Orissa High Court
Santosh Kumar Sahu vs State Of Orissa on 23 December, 2015
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL NO. 507 OF 2011
From the judgment and order dated 08.08.2011 passed by the
Additional Sessions Judge-cum-Special Judge, Nuapada in S.A.
Case No.11 of 2010.
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Santosh Kumar Sahu .......... Appellant
-Versus-
State of Orissa ........... Respondent
For Appellant - Mr. Bijaya Kumar Behera(1)
For Respondent - Mr. Sangram Keshari Nayak
Addl. Government Advocate
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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-23.12.2015 Date of Judgment-23.12.2015
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S.K.SAHOO, J.It is rightly said that love is blind. Love can be foolish also. Sometimes the selection goes wrong and the consequence is endless suffering. This case is the story of a young girl who falls in love with a married man. Leaves her house, leaves her parents. Elopes with her paramour holding fast to dreams. Dreams crumble to dust. Realization comes very soon to her. Her 2 lover's love was not true love. She repents and yells in pain, "I will never have an affair with a married man again."
The appellant Santosh Kumar Sahu was initially charged for offence punishable under section 363 of Indian Penal Code in the Court of learned Additional Sessions Judge -cum- Special Judge, Nuapada in S.A. Case No.11 of 2010 for kidnapping S.S. (hereafter 'the victim'), a minor girl aged about 17 years on 19.11.2009 night at village Moharadihi from the lawful guardianship of her mother Soneibai Bewa. He was further charged under section 3(1)(xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter "SC and ST (PA) Act") on the ground that not being a member of Scheduled Caste and Scheduled Tribe, he forced/ caused the victim, a member of Scheduled Tribe to leave her house.
During course of trial, on a petition filed by the public prosecutor, the charge was altered from section 363 IPC to section 366 IPC and accordingly the charges were reframed against the appellant under section 366 of IPC and section 3(1)(xv) of the SC and ST (PA) Act.
The learned trial court vide impugned judgment and order dated 08.08.2011 found the appellant guilty under section 366 of IPC as well as under section 3(1)(xv) of the SC and ST 3 (PA) Act. The appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 20,000/- (Rupees Twenty Thousands), in default of payment of fine, to undergo rigorous imprisonment for one year for the offence under section 366 of IPC. He was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/- (Rupees five thousands), in default of payment of fine, to undergo rigorous imprisonment for three months for the offence under section 3(1)(xv) of the SC and ST (PA) Act. Both the substantive sentences were directed to run concurrently.
2. The prosecution case, as per FIR lodged by one Chinilal Sabar (P.W.9) on 05.05.2010 before the Inspector-In- Charge, Nuapada Police Station is that he belonged to Scheduled Tribe and the victim who is his daughter was aged about 17 to 18 years. On 18.11.2009 while the victim was staying in the house of her elder mother in village Jhilmila, the appellant called her over telephone and informed her about her mother's illness. The appellant further intimated her that her father had been to Bargarh and brother had been to Gujurat and nobody was present in the house to look after her ailing mother and asked her to come back to her house. The victim with her elder mother returned back to her house. It is further stated in the FIR that on 19.11.2009 night the appellant kidnapped the victim and on 4 21.11.2009 at about 7.00 a.m. the paternal uncle of the appellant namely Jagadish Sahu intimated the elder brother of the informant namely Mandhar Sabar that the appellant had kidnapped the victim and they would search for both of them and thereafter the victim would be handed over to her parents. With such assurance being given by the paternal uncle of the appellant, the informant waited but since the victim did not return back even after a considerable period, the FIR was lodged on 05.05.2010.
On the basis of such FIR, Inspector-in-Charge of Nuapada Police Station registered Nuapada P.S. Case No.37 dated 05.05.2010 under section 363 of IPC and section 3(1)(xv) of the SC and ST (PA) Act and the charge of investigation was handed over to Shri Prafulla Kumar Patra (P.W.11), S.D.P.O., Nuapada. During course of investigation, P.W.11 examined the informant and other witnesses. He visited the spot and prepared spot map Ext.2. On 31.05.2010 he arrested the appellant and forwarded him to Court. He sent requisition to Tahasildar, Nuapada to ascertain the caste of the informant and the accused as well as the victim. The Tahasildar, Nuapada vide the letter no. 2107 dated 19.07.2010 intimated that the informant and the victim belong to 'Sabar' Caste which is 'ST' and the appellant belongs to 'Teli' Caste which is 'OBC'. In spite of the best efforts, 5 the I.O. could not be able to trace out the victim girl and accordingly on completion of investigation, charge sheet was submitted against the appellant under section 363 of IPC and section 3(1)(xv) of the SC and ST (PA) Act.
