the learned trial Court during trial. It is further argued that

basing on the photocopy of the H.S.C. certificate, wherein the

date of birth of the victim has been mentioned to be 18.05.1996,

the Court has come to the conclusion that the victim was 17

years 9 months and 27 days as on the date of occurrence and

she was a minor girl. Learned counsel further argued that though

// 10 //

according to P.W.1 and P.W.2, the weapon of offence was bhujali

and P.W.2 stated that she was assaulted by bhujali by the

appellant for which she sustained cut injuries, but the doctor

(P.W.13) has noticed only two simple injuries on the person of

P.W.2 and further stated that the injuries are possible by hard

and blunt object which falsified the prosecution case that weapon

of assault was bhujali. Learned counsel further submitted that

there is no clinching material to attract the ingredients of the

offence under section 506 Part-II of the IPC. Therefore, he

pleaded that it is a fit case where benefit of doubt should be

extended in favour of the appellant.

Mr. Sidharth Shankar Mohapatra, learned Additional

Standing Counsel appearing for the State, on the other hand,

supported the impugned judgment and contended that the

evidence of P.W.1 is getting corroboration from the evidence of

P.W.2 and there is no delay in lodging the F.I.R. and the medical

evidence also supported the prosecution case. Learned counsel

further submitted that the I.O. (P.W.12) searched for the

weapon of offence but she could not get the same for which the

weapon of offence could not be seized during investigation or

produced during trial. Learned counsel further submitted that the

acts committed by the appellant on his wife (P.W.2) and sister-

// 11 //

in-law (P.W.1) constitute the offences under which he was found

guilty and therefore, there is no scope of interference in the

appeal and it should be dismissed.

From perusal of the trial Court record, it appears that

the appellant was remanded to judicial custody for the first time

on 16.03.2014 and he was released from custody on bail on

11.03.2015. Again, he was taken into judicial custody on

25.08.2015 and released on bail on 27.09.2019. Then, he was

again taken into custody on 06.12.2019 and while he was in

custody, the judgment was pronounced on 02.03.2020 and he

was not granted bail during pendency of the appeal. Further, he

has already undergone the substantive sentence of six years and

three months out of five years of substantive sentence imposed

on him. Even if, the default sentence is taken into account, it

seems that the period has already been undergone by the

appellant.

Age of the victim:

Coming to the age of the victim (P.W.1), there is no

dispute that even though the original H.S.C. certificate was

seized during the course of investigation and it was given in the

zima of the father of P.W.2, but the same was not produced in

the learned trial Court during trial. Only a photocopy of the HSC

// 12 //

certificate of P.W.1 was available on record and merely on that

basis, the learned trial Court has come to the conclusion that the

victim was 17 years 9 months and 27 days at the time of

occurrence and thus, she was a minor.

If the original H.S.C. certificate was seized and given

in the zima of P.W.4 vide Ext.8, it is not known as to why the

Public Prosecutor did not call for the same to prove during trial.

Section 63 of the Indian Evidence Act, inter alia, states that

secondary evidence includes copies made from the original by

mechanical processes which in themselves insure the accuracy of

the copy, and copies compared with such copies. Section 65(a)

of the Evidence Act says that secondary evidence may be given

of the existence, condition or contents of a document when the

original is shown or appears to be in the possession or power of

the person against whom the document is sought to be proved

or of any person out of reach of, or not subject to, the process of

the Court, or of any person legally bound to produce it, and

when, after the notice mentioned in section 66, such person does

not produce it. Section 65(c) provides that when the original has

been destroyed or lost, or when the party offering evidence of its

contents cannot, for any other reason not arising from his own

// 13 //

default or neglect, produce it in reasonable time then the

secondary evidence may be given.

A Constitution Bench of the Hon'ble Supreme Court

in the case Roman Catholic Mission -Vrs.- State of Madras

reported in AIR 1966 Supreme Court 1457 has held that

when original document was not produced before the Court at

any time nor any foundation was laid for the right to give

secondary evidence, in such case, copies of the original

document cannot be taken into consideration.

