Orissa High Court Abhaya Jena And Anr. vs State on 18 November, 1996Equivalent citations: 1997 (2) ALT Cri 7, 1997 I OLR 26 Author: C Pal Bench: C Pal
C.R. Pal, J.
1. The appellants assail the order of conviction and sentence dated 2-4-1993 passed by the Additional Sessions Judge, Parlakhemundi in Sessions Trial Case No. 11 of of 1992 i, e. Sessions Trial No. 5/92 GDC where in each of the appellants has been convicted under Sections 366 and 506, IPC and has been sentenced under Section 366 to undergo R. I. for tan years. No separate sentence has been passed under Section 506, IPC.
2. The case against the appellants is that on 15-3-1991 while Manjula Pani, the victim girl (PW 3) along with Nandana Bebarta (PW 4) were returning from jungle carrying fire-wood those appellants appeared before them and caught hold of PW 3, she requested them to leave her stating that her marriage has already been settled at Berhampur. The appellants did not listen to her request and dragged her. In the process of dragging appellant No. 1 tore her blouse. When her companions tried to rescue her the appellants threatened them to kill showing a knife. They also threatened PW 3 to kill her if she would shout. At that time Israel Singh, (PW 1) who was plucking tamarind from a nearby tree and Rebika Jena, (PW 5) came there and asked the appellants to leave the PW 3. But they did not listen to their request and forcibly made PW 3 to sit on a motor cycle and took her to Bhaliatota gagging her mouth. Sometime there-after the father and brother of PW 3 along with some villagers reached at Bhaliatota and seeing them the appellants left that place. From Bhaliatota the victim was sent to Gandahati. On 16-3-1991 coming to know that the 0. I. C, Ramgiri Police Station was camping at Parlakhemundi she came to Parlakhemundi and orally reported about the occurrence to him. The OIC reduced the oral report into writing and took up investigation and ultimately filed charge-sheet against both the appellants under Sections 342, 354,366, 506/34, IPC and after commitment the case came to the Court of Additional Sessions Judge on transfer for trial where the accused persons were charged for the offences under Sections 353, 366 and 506, IPC to which they pleaded not guilty and claimed to be tried.
3. The case of the appellant No. 1 was that PW 3 was in love with him and when her marriage was settled at another place she wrote a letter to the appellant No. 1 intimating him that her marriage was going to be solemnised with another person and requesting him to somehow prevent the same, and accordingly she volunteered to go with the appellant No. 1, who took her to Jaharbandh. Subsequent to that the relations of PW 3 and some of her villagers came there and there was an ocurrence in which members of both the groups sustained injuries and they took away the PW 3 with them. Subsequently, after deliberation this case has been started with false allegations. The case of the appellant No. 2 is a complete denial of the allegations levelled against him.
4. The prosecution examined seven witnesses out of whom PW 3 is the victim girl, PWs 1,4 and 5 are witnesses to the occurrence of taking away the girl forcibly by the appellants and PW 2 is a witness to the seizure of the torn blouse of the victim girl and PW 6 is the brother of victim girl who rescued the girl from Bhalia-tota and accompanied her to Parlakhemundi where PW 3 lodged the information, Ext. 1 and PW 7 is the Investigating Officer. The appellant No. 1 examined Solanti Jena as DW 1. He also produced the letter said to have been written by PW 3 marked ‘X’ for identification and other documents (Exts. A B and C). The trial Court after hearing both the sides found that PW 3 by the date of occurrence was more than 18 years of age and accordingly acquitted the appellants from the charge under Section 363, IPC, but convicted them for the offences under Section 366, and undar Section 506, IPC and sentenced each of them thereunder as mentioned earlier.
5. The learned counsel appearing for the appelants assails the order of conviction and sentence on the ground that the charge under Section 333 having not been established the charge under Section 366 for kidnapping the said minor girl with intent that she may be compelled and will be forced to have illicit intercourse with the appellants is not sustainable. It is also contended that the charge under Section 506, IPC is not sustainable as the evidence to that effect are highly discrepant in nature.
