Orissa High Court
Sudarsan Bag And Another vs State Of Orissa on 3 November, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Revision NO. 672 of 2000
From the judgment and order dated 04.05.1996 of the Assistant
Sessions Judge, Dharamgarh passed in Sessions Case No.9/5 of
1996 confirmed in the judgment and order dated 28.07.2000
passed by the learned Sessions Judge, Kalahandi-Nuapada,
Bhawanipatna in Criminal Appeal No.26 of 1996.
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Sudarsan Bag
and another ......... Petitioners
-Versus-
State of Orissa ......... Opp. Party
For Petitioners: - Mr. Manas Chand
For Opp. party: - Mr. Tusar Kumar Mishra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument and Judgment- 03.11.2016
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S. K. Sahoo, J.The petitioners Sudarsan Bag and Rahasa Bag have preferred this revision petition against the impugned judgment and order dated 04.05.1996 passed by the learned Asst. Sessions Judge, Dharmgarh in S.C. Case No. 9/5 of 1996 in convicting the petitioners under sections 363/34 of the Indian Penal Code and sentencing them to undergo R.I. for two and half 2 years each with fine of Rs.1,500/- each, in default of payment of fine, to undergo further R.I. for one year each. The petitioners preferred an appeal in the Court of Session and it was heard by learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in Criminal Appeal No. 26 of 1996 and vide judgment and order dated 28.07.2000, though the learned Appellate Court upheld the conviction of the petitioner under section 363/34 of the Indian Penal Code but reduced the substantive sentence to R.I. for one year while maintaining the sentence of fine and default sentence passed for such fine.
2. The prosecution case, as per the First Information Report submitted by Anteswa Ketki (P.W.1), who is the father of the victim 'K' is that on 12.10.1995 at about 2.00 p.m. his daughter 'K' who was aged about 15 years had been to the land locally known as Badimunda situated in village Koten carrying meal for her brother namely Narayan Ketki (P.W.3) and after taking meal while P.W.3 was taking rest, the two petitioners who are brothers came there and forcibly took the victim 'K' to their house. Even though the victim tried to escape from the clutches of the petitioners but she could not succeed. Even P.W.3 who was present there attempted to rescue his sister but he was also not successful. P.W.3 immediately returned back home and informed about the incident before his family members and 3 accordingly, the informant along with others proceeded to village Koten and rescued the victim at about 8.00 p.m. from the house of the petitioners and brought her back to the house.
The F.I.R. was presented before Chilguda outpost on 13.10.1995 and accordingly, station diary entry no.204 dated 13.10.1995 was made and the report was sent to the Officer in charge, Junagarh Police station for registration. On the next date i.e. on 14.10.1995 the Officer in charge, Junagarh Police Station on receipt of the report registered Junagarh P.S. Case No.149 dated 14.10.1995 under sections 366/34 of the Indian Penal Code. The Officer in charge directed the A.S.I. of Police namely Kirtan Nayak (P.W.8) to take up investigation of the case and accordingly, P.W.8 took up investigation, examined the informant and other three witnesses who came with the informant to the outpost. He visited the spot, examined the witnesses, arrested both the accused persons and forwarded them to Court. The victim was sent to District Headquarters hospital, Bhawanipatna for ossification test for determination of her age and P.W.8 received the ossification test report vide Ext.2 which shows her age to be above 14 and below 15. On 06.11.1995, the Officer in charge of Junagarh Police Station namely Birendra Kumar Mishra (P.W.9) took over charge of investigation and after completion of investigation, he submitted 4 charge sheet against the petitioners on 6.11.1995 under section 366/34 of the Indian Penal Code.
3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure and it was transferred to the Court of Asst. Sessions Judge, Dharmgarh for trial where the learned Trial Court framed charge under section 366/34 of the Indian Penal Code against the petitioners on 20.03.1996 and since the petitioners refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.