3. After observing due committal formalities, the case of the appellant was committed to the Court of Session for trial where the learned trial court first framed charge against the appellant under section 363 of IPC and section 3(1)(xv) of SC and ST (PA) Act on 19.08.2010 and since the appellant denied the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Subsequently in the midst of trial, on a petition filed by the Special Public Prosecutor, the charge was altered to one under section 366 of IPC and on 21.07.2011 the learned trial Court reframed the charge under section 366 of IPC and section 3(1)(xv) of SC and ST (PA) Act to which also the appellant pleaded not guilty.
4. In order to prove its case, the prosecution examined eleven witnesses.
P.W.1 Dinabandhu Sabar is a co-villager of the informant and he stated that he received a phone call from one Ahalya Rout, a co-villager who was staying at Nagpur who intimated him that she had received phone call from the victim 6 that she was at Nagpur railway station alone and the victim was requesting her to take her. P.W.1 further stated that Ahalya Rout was not inclined to take the victim with her unless she was requested in that behalf by the parents of the victim. P.W.1 further stated that at about 9.00 p.m. in the night on the same day when he talked with Ahalya Rout over phone, she informed him that she had been to Nagpur railway station but could not locate the victim.
P.W.2 Shankarlal Rout is a co-villager of the informant who stated that he along with Suklala Rout had been to Nagpur to trace out the victim and they contacted Ahalya Rout and Debaki Rout who told them that the victim had not come to their house.
P.W.3 Mandhar Sabar is the elder brother of the informant who stated that the paternal uncle of the appellant told him about the kidnapping and further told him that they would search for the appellant as well as the victim and thereafter the victim would be handed over to her parents. He has further stated about the caste of the informant to be Sabar and that of the appellant as general category.
P.W.4 Manihar Sabar is a co-villager of the appellant who stated that the informant called a village meeting and he attended the said meeting wherein he was intimated about the 7 kidnapping of the victim by the appellant but neither the appellant nor his parents attended the meeting.
P.W. 5 Soneibai Bewa is the mother's sister of the victim and she has stated that on receipt of the information regarding the illness of the mother of the victim, she along with the victim came to the house of victim situated at village Maharadihi.
P.W.6 is the victim lady.
P.W.7 Dileswari Ahir stated that the accused used to purchase mobile re-charge vouchers from his grocery shop and two to three days prior to the occurrence, the appellant had purchased one of such vouchers.
P.W.8 Anjali Sabar has stated that the victim had come to her house and in the night, she slept with her and on the next day morning, she left her house.
P.W.9 Chinilal Sabar is the informant in the case and he is the father of the victim.
P.W.10 Dhanmati Sabar is the mother of the victim and she has stated about the missing of the victim from her house after arrival from village Jhilimila.
P.W.11 Prafulla Kumar Patra is the Investigating Officer 8 The prosecution exhibited three documents. Ext.1 is the FIR, Ext.2 is the Spot Map and Ext.3 is the letter of the Tahasildar, Nuapada.
No witness was examined on behalf of the defence.
5. The defence plea is one of denial and it was specifically pleaded by the appellant that neither he had called the victim over phone nor he had taken her away to Raipur nor he had handed her over to any lady and since he is an affluent person, he has been falsely roped in the case.
6. The learned trial Court had been pleased to held that since the I.O. has not collected any material relating to the age of the victim and the victim during her deposition in Court has stated her age to be 18 years and the father of the victim in his evidence has stated that at the time of occurrence, the age of the victim was 22 years, no conviction can be warranted against the appellant for kidnapping of the victim.
The learned trial Court, however held that the prosecution has proved its case that the appellant had abducted the victim in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse and as such held the appellant liable under section 366 of IPC. Learned trial Court further held that the appellant not being a member of Scheduled Caste or 9 Scheduled Tribe caused the victim, a member of Scheduled Tribe to leave her house and as such the appellant was held liable under section 3(1)(xv) of the SC and ST (PA) Act.
