Orissa High Court
Bagula Naik vs State Of Orissa on 15 January, 1999
Equivalent citations: 1999CRILJ2077
ORDER P.K. Tripathi, J.
1. Accused in Sessions Trial No. 232 of 1992 has filed this revision challenging the order of conviction for the offence Under Section 363, IPC as per the trial court's judgment dt. 22-11-1993 and the confirming judgment of the Sessions Judge, Cuttack in Cri. Appeal No. 145 of 1993 vide judgment dt. 6-7-1994.
2. Prosecution case in short is that Pravasini Samal (P.W. 3) daughter of the informant Rabi Narayan Samal (P.W. 1) and then a student of Class VI on 23-8-1991 was playing after returning from School and when P.W. 1 scolded to discipline her, she ran away from the house. At College Square in Cuttack town, petitioner assured her to take her to her aunt's house, which is situated about 500 metres from his house, took P.W. 3 and confined her in his house. Thereafter under threat he took her to Athgarh and after obtaining signature on some papers brought back her after which Police got custody of P.W. 3, who according to her father (P.W. 1) was aged about 12 years by then. After completion of investigation, charge-sheet for the offence Under Section 366/343, IPC was filed and the petitioner faced the trial.
3. To substantiate the allegations, prosecution examined nine witnesses and relied upon documents vide Exts. 1 to 8. Defence did not adduce any evidence. On assessment of the evidence in record i.e. the evidence of P.W. 1 Rabi Narayan Samal, P.W. 7 who is the Head Mistress of the School and two doctors (P.Ws 6 and 8), trial court found that according to the evidence of P.Ws. 1 and 7, victim girl was aged about 13 years by the date of occurrence and according to the medical report, she was aged about 14 to 15 years. Trial court recorded the finding that even if granting the margin of error than also P.W. 3 was found to be a girl below the age of 18 years and therefore she was a minor and was not free to be taken anywhere without the consent of her guardian. Referring to the evidence of P.W. 3 i.e. victim girl and her father (P.W. 1) trial Court recorded that petitioner had kidnapped her and accordingly convicted the petitioner for the offence Under Section 363, IPC though charge had been framed for the offences Under Sections 366/342, IPC. Petitioner was sentenced to undergo R. I. for one year and to pay a fine of Rs. 300/- and also a compensation of Rs. 5,000/-.
4. While arguing the matter before the learned Sessions Judge, Cuttack as has been noted in paragraph 4 of the impugned judgment, the finding relating to the age of the victim girl was not challenged and that it was argued that there was no evidence worth the name to substantiate the allegation of kidnapping and alternatively it was argued that in the absence of any means rea the conduct of moving together of the petitioner and P.W. 3 may not be constituted as an offence Under Section 363, IPC. Learned Sessions Judge after perusal of the evidence on record and findings recorded by the trial court, rejected such argument, affirmed order of conviction and sentence and dismissed the Crl. Appeal.
5. In this Court, petitioner has challenged the impugned judgment of the trial and the appellate Court and in that connection has challenged the findings both on age of the victim girl and also relating to the findings on the offence of kidnapping. Learned Addl. Standing Counsel appearing for the State advanced argument supporting the findings Of the courts below.
6. At the outset, it need be made clear that findings recorded by the trial Court relating to the age of the victim girl is a finding on fact. As noted above, while challenging the conviction order, petitioner did not challenge that finding before the appellate Court. Therefore, petitioner is not permitted to raise that issue for the first time in this revisional forum. Apart from that oh perusal of the evidence on record, this Court finds that evidence of P.W. 1 relating to the age of the victim (P.W. 3) stands in a better footing than the theoretical opinion expressed by the doctors after the ossification test. Whether or not the report of the doctor is accepted, there is nothing in the evidence to prove that P.W. 3 was a major. On the other hand, evidence on record was sufficient to hold that P.W. 3 was a girl below 18 years of age and she was a minor by the date of occurrence.