4. During course of trial, in order to establish its case, the prosecution examined nine witnesses.
P.W.1 Anteswa Ketki is the informant in the case and he happens to be the father of the victim 'K' and he stated about the disclosure made by P.W.3 regarding the forcible kidnapping of the victim by the petitioners. He further stated about the rescue of the victim on the same day from the house of the petitioners. He proved the F.I.R. (Ext.1).
P.W.2 is the victim and she stated that the petitioners caught hold of her hands and took her to their house situated at village Koten by force.
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P.W.3 Narayan Ketki is the brother of the victim 'K' and he also stated about the kidnapping of the victim by the petitioners. He further stated to have informed the informant and other family members about the incident and also stated about the rescue of the victim on that day.
P.W.4 Iswar Ketki stated about the rescue of the victim from the house of the petitioners on the date of occurrence.
P.W.5 Dr. Suresh Chandra Padhi was the radiologist attached to District Headquarters Hospital, Bhawanipatna who took the x-ray of the victim and prepared his report Ext.2 and stated that the age of the victim was above 14 years and below 15 years.
P.W.6 Maheswar Pujhari stated about the disclosure made by P.W.3 before him about the kidnapping of the victim and further stated about the rescue of the victim from the house of the petitioners.
P.W.7 Tikeram Hati is a formal witness.
P.W.8 Kirtan Naik was the S.I. of Chilguda Police Outpost who received the F.I.R. and sent it to Officer in charge, Junagarh police station for registration and he investigated the case till 06.11.1995.
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P.W.9 Birendra Kumar Mishra was the Officer in charge of Junagarh police station who took over the charge of the investigation from P.W.8 and on completion of investigation submitted charge sheet.
The prosecution exhibited three documents. Ext.1 is the F.I.R., Ext.2 is the medical examination report prepared by P.W.5 and Ext.3 is the formal F.I.R.
5. The defence plea was one of denial and it was pleaded that due to previous enmity between the family of the petitioners and the accused persons, the victim has been tutored by her father to depose against the petitioners. No witness has been examined on behalf of the defence.
6. The learned Trial Court appreciating the evidence on record held that it is proved by evidence on record beyond reasonable doubt that the victim was aged about 15 years on the date of occurrence. Learned Trial Court further held that the evidence of the victim (P.W.2), her father (P.W.1) and her brother (P.W.3) is clear and unmistakable to the effect that both the petitioners forcibly took away the victim from Badimunda land. The learned Trial Court further held that the evidence on record is clear to the effect that the victim was subsequently found in the house of the petitioners. The learned Trial Court further held that the discrepancies as pointed out by the learned 7 defence counsel are too minor in nature to affect the case of the prosecution in any manner whatsoever. It was further held that the delay in lodging the First Information Report is not at all fatal to the prosecution case. The learned Trial Court further held that in absence of any evidence that the petitioners abducted/kidnapped the victim for any purpose as mentioned in section 366 of the Indian Penal Code, the charge under section 366/34 of the Indian Penal Code is not at all established. The learned Trial Court further held that the act of the petitioners in the facts and circumstances of the case clearly falls within the scope and ambit of the offence punishable under section 363 read with section 34 of the Indian Penal Code.
The learned Appellate Court held that the learned Trial Court has rightly held that there is no evidence under section 366 of the Indian Penal Code and that the petitioners kidnapped the minor girl and there is no infirmity in the order of conviction of the petitioners under section 363/34 of the Indian Penal Code. However, the learned Appellate Court reduced the sentence of two and half years which was imposed by the learned Trial Court to rigorous imprisonment for one year, while upholding the sentence of fine imposed by the learned Trial Court so also the default sentence.
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7. Mr. Manas Chand, learned counsel for the petitioners contended that the victim in her evidence in the first line has stated that she did not know the petitioners but in the next line, she stated that the petitioners forcibly took her to their house at village Koten by catching hold on her hands and therefore, the evidence of the victim is not at all reliable. He further submitted that the occurrence in question stated to have been taken place in the year 1995 and in the meantime more than twenty one years have passed and therefore, in case this Court confirms the order of conviction under section 363/34 of the Indian Penal Code then lenient view should be taken and the sentence be reduced to the period already undergone.
