Orissa High Court
Bisad Pani And Others vs State Of Orissa on 7 August, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA NO.116 of 1993
(In the matter of application under Section 374(2) of
the Criminal Procedure Code, 1973.).
Bisad Pani and Others .... Appellants
-versus-
State of Orissa .... Respondent
For Appellants : Mr. B.S. Rayguru,
Amicus Curiae
For Respondent : Mr. S.S. Pradhan, AGA
CORAM:
JUSTICE G. SATAPATHY
DATE OF JUDGMENT:
07.08.2023(ORAL)
G. Satapathy, J.
1. This appeal by the convicts impugns the judgment passed on 11.03.1993 by learned Additional Sessions Judge, Paralakhemundi in S.C. No. 28 of 1992 convicting the Appellants for offence punishable U/S. 366 of IPC and sentencing each of CRA No.116 of 1993 Page 1 of 9 the five appellants to Rigorous Imprisonment for seven years, while acquitting them for offence punishable U/Ss. 363/368 of IPC.
2. Prosecution case in brief is on 12.12.1991 about about 11am in the morning, when the victim along with her friends were returning after collecting firewood loaded on their head, on their way, near a revulet (Nala), the convicts-appellants obstructed them and Appellant No.2 Ramuel Naik(A2) asked the Appellant No. 5 Jyotimaya Bardhan(A5) to drag the victim and accordingly, A5 Jyotimaya Bardhan pushed the firewood load from the head of the victim and drag her by catching hold of her hand, although the victim cried loudly. Appellant Bisad Pani(A1) and Ramuel Naik(A2) came forward by showing knife and threatening the victim to not to make any commotion and on seeing this, the friends of the victim being frightened retreated to village and the appellants accordingly, took the victim to the Taratarini Hill, but CRA No.116 of 1993 Page 2 of 9 fortunately hearing the voice of her brother, the victim ran towards him at Taratarini hill and the appellants got themselves hidden in the forest and the victim(PW2) was, accordingly, rescued.
On this incident, PW1 lodged an FIR before IIC, Serango PS vide Ext.1 paving the way for registration of PS Case No. 67 of 1991 with entrustment of investigation to PW7 who after conclusion of investigation had placed a charge-sheet against the appellants resulting in trial in the present case.
3. In support of its case, the prosecution had examined altogether 7 witnesses vide PWs. 1 to 7, relied upon two documents under Exts. 1 & 2 and material object MOI, the knife as against no evidence whatsoever by the defence. Of the 7 witnesses examined, PW1 was the Informant, PW2 was the victim herself, PWs 3 & 4 were the friends who had accompanied the victim to the Jungle, PW5 was the CRA No.116 of 1993 Page 3 of 9 brother-in-law of the victim, whereas PW6 was her brother and PW7 was the IO in this case. The plea of the defence was false implication simplicitor. However, the defence had unsuccessfully suggested to the victim that there was a proposal of marriage between herself and the A5 Jyotirmaya Bardhan and when the marriage of A5 was negotiated with another girl, she had foisted this false case.
4. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the Appellants by mainly relying upon the evidence of PW2, whose evidence transpired that on 12.12.1991 at about 11am, the convicts-appellants had forcefully kidnapped her on the point of knife and they took her to Taratarini Hill where she heard the voice of her brother and ran towards him and the convicts-appellants had got themselves hidden in the forest.
CRA No.116 of 1993 Page 4 of 9
5. Mr. B.S. Rayguru, learned Amicus Curiae, however, forcibly submits that the evidence of victim never discloses any intention of the convicts- appellants to compel the victim to marry with A5 Jyotirmaya Bardhan and, when the trial Court had found the convicts-appellants not guilty of the offence U/Ss. 363/368 of IPC, no offence U/S. 366 of IPC stands attracted against the Appellants. Reliance has been placed in the decision in Kavita Chandrakant Lakhani vs State Of Maharashtra and another; (2018) 71 OCR SC 232.