7. Second -contention of the petitioner as noted above is twofold. Learned counsel for the petitioner while arguing on this point has contended that P.W. 3 having left her house of her own, petitioner cannot be accused of kidnapping for merely accompanying her to certain places and therefore, his conduct cannot be termed as kidnapping or abduction. In that context, he relied upon the decisions reported in AIR 1965 SC 942 : 1965 (2) Cri LJ 33; S. Vardarajan v. State of Madras; 1979 Cri LJ 1094; Pramod Kumar v. State, 1983 Cri LJ 1819 Lawrence Kanandas v. The State of Maharashtra.
8. In the case of S. Vardarajan (supra) a College going girl on the verge of majority from her side telephoned the accused and thereafter both of them went to the Sub-Registrar's Office for registering marriage agreement; The Apex Court judged totality of the facts and circumstances and held it not to be a case of kidnapping. No such evidence is available in record so far the present, case is concerned that it is at the instance of P.W. 3 that the petitioner took her to his house or to Athgarh. Hence the aforesaid ratio is not applicable to the present case.
In the case of Pramod Kumar (supra) a grown up boy aged about 16 years committing theft of gold ornaments from his house moved away from his town alongwith the accused. Prosecution alleged that said accused was instrumental in kidnapping that boy. From the facts and evidence available in record, it was found that the boy of his own not only left the house, but also accompanied accused and voluntarily stayed with him for a considerable period. Under such circumstance, the Allahabad High Court held that it was not to be a case of kidnapping. Needless to say that the facts of that case is quite distinguishable from the present case.
In the case of Lawrence Kanandas (supra) a School going girl aged about 13 to 14 after attending the examination on the date of kidnapping went away with the accused-petitioner and he was convicted for the offence Under Section 363, IPC. Learned Single Judge of Bombay High Court taking into consideration the evidence suggesting to the fact that it was the girl who had induced the accused to come to her School and to take her to different places and also the other facts and circumstances existing in that regard found the appellant not guilty. Facts and circumstances of the present case is not similar inasmuch as there is no evidence worth the name to make an inference that P.W. 3 ever requested the petitioner to take her away either to his house or to Athgarh. Even the accused has not taken such a stand while cross-examining witnesses or giving his statement Under Section 313, Cr. P.C. Hence, the aforesaid decision of Bombay High Court is of no help to the petitioner.
9. In addition to the aforesaid citation, learned counsel for the petitioner also drew attention of the Court to the evidence of P.W. 3 and argued that an improbable story has been advanced by her. P.W. 3 in her deposition has stated that when she reached near the 'College square' accused enquired from her as to where she was to go and when she told that she wanted to go to her aunt's (Piusi's) house, accused assured her to leave her in her aunt's house and thereafter took and detained her in his house and thereafter took her to Athgarh and also obtained her signatures (Exts. 4 & 4/1). That evidence of P.W. 3 has remained unshaken. Accused has not come forward with any positive case in that respect nor he has brought out anything contrary to prove her as an untruthful witness. The narration of the aforesaid fact by P.W. 3 does not appear to be improbable hence the criticism levelled against that evidence has no leg to stand. Evidence of P.W. 3 itself is sufficient to prove the case against the petitioner. The circumstantial evidence only lend corroboration to the evidence of P.W. 3. Accused has not been able to chatter such evidence in any manner whatsoever. Therefore, in the absence of any illegality or perversity the findings recorded by, the trial Court and confirmed by the appellate Court is not required to be disturbed.
10. Alternative argument of the petitioner that there was no means rea is of no substance simply from the circumstance that he appeared in the Police Station along with the victim girl. That aspect has also been properly considered and rightly rejected by the appellate court. When according to P.W. 3 she is not previously known to the accused and when accused has not stated anything in his defence about any prior acquaintance with P.W. 3, it was neither necessary nor required for the accused to keep P.W. 3 in his custody for several days and thereafter to surrender himself along with the girl before the Police. Under such circumstances, the show of innocency is of no avail.
11. On perusal of the evidence on record and the findings recorded by the Courts below the conviction order being found to be just and proper, there is nothing to interfere with the same and accordingly the Criminal revision is dismissed.