7. Mr. Bijaya Kumar Behera, learned counsel appearing for the appellant contended that the impugned judgment and order of conviction is not sustainable in the eye of law. He further contended that when the learned trial Court has acquitted the appellant of the charge of kidnapping holding that, in view of the age of the victim as on the date of occurrence, the ingredients of such offence are not made out and when there is no clinching material that any force or any deceitful means was applied by the appellant for inducing the victim to leave her village, the basic ingredients of 'abduction' are not attracted and as such the conviction of the appellant under section 366 of IPC is wholly unwarranted.
The learned counsel for the appellant further urged that merely because the victim belonged to Scheduled Tribe and the appellant belonged to general caste, that itself would not attract the ingredients of offence under section 3(1)(xv) of the SC and ST (PA) Act, 1989 unless there are materials on record that the appellant had used any force or had caused the victim to leave her house. The learned counsel further urged that the statement of the victim clearly indicates that she on her own 10 volition left her lawful guardianship being fully aware that the accused is a married person and moved with the appellant from place to place and did not complain before anybody while she was in the company of the appellant even though she had ample opportunity and scope to complain against the appellant and therefore in absence of the basic ingredients of offences, the impugned judgment and order of conviction is liable to be set aside. Leaned counsel for the appellant further urged that there is inordinate delay in lodging the FIR and there is no clinching material on record that the appellant received any money from the lady to whom the victim is stated to have been handed over.
Mr. Sangram Keshari Nayak, learned Addl.
Government Advocate on the contrary, contended that since the victim was not rescued till the submission of charge sheet, she could not be sent for medical examination and as the appellant being himself a married person had made false promises of marriage to the victim for which the victim left her lawful guardianship and the victim being admittedly a member of Scheduled Tribe, the ingredients of both the offences are squarely attracted.
8. Considering the submissions raised by the learned counsels for the respective parties, there is no dispute that the prosecution has miserably failed in all respect to prove that the 11 victim was minor as on the date of occurrence. Since the victim had not gone to any school for her studies, no educational certificate regarding her age proof was available. No birth certificate or horoscope was proved. No medical evidence is also available in support of her age at the time of occurrence. Though the victim stated her age to be 18 years at the time of deposition which was given a year after occurrence but the father of the victim has stated that the victim was aged about 22 years at the time of occurrence. In view of such materials, I am of the humble view that the victim was major as on the date of occurrence.
9. Section 362 I.P.C. defines 'abduction'. It requires movement of any person from one place to other either by force or by deceitful means. The provision envisages two types of abduction i.e. (i) by force or by compulsion; and/or (ii) inducement by deceitful means. The object of such compulsion or inducement must be going of the victim from any place. The word 'force' is defined in section 349 I.P.C. as implying a contact between the person on whom force is used and some other person or object in order to compel the former to move or to cease to move from a certain place. The word 'force' in this section meant actual force and not merely a show or threat of force. It hardly needs to be observed that merely taking away of 12 a woman without use of force or deceitful means and without the intention specified in the section would not amount to abduction. Deception can be established only when accused either dishonestly or fraudulently conceal certain facts or made a false statement to the victim knowing it to be false.
In order to bring home an offence under section 366 of I.P.C., the prosecution is required to establish first that the accused kidnapped as understood in sections 360 and 361 of I.P.C. or abducted the victim as understood in section 362 of IPC. 'Kidnapping' and 'abduction' are two distinct offences. The ingredients of the two offences are entirely different. The prosecution is further required to establish that the victim was a woman and that the accused during the kidnapping or abduction had the intention or knew it to be likely that such woman might or would be forced to marry a person against her will or that she might or would be forced or seduced to illicit intercourse or by means of criminal intimidation or otherwise, by inducing the woman to go from any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse.
Kidnapping from lawful guardianship prescribes separate age limit for a male victim as well as a female victim. For any victim of unsound mind, no age limit has been 13 prescribed. In abduction, the person abducted may be a minor or a major. Abduction is not punishable per se but is punishable only when accompanied by a particular purpose as contemplated in the latter sections i.e. sections 364 to 369 of I.P.C.