6. It is contended by the learned counsel of the appellants that the appellants having been acquitted of the charge under Section 363, IPC, on the grounds that the victim was not a minor at the time of the alleged occurrence the charge under Section 66 for kidnapping the said minor girl with intent that she may be compelled and forced to have illicit intercourse with the appellants must also fail. The learned Additional Government Advocate, on the other hand, argued in support of the order of conviction and sentence contending that for an offence under Section 366 the age of the victim is immaterial. In the above context, before coming to the correctness of the order of conviction and sentence it will be beneficial to look at the relevant portion of the charge framed by the trial Court which runs as follows :
(1) That you on 15-3-1991 at about 8 p. m, at Mahisa Khata Pahada of village Narayanpur kidnapped Manjula Peni a female minor under 18 years from lawful guardianship of Samai Pani, her father and thereby committed an offence punishable under Section 363, IPC and within my congnizance.
(2) That you on or about the same date, time and place kidnapped a woman Susila Pani with Intent that she may be compelled and will be forced to have illicit intercourse with you and thereby committed an offence punishable under Section 366 of the Indian Penal Code and within my cognizance.
(3) That you on or about the same date, time and place committed criminal intimidation by threatening Susila Pani with injury to his person and reputation with intent to cause alarm to the said Susila Pani and thereby committed an offence punishable under Section 506, IPC and within my cognizance.
From the charge framed under Section 366 it is clear that the appellants kidnapped one Susila Pani with intent that she may be compelled and will be forced to have illicit intercourse with the appellants. The charge under Section 366, IPC is silent as to whether the victim was minor or not though it reveals that a woman named Susila was kidnapped with the aforesaid intent. But the prosecution case as it appears from the evidence on record was that the appellants kidnapped Manjula Pani, the PW 3, who according to the prosecution was a minor at the time of the alleged occurrence. None of the witnesses in their evidence before the Court has deposed that any Susila Pani was kidnapped on the date of occurrence. It is argued by the learned Additional Government Advocate that the name of Susil Pani has crept into the” charge inadvertently and as such the same should be read as Manjula Pani. The learned counsel of the appellants also did not dispute the same, ft also appears that the appellants so far have also proceeded with the case that the charge relates to the alleged occurrence relating to Manjula. In fact out of the charges in three heads the first head of charge is for offence under Section 363, IPC. That charge clearly reads that the alleged offence was committed relating to the minor girl Manjula. Thus the circumstances show that the appellants have neither been misled nor any failure of justice occasioned due to the alleged error. Accepting the contention of the learned Additional Government Advocate that the name of Susiia Pani has crept in due to inadvertence the correctness of the conviction under Section 366, IPC is now to be examined. From a reading of the charge it is clear that the charge was for kidnapping the victim lady and not for abduction The learned Assistant Sessions Judge analysing the evidence on record has come to a conclusion that PW 3, the victim lady was not a minor on the date of occurrence. In absence of any acceptable evidence adduced by the prosecution to establish the age of the victim girl the trial Court has rightly arrived at the above conclusion on the basis of the electoral role, Ext. A. So it is difficult to understand how the learned Assistant Sessions Judge convicted the appellants for kidnapping the sad victim lady for the purpose contemplated under Section 366. IPC. It is well-known that kidnapping and abduction are two distinct offences. The ingredients of the two offences are entirely different. Kidnapping except kidnapping from India is an offence against guardianship. As defined in Section 361, IPC it consists of enticing or removing a minor from the keeping of the lawful guardian without his consent. Abduction is an offence as defined in Section 362, IPC when a person is by force compelled or by any deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. Kidnapping is punishable per se under Section 363, IPC. Abduction is not punishable per se and is punishable only when accompanied by a particular purpose as contemplated under Sections 304 to 356, IPC. As kidnapping may also be for the purpose mentioned in Sections 364 to 366, IPC those sections deal with both kidnapping and abduction for the purpose stated therein and prescribe the punishment. But when a person is specifically charged for the offence of kidnapping a minor girl for being compelled to have illicit intercourse with a person he cannot be convicted for abducting a woman for the said purpose when it is found on evidence that the victim is not a minor as defined in the Code. It is noticed that the trial Court has failed too draw the distinction between kidnapping and abduction which are two distinct offenses and has fell into error by convicting the appellants under Section 366, IPC for kidnapping the victim while acquitting the appellants from the charge under Section 363. in this context, it may be mentioned here that in the Charge under Section 366, IPC there is no mention whether the victim was a minor or a major. Section 366, IPC prescribes punishment for kidnapping as well as abduction committed with the purpose mentioned in that section, therefore, it may be said that the conviction is for abduction and not for kidnapping. But the charge clearly indicates that the appellants were charged for an offence of kidnapping with the intent to compel the victim to have sexual intercourse with them. Therefore, now it cannot be said that the charge was for abducting the said victim for the aforesaid purpose. Therefore, the conviction and sentence passed under Section 366, IPC cannot be sustained.