Mr. Tusar Kumar Mishra, learned Addl. Standing Counsel for the State on the other hand submitted that it is the current findings of facts by both the Courts below basing on the evidence of the victim, her brother and other witnesses that it is the petitioners who have committed the offence of kidnapping which is corroborated by the rescue of the victim from the house of the petitioners. He further submitted that the evidence of the doctor is very clear that at the time the occurrence, the victim was aged about 14 to 15 years and therefore, no fault can be found with the impugned judgments. He further submitted that taking into account the nature and gravity of the offence, liberal 9 sentence cannot be imposed and therefore, the impugned judgments and orders of conviction and the sentence passed there under should be confirmed and the revision petition be dismissed.
8. The victim 'K' who has been examined as P.W.2 no doubt has stated in the very first line of her evidence that she did not know the accused persons but thereafter, she has vividly described the specific overt acts committed by each of the petitioners. She has also stated that the petitioner no.1 first caught hold of her both hands and the petitioners kept her in their house at village Koten. The evidence of the victim is corroborated by the evidence of her brother (P.W.3) who has stated that both the petitioners came and caught hold of the hands of the victim and forcibly took her away. P.W.3 further stated that he tried to rescue her sister but failed. The conduct of P.W.3 in rushing back to his house and informing before his father and other family members about the act of kidnapping is admissible as res geste under section 6 of the Evidence Act. Therefore, merely because in the first line, the victim stated that she did not know the accused persons, the evidence of the victim and her brother (P.W.3) cannot be disbelieved. The learned Courts below have rightly held that the victim was rescued from the house of the petitioners which is evident not only from the 10 statement of the victim but also from the statements of her father (P.W.1), P.W.4 and P.W.6. The learned Courts below have also rightly relied upon the statement of the doctor (P.W.5) who was a radiologist in the District Headquarters Hospital, Bhawanipatna and opined that the age of the victim to be above fourteen and below fifteen years. Even though the victim has stated her age to be fifteen years at the time of her deposition, there was no challenge to such evidence. Therefore, I am of the view that both the Courts below have rightly held the victim to be a minor at the time of incident. The victim was rescued during the night on 12/13.10.1995 and the First Information Report was lodged at Chilguda outpost on 13.10.1995 and therefore, there is no delay in lodging of the First Information Report.
In view of the available materials on record and on going through the findings of the Courts below, I am of the view that the Courts below have rightly held the petitioners guilty under sections 363/34 of the Indian Penal Code.
So far as sentence part is concerned, in case of Raj Bala -Vrs.- State of Haryana reported in (2015) 62 Orissa Criminal Reports (SC) 409, it is held as follows:-
"11...........A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has 11 conferred discretion on the Court but the duty of the Court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the Court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in 12 mind that erroneous and fallacious exercise of discretion is perceived by a visible collective."
It appears that the petitioners were young boys at the time of occurrence and they were in custody from 16.10.1995 to 26.10.1995 during investigation of the case. They have not committed any other overt acts with the victim except taking her to their house. In the meantime, more than twenty one years have passed and the victim has already got married at some other place and settled in her life. There are no other criminal antecedents against the petitioners available on record. There is no dispute that undue sympathy to impose inadequate sentence would undermine the public confidence in the efficacy of law and do more harm to the justice delivery system and therefore, it is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. However, in the peculiar facts and circumstances of the case, while upholding the conviction of the petitioners under sections 363/34 of the Indian Penal Code, I am of the view that the sentence of imprisonment should be reduced to the period already undergone. The sentence of fine with default sentence as was imposed by the 13 learned Trial Court and confirmed by the learned Appellate Court remains unaltered.
With the aforesaid modification of sentence, the criminal revision petition stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 3rd November, 2016/Kabita/Sukanta