Orissa High Court
Sesadev Behera vs State Of Orissa ....... Opposite Party on 20 June, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.399 of 2011
(In the matter of an application under Section 401 read with Section 397
of the Criminal Procedure Code, 1973)
Sesadev Behera ....... Petitioner
-Versus-
State of Orissa ....... Opposite Party
For the Petitioner : Mr. B.K. Mishra, Advocate
For the Opp. Party : Mr. B.K. Ragada,
Additional Government Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 22.04.2024 :: Date of Judgment: 20.06.2024
S.S. Mishra, J.
1. The present Criminal Revision filed under Sections 401 and 397 of
Cr.P.C. is directed against the judgment and order dated 08.11.2007
passed by the learned Sessions Judge, Phulbani in Criminal Appeal No.56
of 1997, whereby the order of conviction and sentence passed by the
learned Chief Judicial Magistrate-cum-Assistant Sessions Judge,
Phulbani in S.T. No.60/33 of 1997 was confirmed.
2. The petitioner was subjected to prosecution in Phulbani Sadar P.S.
Case No.68 of 1996 registered under Sections 363/366 of the I.P.C.
3. The prosecution case in brief is that on 11.11.1996 at about 11.00
A.M., while the victim-minor girl and another minor girl were collecting
earth in a field at the out-skirt of their village, the petitioner came there.
Asking the victim to go away with him, he forcibly took away the victim.
The victim's father was informed about this incident by his younger
brother. After hearing the information from his brother, the informant, his
brother and villagers searched for the victim but failed in their attempt.
On the basis of such allegation, F.I.R. was lodged at Phulbani
Sadar Police Station on 12.11.1996, which was registered as Phulbani
Sadar P.S. Case No.68 of 1996. During investigation, the I.O. examined
the witnesses, visited the spot, rescued the victim from the house of
Chandramani Behera (accused No.2), i.e. father of the petitioner. Then it
came to light that after kidnapping the victim-minor girl, she was raped
by the petitioner. After completion of investigation, the police submitted
charge-sheet against the petitioner as well as his father (accused no.2)
under Sections 363/366/376/368 of I.P.C. The learned trial Court framed
charges against petitioner under Sections 366/376 of IPC while his father
(accused No.2) was charged under Section 368 of IPC. The petitioner and
his father (accused No.2) were put to trial.
4. To bring home the charges, the prosecution had examined as many
as 11 witnesses and exhibited 14 documents. The plea of defence was that
of complete denial and had taken further plea that the victim was aged
about more than 18 years on the date of occurrence and with her consent
the petitioner had taken her. In proof of their defence, one witness was
examined.
5. The learned trial Court analyzed the entire evidence on record and
found the petitioner not guilty of the offence under Section 376 of I.P.C.
and accused No.2 not guilty for offence under Section 368 of I.P.C. Both
were acquitted from the said charges. However, the learned trial Court
found the petitioner guilty of the offence under Section 366 of I.P.C and
sentenced him to undergo R.I. for four years and to pay a fine of Rs.500/-,
in default of payment of fine to undergo further Rigorous Imprisonment
for one month.
6. The judgment of conviction and order of sentence dated 04.10.1997
passed by the learned Chief Judicial Magistrate-cum-Asst. Sessions
Judge, Phulbani in S.T. No.60/33 of 1997 were called in question by
filing Criminal Appeal No.56 of 1997 before the Court of learned
Sessions Judge, Phulbani, by the petitioner. The learned Appellate Court
vide its judgment and order dated 08.11.2007 dismissed the appeal inter
alia stating as under-
<11. The victim has stated in clear terms that she
spent one night with the Appellant inside a forest
where she was raped for three times. Of course, the
learned lower court has recorded an order of
acquittal so far the offence U/s.376 of the I.P.C. is
concerned. The offence of rape may not be found to
have been established even though there was
sexual intercourse. There is no doubt that the
victim was taken to the forest in order that she
might be seduced to illicit intercourse. Therefore,
the offence U/s.366 I.P.C. is found to have been
established. The offence is punishable with
imprisonment up to 10 years with fine. Learned
Lower Court has sentenced the Appellant to
undergo R.I. for 4 years and fine of Rs.500/-. The
punishment does not appear to be excessive.