7. The learned counsel of the appellants further contended that the evidence about the alleged threats given to the victim as welt as some of the witnesses is highly discrepant and as such the trial Court should not have placed any reliance thereon to hold the appellants guilty under Section 506, IPC. The learned Additional Standing Counsel on the other hand, submitted in support of the finding. The charge is for criminal intimidation alleged to have committed against Susila Pani. The prosecution case is that the appellants kidnapped Manjula (PW 3) and when Manjula and her companions PWs 1 and 5 protested the appellants threatened them all. But as it appears, there was none named Susila among the persons threatened. The learned Addl. Government Advocate submitted that the mistake in the charge cannot be of any consequence and the same cannot effect the trial adversely as the appellants were well aware from the beginning that the case was for committing the offence against the victim girl Manjula The appellants also do not challenge the order of conviction for the above defects in the charge. On the other hand, it is contended on behalf of the appellants that there is no reliable evidence to support the order of conviction under Section 506, IPC. In the above context, it is noticed that all the eye-witnesses including the victim girl have stated that the persons threatened them showing a knife. All of them have also deposed that appellant Abhaya Jena was holding the knife. The witnesses have also identified the knife which has been marked on M. O. I. But on a close scrutiny of the evidence of the witnesses, it appears that ML O. I can not be the knife said to have been used by the appellant Abhaya in threatening the witnesses. About the use of knife and the identification thereof the PW 1 has deposed “while we were following the accused persons (both the accused persons) told as to why we were chasing and saying so they threw one Kati (Again tie-witness says that they threw one knife, but not Kati). M. O. I is that knife. That M. O. I was brought by Rebika”. Further he has deposed “Rebika brought M. O. I to the village Narayanpur”. Rebika has been examined as PW 5. Though this witness has deposed that appellant Abhaya Jena showed a knife to her, her testimony does not show that the knife was thrown at them or that she picked up the same and took, it to her village. The victim girl, PW 3, and her companion, PW 4 have not also stated that the knife was thrown by any. of the appe Hants while they were going away from the Mahishikotha hill taking with them the victim girl. Contrary to the above evidence of PW 1, the brother (PW 6) of the victim girl has deposed that he saw the knife in the hands of appellant Abhaya from a distance of 250 cubits while he was at Bhaliatota. He has also identified the M. 0.I to be the knife which he saw in the hands of appellant Abhaya Jena. The evidence of all these witnesses becomes highly suspicious where ‘the evidence of PW 7, the I. O. is looked into. PW 7 in his evidence has stated that the IV). O. I was seized in connection with another case i. e., S.C. No. 13 of 1990 and the same had no role to play in this case. From the above evidence, it is difficult to accept that the witnesses PWs 1,3, 4, 5 and 6 saw the M.
O. I. in the hands of Abhaya. Therefore the alleged threats given by the appellant Abhaya Jena by showing a knife to the witnesses cannot also be accepted base a conviction for an offence under Section 506, IPC.
8. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellants by the trial Court in Sessions Trial No. 11/92-5/92 GDC is set aside and the appellants are acquitted from the charges under Sections 366 and 506, IPC. They be set at liberty forthwith if their detention is not required in any other case.