Orissa High Court
Ramaji Bisi vs State Of Orissa on 4 May, 2017
Author: S.Pujahari
Bench: Satrughana Pujahari
ORISSA HIGH COURT, CUTTACK
CRLA NO. 278 OF 2009
From the judgment and order dated 15.05.2009 passed by Shri P.K.
Ray, Addl. Sessions Judge, Boudh in S.T. No.11 of 2008.
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Ramaji Bisi ......... Appellant
-Versus-
State of Orissa ......... Respondent
For appellant - Mr. J.K. Panda, Advocate.
For respondent - Mr. P. Pattnaik, Additional
Government Advocate
PRESENT:-
THE HON'BLE SHRI JUSTICE SATRUGHANA PUJAHARI
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Date of Judgment : 04.05.2017
S.PUJAHARI, J.In this appeal, the appellant who has been convicted under Sections 341, 506, 376 read with Section 109 of the Indian Penal Code, 1860 (for short "the I.P.C.") and directed to undergo R.I. for 7 years and to pay a fine of Rs.5000/-, in default, to undergo R.I. for a further period of six months, S.I. for 1 year and R.I. for 1 year respectively, calls in question the propriety of the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Boudh in S.T. No.11 of 2008.
2. Facts, briefly stated, are that on 01.05.2007 at around 6 p.m., the victim (P.W.1) accompanied with her friend (P.W.2) had been to Pakhaniapali ridge of village-Sanajhankarpali to 2 answer call of nature. While enroute home after attending such call of nature, it is alleged, the present appellant and his erstwhile co-accused - Sanjib Malik appeared at the scene. While Sanjib Malik forcibly carried away the victim (P.W.1) to a lonely placed after gagging her mouth, the appellant obstructed P.W.2 from raising alarm to attract persons of that vicinity. In course of that, the appellant also threatened P.W.2 not to divulge the matter before anybody else. The victim made effort to shout, but Sanjib Malik threatened her that she would be killed if she shouted for help. Succumbing to the threat, she maintained silence and Sanjib Malik committed rape on her. Thereafter, the victim came weeping and on the way she met P.W.2 and her parents, before whom she divulged as to how she was sexually ravished by Sanjib Mallik. The matter was reported initially at Sagada Police outpost and thereafter the case was registered at Manmunda Police Station vide P.S. Case No.56 dated 02.07.2007. Accordingly, investigation taken up, the victim was sent for medical examination under requisition, wearing apparels of the victim and said Sanjib Mallik were seized. After completing investigation, the I.O. submitted charge-sheet against the present appellant and his former co- accused under Sections 376(2)(g), 341, 506 read with Section 34 of IPC.
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Both the culprits denied the charges in entirety and advanced a plea of false implication. To substantiate the charge against the culprits, the prosecution examined 9 witnesses, out of whom P.W.1 is the victim and P.W.2 is her friend (Gitanjali Sandha). P.Ws.6 and 8 are Medical Officers. P.Ws.3, 4, 5 and 7 are the relatives and neighbours, before whom the victim had divulged the incident and in whose presence articles were seized. P.W.9 is the Investigating Officer. Defence choose not to adduce any evidence.
3. In course of the trial, Sanjib Mallick jumped bail and remained at large. So, his case was split-up on 09.03.2009 and hence the separate judgment of the present appellant.
4. On studied scanning the oral and documentary evidence, discarding the defence plea of denial and accepting the version of the victim and her friend (P.W.2), the learned trial court concluded that the appellant was guilty of the offence under Sections 376 read with 109 of IPC and Sections 341 and 506 of IPC.
5. The learned counsel for the appellant has submitted that there being no iota of material in support of the charge under Sections 341 and 506 of IPC and Section 376 read with Section 109 of IPC, the impugned judgment of conviction and order of sentence are absolutely uncalled for. 4
6. The learned counsel for the State supported the impugned judgment of conviction and order of sentence. The contention of the learned counsel for the State is that there is no reason to discredit the testimony of the victim and her friend who have stood firm in their version and nothing substantial has been elicited in their cross-examination.
7. I have carefully considered the rival contentions raised at the Bar. The learned counsel for the appellant having strenuously contended that there being no iota of evidence in support of charge under Sections 341 and 506 of IPC and Section 376 read with Section 109 of IPC, it is essential at the outset to consider the evidence of the P.Ws.1 and 2 carefully with regard to the charges brought against the appellant. The plain paper F.I.R. (Ext.1) lodged on 02.05.2007 at 2 p.m. by the victim (P.W.1), inter-alia, reveals that while Sanjib Mallick physically lifted the victim and threatened to throttle her if she dare to raise alarm, the present appellant caught hold of P.W.2 by her arm and threatened her to kill if she shouts. This is the accusation of the victim against the present appellant as embodied in the F.I.R. Against this accusation, P.W.1 in her evidence on oath has stated;
"on our way back, both the accused persons came there, accused - Sanjib Mallick physically lifted me and other accused - Ramji Bisi held up my friend - Gitanjali".5
Against such averments of P.W.1, P.W.2 has deposed the following;
"Accused - Ramji detained me and threatened me of dire consequences in case I divulge the same uttering as DING DAHALE DEKHITA KAHIBU JADI TORA BAPA KU KHAYIBU."
