Atanu Kumar Sahu vs State of Orissa

R.K. Dash, J.—The petitioner and two others (since acquitted) faced trial under Sections 363 and 376 read with Section 34, IPC, in Sessions Trial No. 51/5 of 1990 in the Court of Chief Judicial Magistrate-cum-Assistant Sessions Judge. Sambalpur. Upon trial, the learned trial Court while acquitting two of the accused persons, convicted the petitioner under Sections 363 and 376, IPC and sentenced him to undergo seven years rigorous imprisonment on each count. Both the sentences were ordered to run concurrently. Against his conviction and sentence, he preferred Criminal Appeal No 125/17 of 1990/91 and the Additional Sessions Judge on reappraisal on the evidence, concurred with the findings recorded by the trial Court and dismissed the appeal. It is against this Judgment and order that the present revision is filed.

To put shortly, the prosecution case unfurled during trial is that on 23-4-1989 Pasala Kumari, a minor girl, while returning home from school with he friends, the petitioner along with two other accused persons (since acquitted) kidnapped her in a jeep towards Sambalpur. Thereafter she was brought to Cuttack and was lodged in Basanti Hotel wherefrom police rescued her on the next day. It is alleged that while staying in the hotel the petitioner committed sexual assault on her. Report being lodged to the police, a case u/s 366, IPC was registered and investigation taken up. In course of investigation PW 5 was sent for medical examination and on receipt of the medical examination report, charge-sheet was laid against the petitioner and his associates under Sections 366 and 376. IPC.

When examined u/s 313, CrPC the petitioner denied the prosecution allegations and pleaded innocence.

In order to bring home the charges, the prosecution examined 11 witnesses. No evidence was led by the defence. The learned Assistant Sessions Judge on consideration of the evidence case to hold that Pasala Kumari being minor, was kidnapped from out of the keeping of her lawful guardian without guardian''s consent and was subjected to forcible sexual intercourse by the petitioner.

Learned counsel for the petitioner in course of argument perfervidly contended that from the available materials a definite conclusion cannot be arrived at that at the time of incident Pasala Kumari was a minor. Referring to the evidence of PW 2, counsel would contend that Pasala Kumari was admitted to a Telugu school at the age of 5 where she read up to class V and from there she was brought and admitted to an Oriva school where she prosecuted her study for three years. Calculating all the periods of her study, it was submitted that by the time of the incident she had already become major. As regards the allegations of kidnapping and rape, learned counsel refuting the prosecution case as untrue, alternatively urged that the evidence and the attending circumstances unmistakably suggest that Pasala Kumari on her own accord accompanied the petitioner and consented for sexual intercourse and so, no criminal liability can be attributed to the petitioner.

Per contra, the learned Additional Standing Counsel argued that findings of both the Courts below about the guilt of the petitioner being based on appreciation of evidence, this Court in exercise of its revisional juisdiction should be slow to disturb the same.

In view of the contentions raised, the first and foremost question that requires decision of this Court is whether the prosecution has proved beyond doubt that Pasala Kumari was a minor on the date of occurrence.

Oral evidence in proof of age of Pasala Kumari consists of the statements of her mother and uncle who have been examined as PWs 2 and 5 respectively and Pasala Kumari who has been examined as PW 5, in addition to this, prosecution also relies upon the evidence of the doctor, PW 9 who held the ossification test. PW 2, an illiterate rustic lady has stated that Pasala Kumari was aged 12 years at the time of incident. To give an incredible look to her evidence, searching cross-examination was made but nothing substantial could be brought out to doubt her veracity. Being questioned by the defence she stated that Pasala Kumari was initially admitted to a Telugu school at the age of 5 where she read up to class 7. Then she discontinued her study for two years. Again she was admitted to an Oriya school where she read up to class III and while prosecuting her study in that class the present incident occurred. If alt those years of study of Pasala Kumari as stated by PW 2 are calculated and accepted as correct, it can unmistakably be said that Pasala Kumari was within 15 years of age. A reading of the whole statement of PW 2 therefore shows that she is a witnesses of truth and her evidence that Pasala Kumari was on the date of occurrence a minor inspires confidence,