12. In the result, the order of conviction and
sentence is found not liable for interference and the
appeal is dismissed.=
7. The petitioner has challenged the judgment/order of conviction and
sentence of both the Courts below in the present Revision Petition.
8. Heard Mr. B.K. Mishra, learned counsel for the petitioner and Mr.
B.K. Ragada, learned Additional Government Advocate for the State.
9. Perused the impugned judgment of conviction and order sentence
passed against the petitioner and meticulously evaluated the evidence on
record.
10. The learned trial Court relying upon the testimonies of the
witnesses, particularly taking into consideration the evidence of both the
doctors, i.e., P.W.1 & P.W.2, came to the conclusion that there was no
injury found on the body and private parts of the victim and as no
spermatozoa either alive or dead was found after examination of the
vaginal fluid, the doctors had opined that there was no sexual assault
committed on the victim. One of the injuries which was found on the
body of the victim was the injury prior to the alleged incident. Therefore,
a clear opinion was given by the doctors that there was no forceful sexual
intercourse committed by the accused. On the strength of the said
evidence, the accused/petitioner was acquitted by the learned Court below
for the offence under Section 376 I.P.C. I find no reasons to discard that
finding.
11. The learned trial Court went on to convict the petitioner for offence
under Section 366 of I.P.C. Although the trial Court had arrived at the
conclusion by analyzing the evidence of all the witnesses to the effect that
the accused had taken the victim to the forest on the date of incident and
stayed with her overnight and thereafter brought her to his house. In the
entire sequence of the event, the victim had willfully accompanied the
accused and participated in the alleged occurrence, however, came to the
conclusion that since the victim girl was less than 18 years, her consent
was of no consequence. Therefore, the trial Court convicted the petitioner
for the offence under Section 366 of I.P.C. The relevant part of the
judgment is worth mentioned, which reads as under:-
<10. Now let us scrutinize the evidence on record
to see how far the prosecution has proved its case
against the accused Sesadev u/s. 366 I.P.C. P.W.9
has stated that the victim left with the accused
Sesadev on the date of occurrence. P.W.10 the
victim has stated that the accused Sesadev took
her by dragging holding her hands to a nearby
bush and she stayed throughout the night in the
company of the accused in the forest. Prior to the
occurrence the accused was in visiting term to the
house of the victim and so also the victim to the
house of the accused Sesadev. They were in
talking terms. They also used to go to the river
bed some times to move. The above facts indicates
that the victim left with the accused Sesadev
according to her sweet will and the accused
Sesadev never took her by dragging holding her
hands. Had the fact that the accused Sesadev
forcibly took the victim by dragging holding her
hands towards the forest without the consent of
the victim, the victim must have raised hulla and
resisted to go. But there is no such evidence.
P.W.10 has not stated that against her will she
went with the accused. When the victim did not
raise any hulla while going with the accused
reasonable belief is that the victim was a
consenting party that means the victim went with
the accused Sesadev according to her desire and
it is not the accused who took her forcibly. I have
held that on the date of occurrence the victim was
under 18 years of age. So on the date of
occurrence the victim had no right to give
consent. When the accused took the victim with
him without the consent of the father of the victim
he commits the offence of kidnapping and when
the accused detained her in the forest throughout
the night for the purpose of illicit intercourse he
has committed the offence punishable u/s. 366
I.P.C. Taking all the above facts into
consideration, I am of the clear opinion that on
the date of occurrence the accused Sesadev
Behera committed an offence punishable u/s. 366
I.P.C. by taking the victim without the consent of
her lawful guardian, her father.=
12. The learned Appellate Court has agreed with the findings of the
learned Court below insofar as the alleged offence under Section 376
I.P.C. is concerned and affirmed the acquittal order vis-à-vis the said
offence. However, by uphelding the conviction and sentence against the
petitioner insofar as the offence under Section 366 I.P.C. is concerned has
held that the victim's age was around 12 years at the time of incident.