10. Analyzing the evidence on record to find out whether a case of abduction is made out or not and whether it is further established that the purposes which are required to be proved under section 366 of IPC are proved or not, it appears that the victim was a fully grown up girl. She had attended the age of discretion and moreover she was sensible and aware of the intention of the appellant. It was not unknown to her with whom and for what purpose she was going.
The victim (P.W.6) has stated that the accused was a married person by the time of occurrence and since the accused told her that he would marry her, she agreed and then she went with the accused to Khariar road in a cycle and from Khariar Road to Raipur by train. She had not attempted to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect her. She further stated that she left her house with the accused without informing anybody and on her own will. Thus she was a willing party to go with the appellant on her own. She had further stated that at Khariar Road, the appellant asked her to sit for some time and went with the cycle 14 and after sometime returned to railway station leaving the cycle elsewhere. The victim has not tried to escape from the Railway Station while she was alone nor complained either before railway police or before anybody. She further stated that both of them got up in the train at Khariar Road at about 4.00 a.m. and reached at Raipur railway station at 6.00 a.m. and they remained at Raipur Railway Station for about half an hour. Though the victim has stated in the chief examination that the appellant asked her to sit near a lady and left the train compartment and then that lady told her that she had purchased her from the appellant for Rs.1,000,00/- and took her to Nagpur and from Nagpur to Pune in a bus but that lady is neither a witness in this case nor an accused. There is also no material on record that any money was handed over by that lady to the appellant. The victim on the other hand has stated in her cross- examination that when the appellant got up into the train compartment at Raipur, that lady had already occupied a seat and the appellant requested the lady to give a space on the seat near her for her sitting and accordingly the lady provided her space and she sat down and thereafter the appellant had no talk with that lady. In view of such evidence, there is no material on record that the appellant had handed over the victim to that lady or any money was given by the lady to the appellant. The 15 statement of the victim as to what the lady told her being hearsay in nature is not admissible in the eye of law. The conduct of the victim in further accompanying the lady even after the later disclosed before her that she had purchased her from the appellant for cash of Rs. 1,000,00/- and her further conduct in not complaining before anybody either in the train compartment or elsewhere is another factor which goes against the truthfulness of the statement of the victim. There is absolutely no material on record that either any force or compulsion or any deceitful means was applied to the victim by the appellant for leaving her lawful guardianship rather it appears that the victim on her own sweet will, left the house without intimating anybody in the house and accompanied the appellant knowing fully well that he is a married person and therefore the ingredients of offence under section 366 of IPC are not attracted.
Coming to the offence under section 3(1)(xv) of the SC and ST (PA) Act, it is very clear that force must be applied or some overt act must be caused on the member of a Scheduled Caste or Scheduled Tribe to leave his house, village or place of residence. If a member of Scheduled Caste or Scheduled Tribe on his/her own volition accompanies the accused leaving his/her house or village or his place of resident, merely because the 16 accused is not a member of Scheduled Caste or Scheduled Tribe, the ingredients of offence under section 3(1)(xv) of the SC and ST (PA) Act would not be automatically attracted. As I have already held that the prosecution has failed to establish that any kind of force or deceitful means was utilized by the appellant on the victim which caused the victim to leave her house, I am of the view that the ingredients of the offence under section 3(1)(xv) of the SC and ST (PA) Act is also not attracted.
11. Coming to the next contention raised by the learned counsel for the appellant that there is inordinate delay in the lodging of the FIR, it appears that the occurrence has taken place on 19.11.2009 and the FIR was lodged on 05.05.2010. Though some flimsy explanation regarding delay is given in the F.I.R. but neither the informant nor any other witness has stated anything in Court regarding the cause of delay in presenting the F.I.R. Therefore, I am of the view that the delay in lodging F.I.R. has not been properly explained by the prosecution.
12. In view of what has been discussed above, since the prosecution has filed to prove the ingredients of offences either under section 366 of IPC or under section 3(1)(xv) of the SC and ST (PA) Act, the impugned judgment and the order of conviction cannot be sustained in the eye of law and accordingly the same is hereby set aside.
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The appeal is allowed.
The appellant who is in jail custody shall be released forthwith if his detention is not required in any other crime.
Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 23rd December, 2015/Sukanta