Orissa High Court
Bana @ Brahmand @ vs State Of Orissa on 6 February, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.857 of 2023
(An appeal U/S.374 of the Code of Criminal Procedure,
1973 against the judgment passed by Shri Bandana
Kar, Additional Sessions Judge, Dharamgarh in
Sessions Case No.26/18/43 of 2007-11 arising out of
Junagarh PS Case No.125 of 2005, of the Court of
SDJM, Dharamgarh).
Bana @ Brahmand @ ... Appellant
Brahmanand Bag
-versus-
State of Orissa ... Respondent
For Appellant : Ms. C. Kashturi, Advocate
For Respondent : Mr. S.K. Rout, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:06.02.2025(ORAL)
G. Satapathy, J.
1. This criminal appeal is directed against the
impugned judgment dated 22.06.2023 passed by the
learned Additional Sessions Judge, Dharamgarh in
Sessions Case No.26/18/43 of 2007-11 convicting the
appellant for commission of offences punishable
U/Ss.328/366/376 of IPC and sentencing him to
undergo Rigorous Imprisonment (RI) for ten years with
payment of fine of Rs.20,000/-, in default whereof, to
undergo RI for further one year for offence U/S.376(1)
of IPC; to undergo RI for seven years with payment of
fine of Rs.20,000/-, in default whereof, to undergo RI
for further one year for offence U/S.366 of IPC; and to
undergo RI for seven years with payment of fine of
Rs.20,000/-, in default whereof to undergo RI for
further one year for offence U/S.328 of IPC with
stipulation of running of sentence concurrently.
2. The short prosecution case is that on
30.09.2005 at 8.00 PM the daughter of the informant
(hereinafter referred to as "the victim") went missing
from his house, but the informant came to know
subsequently that the convict along with two others had
kidnapped the victim and had kept her in village
Mukundapur. On this incident, the informant lodged an
FIR on 02.10.2005 before the OIC, Junagarh PS, which
came to be registered as Junagarh PS Case No.125 of
2005 for commission of offences punishable
U/Ss.363/34 of IPC. Accordingly, the matter was
investigated into and ultimately the convict and two
others were being found to have kept confined the
victim in the village Mukundapur after committing rape
upon her by administering some stupefying substance
and lifting away to a jungle, the IO submitted charge-
sheet against them for commission of offences
punishable U/Ss.328/376(g)/364-A/34 of IPC.
Accordingly, the present convict and two
others after their case being committed to the learned
Court of Sessions have stood their trial, when the
learned trial Court after going through the materials on
record upon hearing the parties & finding prima facie
materials to presume the convict and two other
accused persons to have committed the crime framed
the charge against them for commission of offences
punishable U/Ss.328/366/364-A /34 of IPC and
376(2)(g) of the IPC.
3. In support of the charge, the prosecution
examined altogether 8 witnesses vide PWs.1 to 8 and
proved 16 documents under Exts.1 to 16 as against no
evidence whatsoever by the defence, but in the course
of trial, the plea of the convict was denial simplicitor
and false implication.
4. After analyzing the evidence on record
upon hearing the learned counsel for the parties, the
learned trial Court finding sufficient evidence against
the appellant convicted him for commission of offence
punishable U/Ss.328/366/376(1) of IPC and sentenced
him to the punishment indicated supra. Being aggrieved
with the judgment of conviction and order of sentence,
the convict has preferred this appeal.
5. In the course of hearing of the appeal, Ms.
C. Kashturi, learned counsel for the appellant by filing a
memo, which is taken on record, informs the Court that
the convict does not want to challenge his conviction,
but seeks leniency in the punishment and, accordingly,
Ms. Kashturi submits that since the appellant has
already been detained in custody for more than
seventeen years which is much excess to the
substantive sentence as well as the default sentence
and although he has been detained in custody for
undergoing the default sentence after his apprehension
on NBWA, the demands of leniency in this case matures
into clemency requiring the convict to be released
immediately from custody forthwith in the
circumstance. Accordingly, Ms. Kasturi prays to
modify/alter the sentence of the appellant to the period
already undergone and give benefit of set off.
5.1. On the other hand, Mr. S.K. Rout, learned
Additional Public Prosecutor, however, does not dispute
about the convict undergoing more than substantive
sentence and default sentence even calculated
together, but he, however, informs the Court that the
convict having been apprehended subsequently after
the judgment on the strength of an NBWA is directed to
undergo the default sentence and, thereby, his release
from custody forthwith would be considered as applying
misplaced sympathy on him. Accordingly, Mr. Rout
prays to dismiss the appeal.