The next witness is PW 4, uncle of Pasala Kumari, PW 5 According to him, PW 5 was aged 14 to 13 years at the time of occurrence. PW 5 herself on being examined also gave out her age to be 13 years. In additional to the ocular evidence of the witnesses as aforesaid reliance was also placed on the evidence of doctor. PW 9 who having conducted both clinical and radiological examination opined that PW 5 was about 13 years of age. The above evidence of PWs 2, 4 and 5 as well as the medical evidence of PW 9 clinchingly proves that PW 5 was below 16 years of age.

The above being my finding, the next question is : Did the petitioner kidnap PW 5 from the keeping of her lawful guardian ? To establish the accusation, the prosecution mainly relied upon the evidence of PWs 3, 4, 5 and 11. PW 3, a school-mate of PW 5 has stated that on the date of occurrence while she along with PW 5 and other friends was coming home during recess hours the petitioner caught hold of PW 5 and forcibly took her in a jeep towards Sambalpur. Corroborating her evidence, PW 5 in her chief-examination has narrated as to how she was kidnapped and ravished by the petitioner. As deposed to by her, on the date of incident while she along with her friends was coming home from the school, the petitioner who was standing under a tree forcibly took her in a jeep and lodged in a hotel. While staying in the hotel, the petitioner undressed her and committed rape on her.

The next witness is PW 4. His evidence is relevant so far the apprehension of the petitioner as well as PW 5 by the Police is concerned. It is in his evidence that on the next day of occurrence he along with police left for Cuttack and after search in different hotels, they could find both petitioner and PW 5 in a hotel wherefrom the police brought them to Burla. PW 6, Manager of Basanti Hotel, Cuttack, was examined by prosecution and the relevant entry in the Admission Register, Ext, 8 was proved. A cursory view of Ext. 8 reveals that the petitioner hired a room in the said hotel under a pseudo name. He masquaraded himself as G. K. Bal and PW 5 as Anuradha Bal. The last witness is PW 11, the investigating Officer. It is borne out from his evidence that he along with PW 4 proceeded to Cuttack in search of both PW 5 and the petitioner and during search they could find them in a room of Basanti Hotel.

As stated earlier, it was alternatively argued by the petitioner''s counsel that the evidence on record is suggestive of the fact that PW5 on her free will accompanied the petitioner and consented for sexual intercourse. In support of such contention he made reference to the whole of evidence of PW 5. From the tenor of cross-examination of PW 5 it appears that the defence tried to elicit something more by referring to her previous statement made to the police. It was suggested to her, which in course she denied, that during investigation she stated to the police that the petitioner being her private tutor once asked as to if she was loving him to which she remained silent. She further allegedly stated to the police that two days before the occurrence she on coming to know that her parent were discussing to send her to their native place, informed the petitioner where upon the latter suggested that if she agreed, both of them should flee away. It is the fundamental principle of criminal jurisprudence that previous statement of a witness to the police per se cannot be treated as evidence. In the present case by confronting her previous statement to PW 5, the defence tried to impress upon that as because there was an intrigue between PW 5 and the petitioner, the former left her parental home on her free will. But from narration of the evidence as aforesaid it cannot be said that PW 5 voluntarily left her guardion and joined the petitioner and the petitioner only helped her in her design not to return home. On the other hand, is well established by the evidence and circumstances that PW 5 being a minor fell prey in the hands of the petitioner who forcibly kidnapped her while she was on her way home from the school and then brought her to Cuttack and lodged in a hotel.

The offence of ''kidnapping from lawful guardianship'' as defined in Section 361, IPC reads thus :

"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation--The words ''lawful guardian'' in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

Form the above definition it is quite clear that taking or enticing away out of the keeping of lawful guardian is an essential ingredient of the offence of ''kidnapping''.