This is the sum and substance of evidence brought home to prove the guilt of the appellant. However, the evidence of P.W.2 reveals that notwithstanding such overt act committed by the appellant, she proceeded ahead home and immediately intimated her mother and aunt as to what had happened and all of them rushed back to the spot from where P.W.1 was abducted.
8. This being the nature of the evidence brought on record in support of the charge under Sections 341, 506 and 376 read with Section 109 of IPC, it is essential to ascertain if such evidence is just and adequate to support the finding of guilt.
9. Section 341 of IPC provides punishment for wrongful restraint. Section 339 of IPC defines "wrongful restraint" as;
"S.339. "Wrongful restraint". Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."
Section 39 of IPC defines 'voluntarily' as under;
"S.39. "Voluntarily". A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, 6 at the time of employing those means, he knew or had reason to believe to be likely to cause it."
"Wrongful restraint" means keeping a man out of a place where he wishes to be, and has a right to be. The slightest unlawful obstruction to the liberty of the subject to go, when and where he likes to go, provided he does so in a lawful manner, cannot be justified, and is punishable under this section. The word 'obstruction' or 'restraint' implies a desire to proceed in a certain way. It implies no movement of the body but a desire to cause motion. Before a person can be convicted of an offence of wrongful restraint, the prosecution must prove that the complainant had a right as distinguished from a license to proceed in a particular direction or that he had a right of way.
The offence of "wrongful restraint" and "wrongful confinement"
are offences affecting human body and cannot be said to have been committed if a person is not restrained or confined himself but the liberty of going in the conveyance in which he wishes to go or taking the article which he wishes to carry and without which he is not willing to proceed is denied to him. Obstruction to proceeding in any direction is the gravamen of the definition of the term "wrongful restraint". Under this section, it must be established that the complainant was obstructed from proceeding along a particular direction. The gist of offence of "wrongful restraint" is thus preventing a person from 7 proceeding in any direction in which he has a right to proceed. This section requires voluntary obstruction of a person and obstruction must be such as to prevent that person from proceeding in any direction in which he has a right to proceed. Against this legal scenario when I sifted the evidence of P.Ws.1 and 2, I do not find that P.W.2's movement was obstructed in any manner by the appellant so as to prevent her from proceeding where she wishes to be. The evidence of P.Ws.1 and 2 itself reveals that notwithstanding such threat communicated to her, P.W.2 proceeded to her house without any fear, obstruction or restriction by the appellant. She immediately proceeded and divulged as to what had happened before her parents and other persons and accompanied with all of them she returned to the alleged spot of occurrence. This being the evidence, the charge under Section 341 of IPC must fail.
10. Adverting to the charge under Section 506 of IPC, the evidence of P.W.1 reveals that the appellant "Ramji held up my friend - Gitanjali". P.W.2 has stated "Ramji detained me and threatened me of the dire consequences in case I divulge the same". But, as record reveals, notwithstanding such mere threat P.W.2 proceeded home without any obstruction there being no execution of threat and she divulged before her parents as to what had happened. Section 506 of IPC prescribed 8 punishment for "criminal intimidation" while Section 503 of IPC defines "criminal intimidation which reads thus :-
"S.503. "Criminal intimidation" - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.
Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
The offence of "criminal intimidation" requires that there must be an intent to cause alarm by a threat to him of injury to himself. The intent itself might be complete, though it could not be effected. But, the existence of the intent seems essential to the offence, as also and equally to the attempt to commit the offence. This Section has the following essentials :-
"3. Ingredients.- This section has the following essentials :-
1. Threatening a person with any injury.
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
2. The threat must be with intent
(i) to cause alarm to that person, or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat."
The gist of the offence is the effect which the threat is intended to have upon the mind of the person threatened. Before an 9 offence of "criminal intimidation" can be made out, it must be established that the accused had any intention to cause an alarm to the complainant. Mere threat given by the accused not with an intention to cause alarm to the complainant does not come within the meaning of "criminal intimidation".