Therefore, her consent to accompany the petitioner would not inure to the
benefit of defence. The Appellate Court has relied upon the ossification
test report to arrive at a conclusion that the victim was about 12 years at
the time of incident. The ossification test report was exhibited as Ext.4.
Since the defence had not controverted the said report in vigor to create
doubt, the impeccable evidence brought on record by the prosecution
regarding the age of the victim has been believed by the Appellate Court.
The School certificate placed on record lent further support to the
prosecution case that the victim was a minor. Therefore, the Appellate
Court has maintained the conviction of the petitioner of the offence under
Section 366 of I.P.C.
13. Mr. Mishra, learned counsel for the petitioner has inter alia
contended that Section 366 of I.P.C. provides punishment for offence of
kidnapping or abducting a woman with the intention that she may be
compelled to marry against her will or she may be forced or seduced to
illicit intercourse. In the instant case there is absolutely no evidence that
the petitioner had any intention to marry against her will or she may be
forced or seduced to illicit intercourse. The prosecution has failed to
prove its case for offence under Section 376 of I.P.C., for which the
petitioner has been acquitted. Therefore, there is absolutely no case
against the petitioner that he had any intention or used any force to keep
illicit intercourse to the victim. It is also mentioned here that the term
kidnapping has been defined in Section 359 read with Section 361 of
I.P.C. So far as instant case is concerned, the prosecution has not
advanced a case of kidnapping. On the other hand, the prosecution
attempted to prove the case under Section 366 of I.P.C. against the
petitioner for abducting by use of deceitful means to induce her to go
with the petitioner who had adopted that deceitful inducement with the
intention to force her for illicit intercourse. Therefore, in no stretch of
imagination it can be said that the petitioner had ever committed the
offence under Section 366 of I.P.C., for which the impugned judgments
are illegal and both are liable to be set aside.
I don't agree with the contention raised by the petitioner that on the
face of acquittal of the petitioner for offence under Section 376 I.P.C., the
conviction for offence under Section 366 I.P.C. is not sustainable.
Because the submission is directly in contradiction with the provision
contained under Section 366 of I.P.C.
On glaring facts emanating from the record that the father of the
petitioner who was one of the co-accused in the present case was also
tried for the offence under Section 368 of I.P.C. Since the prosecution
had miserably failed to bring on record any evidence against the father of
the petitioner to the effect that he had wrongly concealed the victim in his
house, the father of the accused was also acquitted. The State did not
appeal against the acquittal.
14. From the aforementioned, it is concurrently and conclusively held
by both the Courts below that the victim girl had indeed gone with the
petitioner by her own volition, there was no sexual assault caused by the
petitioner. However, because of the fact that the victim was less than 12
years of age, the petitioner was convicted for the offence under Section
366 I.P.C., while acquitting him for the offence under Section 376 I.P.C.
15. The evidence insofar as the age of the victim is concerned are un-
impeachable, therefore, cannot be discarded. The fact that the victim had
gone with the petitioner to the jungle in the evening on 12.11.1996 and
was subsequently rescued from the house of the petitioner on 13.11.1996
has not been controverted rather proved beyond reasonable doubt.
Therefore, there is no room for interference with the judgment of the
Courts below insofar as the conviction of the petitioner for the offence
under Section 366 of I.P.C. is concerned.
16. Coming to the quantum of the sentence, I am inclined to interfere
with the impugned order because of the fact that the incident alleged to
have happened in the year 1996 and the trial Court has convicted the
petitioner way back on 04.10.1997 and the Appellate Court upheld the
conviction and sentence by judgment dated 08.11.2007. During the trial
and after the conviction, the petitioner had already undergone about 11
months of substantive sentence. Therefore, I am inclined to modify the
sentence to that of one already undergone by the petitioner. Accordingly,
the judgments of the Courts below convicting the petitioner for the
offence under Section 366 of I.P.C. is upheld and the sentence is
modified to that of the period already undergone by the petitioner.
17. With this observation, the CRLREV is disposed of.
..................
S.S. Mishra
(Judge)
The High Court of Orissa, Cuttack
Dated the 20th June, 2024/ Swarnaprava Dash, Senior Stenographer
Location: High Court of Orissa