As to the true meaning of the expression takes or entices as mentioned in Section 361, IPC, the Supreme Court in Thakorlal D. Vadgama Vs. The State of Gujarat, , observed :

"...The word ''takes'' does not necessarily connote taking by force, and it is not confined only to use of force, actual or constructive. This word merely means, ''to cause to go to escort or ''to get into possession''. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word ''enticed'' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes'' and ''entices'', as used in Section 361, IPC are, in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party then the latter cannot be considered to have committed the offence as defined in Section 361, IPC. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian''s custody or keeping and going to the guilty party than prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If she had an eariler stage solicited or induced her in any manner to leave her father''s protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediats cause of her leaving her parental home or guardians custody would constitute no valid defence and would not absolve him."

In the aforesaid case reference has also been made to an earlier decision in the case of State of Haryana Vs. Raja Ram, , where the Hon''ble Court considered the meaning and scope of Section 351, IPC and observed as under :

"The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the right and privileges of guardians having the lawful charge or custody of their minor wards. The gravemen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words ''takes or entices any minor out of the keeping of the lawful guardian of such minor'' in Section 361, are significant. The use of the word ''keeping'' in the context connotes the idea of charge, protection, maintenance and control; further the guardian''s charge and control appears to be compatible with the independence of action and movement in the minor, the guardian''s protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian''s consent which takes the same out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section."

The facts in Thakorlal''s case (supra) are almost akin to the case in hand. In that reported case the accused having an evil eye on the girl Mohini aged between 14 and 17 years, developed intimacy with her. This encouraged Mohini to visit his house off and on. It was admitted case of the prosecution that on several occasions the accused had sexual intercourse with Mohini. Having suspected her to have an affair with the accused, Mohini''s parents took precaution and did not send her alone to school. On the date of incident Mohini started for her school in the company of her mother. On the way her mother went to the Court premises and she alone went to the school but instead of going to her school, she went to the accused''s factory. In the midnight the accused had sexual intercourse with her against her will. Ultimately Mohini was rescued by the police and on a case being registered by the police under Sections 353 and 376,IPC the accused was prosecuted and found guilty under both the offences. On appeal being preferred, the Gujarat High Court while maintaining the conviction and sentence u/s 386, IPC, acquitted him of the offence u/s 376, IPC. From the evidence and circumstance the trial Court came to hold that it was the accused who induced Mohini to leave her parental home on the day in question. That finding of fact was upheld and approved by the High Court and the Hon''ble Supreme Court. Consequently, accused''s conviction and sentence were maintained. Applying the aforesaid decision to the present case, I would hold that offence u/s 368, IPC has been well-established against the petitioner and he has been rightly convicted thereunder.

Coming to the offence of rape, it is necessary to have a glimpse on the statement of the victim girl, PW 3 and the doctor''s opinion. PW 6 has unhesitatingly stated in her evidence that the petitioner brought her to a hotel where he committed rape on her. The Medical Officer, PW 9 who examined PW 5 on police requisition noticed one injury at 7 O'' clock position at the place of junction of hymen with vaginal wall. On examination, he opined that possibility of sexual act being committed during last 24 hours of examination could not be ruled out. Considering the above evidence the trial Court believed the prosecution version and convicted the petitioner u/s 376, IPC. The appellate Court also concurred with the findings of the trial Court and put its seal of approval. On a reappraisal of the evidence, I find no reason to take a different view and upset the findings of both the Courts below.

So far the question of sentence is concerned, trial Court has awarded sentence of seven years'' rigorous imprisonment to the petitioner on each count. Keeping in view the totality of the facts and circumstances, I am of the considered opinion that ends of justice would be squarely met if the sentence of the petitioner is reduced to five years on each count. Accordingly while upholding the conviction of the petitioner, I reduce his sentence to five years'' rigorous imprisonment for each of the offences under Sections 363 and 376, IPC and order the same to run concurrently.

With the modification of sentence the revision is dismissed.