6. In repelling such submissions, Mr. S.S. Pradhan, learned AGA, by drawing attention of the Court to the evidence of PW2 submits that the evidence of victim is very clear and unambiguous and it clearly established that the convicts-appellants had abducted the victim and the suggestion given to the victim itself speaks about the intention of the A5 Jyotirmaya Bardhan to compel the victim to marry CRA No.116 of 1993 Page 5 of 9 him and thereby, the offence U/S. 366 stands squarely attracted against the convicts and the learned trial Court had not committed any illegality in convicting the Appellants.
7. Adverting to the rival contentions, this Court considers it apt to reiterate as to what acts constitute the offence U/S. 366 of IPC. For attracting the offence U/S. 366 of IPC, the prosecution is obliged to prove the following facts against the accused persons.
(i) The accused person had induced the victim-woman or compelled her by forcing to go from any place.
(ii) Such inducement must be by deceitful means.
(iii)Such abduction must have taken place with intent that the victim may be seduced to illicit inter course and/or that the accused knew it to be likely that the victim may be seduced to illicit inter course as a result of her abduction.
8. It is, however, clear that the mere abduction does not bring an accused under the ambit of the CRA No.116 of 1993 Page 6 of 9 penal provision U/S. 366 of IPC. Merely because a woman was found abducted ipso facto would not attract the offence U/S. 366 of IPC, unless it is accompanied with the requisite intention of the accused persons. In this case, although the learned trial Court on analysis of evidence had returned with a finding that the A5 Jyotirmaya Bardhan had intended to marry the victim, but such observation of the learned trial Court appears to be without any legal admissible evidence, which stands clarified from the evidence of victim herself who had not spoken a single word about the intention of any of the Appellants to compel her to marry with A5 Jyotirmaya Bardhan. A bare perusal of evidence of witnesses including the victim does not reveal about the requisite intention of any of the appellants for commission of offence U/S. 366 of IPC and there appears evidence against the appellants for taking away the victim, but the learned trial Court on correct analysis of evidence had acquitted the Appellants for CRA No.116 of 1993 Page 7 of 9 charge U/S. 363 of IPC. The learned trial Court, however, had not directed itself to appreciate the evidence against the appellants for charge U/S. 368 of IPC, but it had acquitted the appellants for offence U/S. 368 of IPC which was never challenged by the State in any appeal and it thereby remains confirmed. It, however, appears beyond cavil of doubt that when a person is acquitted of the charge either U/S. 363 or 368 of the IPC, he thereafter cannot be convicted for offence U/S. 366 of IPC.
9. After having a careful appraisal and scrutiny of evidence placed on record with the assistance of learned counsel for the parties, this Court does not find any evidence to indicate that the Appellants had either any intention to force/compel the victim to marry with any of the Appellants or seduced her to have illicit inter course with anyone of the Appellants and, thereby, the offence U/S. 366 of IPC does not stand attracted against any of the convicts in absence CRA No.116 of 1993 Page 8 of 9 of any conviction either for offence U/Ss. 363/368 of IPC. Hence, the Appellants are entitled for an acquittal inasmuch as the evidence on record cannot be considered to have established the guilt of any of the Appellants for offence under Section 366 of IPC beyond all reasonable doubt.
10. In the result, the appeal stands allowed on contest, but in the circumstance, there is no order as to costs. Consequently, the impugned judgment of conviction and sentence dated 11.03.1993 passed by the learned Additional Sessions Judge, Paralakhemundi in S.C. No. 28 of 1992 are hereby set aside. As necessary corollary, the appellants are discharged of their bail bonds.
(G. Satapathy) Judge Signature Not Verified Digitally Signed Orissa High Court, Cuttack, Signed by: PRIYAJIT SAHOO Dated the 7 th day of August, 2023/Priyajit Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 14-Aug-2023 10:54:52 CRA No.116 of 1993 Page 9 of 9