While discussing the evidentiary value of a secondary

evidence in the form of a photostat copy, the Apex Court in the

case of Ashok Dulichand v. Madahavlal Dube reported in

(1975) 4 Supreme Court Cases 664 has observed the

following:

"14. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any

// 14 //

person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it. Clauses (b) to (g) of section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1.

There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant

// 15 //

further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."

(Emphasis supplied)

In the case in hand, though the original H.S.C.

certificate was available with P.W.4, who has taken the same in

zima, it was not produced and a photocopy thereof was placed

before the Court without assigning any reason as to why the

original copy cannot be produced. Further, there was no

argument to the effect that any situation has arisen for which

production of the original copy can be dispensed with as per

section 65 of the Evidence Act. No foundation has been laid for

leading secondary evidence. Therefore, having due regard for the

aforementioned statutory provisions as well as precedents, I am

// 16 //

of the humble view that photocopies of the H.S.C. certificate of

the victim could not have been taken into account by the learned

trial Court as an evidence, especially when it is proved that the

original certificate was in the possession of P.W.4. Also, in view

of the oral evidence of the victim, it is difficult to say that the

victim (P.W.1) was a child in view of the definition under section

2(d) of the POCSO Act which states that "child" means any

person below the age of eighteen years.

Whether section 8 of the POCSO Act is attracted:

Section 8 of the POCSO Act prescribes punishment

for sexual assault and sexual assault has been defined under

section 7 of the POCSO Act. The overt act which has been

mentioned therein has to be committed by the accused on a

'child' in order to attract the ingredients of the offence and since

the prosecution has failed to establish that the victim (P.W.1)

was a 'child' as on the date of occurrence, in my humble view

the ingredients of the offence under section 8 of the POCSO Act

is not attracted and therefore, the appellant is entitled to be

acquitted of such charge.

// 17 //

Whether section 324 of the I.P.C. is attracted:

So far as offence under section 324 of the I.P.C. is

concerned, the offence would be attracted only if it is caused by

dangerous weapon or means voluntary on a person. No doubt,

P.W.1 and P.W.2 have stated that the weapon which was used

by the appellant for assaulting P.W.2 was bhujali which falls

within the ambit of 'dangerous weapon', but evidence of P.W.2

indicates that the appellant has assaulted her by means of a

bhujali for which she sustained cut injuries on her hand and arm.

It is pertinent to note that in the F.I.R. it was mentioned that the

appellant assaulted by bhujali on the head, left hand, back and

thigh of P.W.2 and caused serious injuries. The doctor (P.W.13)

noticed only two injuries on person of P.W.2, i.e. lacerated injury

of size 1 inch x ¼ inch x ¼ inch present over right parietal

region and abrasion of size ¼ inch x ¼ inch on the back of left

elbow joint. He opined that all the injuries are simple in nature

and might have been caused by hard and blunt object. The

doctor also opined that all the injuries are possible on fall.

Therefore, the evidence of P.W.2 that she was assaulted by a

sharp cutting weapon like bhujali and cut injuries were caused on

her person is being contradicted by the medical evidence

adduced by P.W.13. No question has been put to the doctor

// 18 //

(P.W.13) by the prosecution whether those two injuries are

possible by bhujali if sharp sides were used. In view of the

discrepancies between the ocular evidence of P.W.2 and the

medical evidence adduced by P.W.13 and the medical

examination report which has been marked as Ext.6/3, I am of

the humble view that the prosecution has failed to establish the

charge under section 324 of the I.P.C.