11. Reverting to the evidence of P.Ws.1 and 2, the appellant had only given a threat to cause death if she divulged the matter, but did not act in pursuance thereof since he allowed P.W.2 to proceed home without any obstruction whatsoever and in fact P.W.2 without being alarmed by uttering any such word when freely proceeded and divulged before her parents, it is apparent that the appellant had no intention to cause an 'alarm' to the P.W.2. Mere threat given by the appellant not with an intention to cause alarm and when did not deter the P.W.2 from proceeding where she the wishes to be, the scanty evidence of P.Ws.1 and 2 would not constitute an offence of "criminal intimidation".
12. Thus, on careful reappraisal of the evidence of P.Ws.1 and 2, this Court is of the considered opinion that the essential ingredients of offence punishable under Sections 341 and 506 of IPC are conspicuous by their absence in the evidence of P.Ws.1 and 2 and, therefore, on the basis of insufficient and 10 inadequate evidence, an order of conviction under the aforesaid Sections is uncalled for.
13. The next consideration is charge under Section 376 read with Section 109 of IPC. The evidence of P.Ws.1 and 2 unerringly establishes that while P.Ws.1 and 2 are enroute home from the place where they had been to attend call of nature, the appellant and his erstwhile co-accused appeared at the scene like beast where his former co-accused - Sanjib Mallick in an erotic impulse caught hold of the victim (P.W.1), gagged her mouth for preventing her from raising alarm and proceeded towards an isolated place where the appellant by his gesture and posture prevented P.W.2 to shout whereby the appellant facilitated his compatriot to subject the victim of sexual ravishment. P.W.1 in categorically terms has deposed as to how she was ravished. She stood firm and nothing substantial brought on record to discard or disbelieve her evidence that she was subjected to rape by the former co- accused of the appellant which was against her will and without her consent.
14. Section 107 of IPC defines 'abetment' of things which reads as under :-
"S. 107. A person abets the doing of a thing, who
- First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that 11 thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aid, by any act or illegal omission, the doing of that thing.
Explanation 1.- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
As noted, this Section contains the definition of 'abetment' having three clauses, and if an act of a person falls within the meaning of any of them, it would amount to 'abetment'. A person abets the doing of a thing who intentionally aids, by any act or illegal omission the doing of that thing. The scope of the word 'aids' has been defined in Explanation-2. It only explains what is meant by aiding simplicitor. This means that an act which merely amounts to aiding the commission of offence is not 'abetment'. The aiding must snow-ball into "intentionally aiding" the doing of a thing. The commission of the act must be the dominant intention of the person who aids it. Then only it can be said that he "intentionally' aided it. If there is community of interest between the aiding persons and the one who commits the offence, there is possibility to draw the inference that the dominant intention was to aid the doing of that particular act. If the person only knows or has only the reason to believe that his 12 act would facilitate the commission of offence, it cannot be said that his dominant intention was there. Abetment by aiding or instigating necessarily means some active suggestion or support or stimulation to the commission of the offence itself. If the offence had already been complete before anything was done by the alleged abettor, any subsequent action of his which might, in any way, help the main offender, will not be abetment within Section 107, being an accessory after the fact which is no offence under the Indian law.
15. Here, the proved fact revealed that the appellant merely uttered few words but in fact he did not deter the P.W.2 from proceeding in any direction where she wishes to be and in fact P.W.2 proceeded home without any restriction to her movement nor such words uttered caused any alarm to her. That being the nature of the evidence, it is difficult to hold that the dominant intention of the appellant was to facilitate the commission of rape by his former co-accused. Instigation also implies the knowledge of criminality of an act. There is also nothing on record that the appellant by his omission and commission actively stimulated his former companion to commit rape. To constitute 'abetment', an abettor must intentionally commit the crime and there being no such evidence, I would reiterate the appellant cannot be roped by aid of Section 109 of IPC alleging 13 that he had abetted the offence of rape. Even if it is assumed for the moment that the appellant threatened P.W.2 not to shout but that does not amount to, the appellant abetting the rapist to commit the rape on the victim since that is not sufficient to conclude that there was any abetment on his part.
16. Hence, on reappraisal of the evidence on record, this Court is of the opinion that the charge under Section 376 read with Section 109 of IPC also must fail as there is nothing on record to hold that this appellant has abetted the offence of rape, committed by his former co-accused. Therefore, it is held that no substantial material being there in support of the charges under Sections 341, 506, 376 read with Section 109 of IPC, the impugned judgment of conviction and order of sentence against the appellant are indefensible and are liable to be set- aside.
17. For the foregoing reasons, this criminal appeal is allowed and the impugned judgment of conviction and order of sentence are set-aside. Consequently, the appellant is acquitted of the charge. The appellant being already on bail, the bail bonds shall stand cancelled and surety stand discharged.
L.C.R. received be sent back forthwith along with a copy of the Judgment.
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S.Pujahari, J.
Orissa High Court, Cuttack, The 4th day of May, 2017 /MRS 14