6. After having considered the rival
submissions upon going through the evidence on record
together with the impugned judgment, this Court finds
that the victim in this case has described the incident in
evidence vividly by testifying in the Court that on the
day of occurrence at about 8 PM while she had gone to
the nearby field to attend call of nature, all the three
accused persons came behind her and made her to
inhale some stupefying substance for which she
became lazy and they took her to a commander jeep
and carried her in that jeep. The evidence of victim
further transpires that all the accused persons including
the convict had taken the victim to a place inside a
forest and the present convict committed rape upon her
and, he thereafter, made her to inhale some stupefying
drugs for which she lost her sense. It is her further
evidence that on the following day morning on a
Saturday, she regained her sense and cried as well as
requested the convict to release her, but the convict
warned her not to shout and cry by giving threatening
to kill her. The victim was in fact put to grueling cross-
examination by the defence, but nothing substantial
was elicited from her mouth to discredit her evidence.
Further, in a case of this nature, the evidence of the
victim is paramount consideration and deserves well
acceptance, unless the same is tainted, unbelievable
and suspicious. On a careful scrutiny of the evidence of
victim, nothing was found to disbelieve the occurrence.
Further, the cross-examination of the victim by the
defence reveals that the convict had committed rape
upper her. The father of the victim has also tendered
evidence supporting the case of missing of her
daughter and rescue from the clutches of the convict.
The aforesaid substantive evidence available against
the convict has never been contradicted nor demolished
and, thereby, the occurrence having well proved by the
prosecution in the standard of scale beyond all
reasonable doubt, the learned trial Court has not
committed any illegality in convicting the appellant for
commission of offence punishable U/Ss.328/366/376 of
IPC. However, Ms. Kashturi, learned counsel for the
appellant has wisely not challenged the conviction of
the appellant, but she, however, has pleaded for
leniency in the sentence.
7. In order to address the issue of clemency
to the appellant for extending leniency in sentencing as
advanced, it appears to the Court that the convict had
already been in custody w.e.f. 04.10.2005 to
23.09.2022 and, thereby, the convict had been in
custody for seventeen years and thereafter, for
suffering the default sentence, but it is also not
disputed that on the date fixed for judgment on
22.06.2023, the convict was not present and absent on
repeated call forcing the learned trial Court to issue
NBWA and, thereby, the learned trial Court could not
pronounce the judgment on the date fixed for it,
however, the presence of the convict was secured on
11.07.2023 by way of an NBWA issued against him and
the said judgment was pronounced and the convict was
heard on the question of sentence and, accordingly, the
learned trial Court sentenced the convict to different
punishments for the offences proved against him by
awarding substantive sentences and fine with default
sentences.
8. Be that as it may, even if we add the
default sentences together with the substantive
sentences which have been directed to run
concurrently, the period of custody of the convict would
be more than that the sentences and, therefore, taking
into consideration the aforesaid fact and the offence
being committed around twenty years back, this Court
considers that the convict deserves some leniency in
sentence. In the fitness of circumstance and by taking
into the long incarceration period of the convict as an
under trial prisoner as well as convict suffering for
default sentences and the judgment having been
pronounced after seventeen years custody of the
convict as stated in the judgment, it would be just and
proper, if some clemency is extended to the convict.
Accordingly, the default sentences of one year for non-
payment of fine for commission of each of the offences
U/Ss.328/366/376 of IPC as awarded to the convict, be
cumulatively considered and to have the period already
undergone, the convict-appellant is hereby directed to
undergo Rigorous Imprisonment (RI) for 10 years and
to pay fine of Rs.5,000/-, in default whereof, to
undergo RI for a further period of six months for
offence U/S.376(1) of IPC; to undergo RI for 7 years
and to pay fine of Rs.5,000/-; in default whereof to
undergo RI for a further period of six months for
offence U/S.366 of IPC; and to undergo RI for 7 years
and to pay fine of Rs.5,000/-; in default whereof to
undergo RI for a further period of six months for
offence U/S.328 of IPC. At the same time, it is clarified
that the convict is entitled to the benefit of set off for
his pre-trial detention against the substantive
sentences which have been directed to run
concurrently.
9. In the result, the appeal stands dismissed
on contest, but in the circumstance, there is no order
as to costs. Ergo, the conviction of the appellant is
maintained, but the sentences of the appellant are
hereby modified to the extent indicated above.
Since the appellant is in jail custody,
warrant of release on appeal in Form No.(M)78 of GR &
CO, (Criminal) Vol-II be immediately sent to the
Officer-in-charge of the concerned jail through e-mail
or any other faster communication mode in view of the
Rule 155 of the GR & CO, (Criminal) Vol-I.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 6th day of February, 2025/Subhasmita
Location: High Court of Orissa