Whether offence under section 506 part II is made out:

Coming to the charge under section 506, part II of

the I.P.C. To attract culpability under this provision, it must be

proved that the threat given by the appellant shall cause death

or grievous hurt or to cause destruction of any property by fire,

or to cause an offence punishable with death or a imprisonment

for life or with imprisonment for a term which may extend to

seven years, or to impute unchastity to a woman. In the case of

Nobel Mohandas -Vrs.- State reported in 1989 (1) Crimes

73, it has been held that to attract the offence under section 506

part II, which is rather a grave offence punishable with

imprisonment which may extend to seven years, the threat

should be a real one and not just a mere word when the person

uttering it does not exactly mean what he says and also when

the person at whom threat is launched does not feel threatened

// 19 //

actually. The threat must be with intention to cause alarm to the

complainant or to cause that person to do or omit to do any

work. Mere expression of any words without any intention to

cause alarm would not be sufficient to attract the gravamen of

the offence under the provision.

Recently, while discussing the condition precedent

for attracting culpability under section 506 of the I.P.C., the

Hon'ble Supreme Court in the case of Mohammad Wajid and

another -Vrs.- State of UP and others reported in (2023)

OnLine Supreme Court Cases 951 held as follows:

"A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant."

Keeping these principles in view, it is found that

P.W.1 only stated that the appellant had come to their house and

dragged P.W.2 and after committing some overt act, he left the

place after threatening. What was exactly stated to by the

appellant is not there in the evidence of P.W.1. P.W.2, stated

that on the date of occurrence, the appellant assaulted her and

told her that he would murder her, then he dragged her to her

// 20 //

father's place and some overt acts have been committed by him

there and when the villagers came to the spot, the appellant left

the place. In other words, evidence of P.W.2 is silent that at her

father's place, any threat was given to her by the appellant.

P.W.3 and P.W.4, the mother and the father of the victim

respectively have stated that the appellant threatened to kill

P.W.2 and to take P.W.1 with him. However, the actual words

stated by P.W.3 and P.W.4 so far as the criminal intimidation

part is concerned is not getting corroboration from P.W.1 and

P.W.2. Therefore, it is difficult to sustain the conviction of the

appellant under section 506-II of the I.P.C.

Coming to the offence under section 498-A of the

I.P.C., from the evidence of the victim (P.W.2) as well as her

parents, P.Ws.3 & 4, it appears that there was a demand of

Rs.50,000/- by the appellant at the time of marriage which could

not be fulfilled on account of poor financial condition for which

the P.W.2 was subjected to torture by the appellant and she was

frequently assaulted. P.W.1 has also corroborated such evidence

and stated about the demand made by the appellant and assault

on P.W.2 by the appellant. For proving an offence under section

498-A of the I.P.C., the prosecution is required to prove that

there was harassment of the woman with a view to coercing her

// 21 //

or any person related to her to meet any unlawful demand for

any property or valuable security or is on account of failure by

her or any person related to her to meet such demand.

In view of the available evidence on record, I am of

the humble view that prosecution has successfully proved the

charges under section 498-A/323 of the IPC against the

appellant. Therefore, while acquitting the appellant of the

charges under sections 324/506 Part II of the I.P.C. so also

section 8 of the PCOSO Act for the reasons already assigned, the

conviction of the appellant under sections 498-A/323 of the

I.P.C. stands confirmed. The punishment imposed by the learned

trial Court for such offences cannot be said to be on the higher

side, which is accordingly confirmed. Since the appellant has

already undergone the sentence imposed under these two

offences, he be set at liberty forthwith if his detention is not

required in any case.

A copy of this order along with a copy of the

judgment shall be communicated to the learned trial Court for

compliance.

The Jail Criminal Appeal is partly allowed.

Before parting with the case, I would like to put on

record my appreciation to Mr. Jateswar Nayak, learned counsel

// 22 //

for the appellant for rendering his valuable help and assistance

towards arriving at the decision above mentioned. The learned

counsel shall be entitled to his professional fees, which is fixed at

Rs.7,500/- (rupees seven thousand five hundred only). This

Court also appreciates the valuable help and assistance provided

by Mr. Sidharth Shankar Mohapatra, learned Additional Standing

Counsel.

.................................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 16th August, 2023/Amit

Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Aug-2023 18:53:23