Bhagaban Panigrahi vs The State

V. Gopalaswamy, J.—This revision is preferred against the judgment dated 28-1-1984 of the learned Additional Sessions Judge, Koraput.

Jeypore, in Criminal Appeal No. 155 of 1983 confirming the judgment of the Assistant Sessions Judge, Gunupur in Sessions Case No. 12 of 1982

convicting the Petitioner u/s 366, I.P.C. and sentencing him thereunder to undergo rigorous imprisonment for a period of three years and six

months.

The prosecution case, briefly stated, is as follows:

The informant Kamdeb Padhi (p.w. 5) is the father of the victim girl Sabita Padhi (p.w. 10) and they were residents, of village Ukumba (within

Gunupur P.S. in Koraput district). Sabita was a student at the High School at Ukumba and she had to appear for her High School Certificate

Examination, held during the period from 27-4-1981 up to 4-5-1981, at the Boys High School Centre at Gunupur. For the purpose of appearing

at the H. S.C. examination she was staying temporarily in the room let out by p.w. 7 along with one Jagamaya Panigrahi the daughter of the

Petitioner, as she was also appearing at the H. S.C. examination. The Petitioner is a resident of Ponduru village in Srikakulam district in Andhra

Pradesh. Hrusikesh Panigrahi brother-in-law of the Petitioner, (a co-accused in the case but acquitted by the trial Court) was staying in a room

adjoining the room of Sabita in the house of p.w. 7. During the few days of Sabita''s stay at Gunupur, the Petitioner and his daughter Jagamaya

brought pressure on Sabita to give her consent for marrying Hrusikesh and she informed about it to her father (p.w. 5). The Petitioner made the

proposal to p.w. 5 about his brother-in-law''s marriage with Sabita but p.w. 5 turned down the proposal. On the night of 3-5-1981 Sabita and

Jagamaya slept in the same room but in the morning of 4-5-1981 at about 8 a. m. Sabita woke up and found himself in the bus stand at

Parlakhemundi and the Petitioner was by her side. From Parlakhemundi the Petitioner had taken Sabita to Tekhali (in Andhra Pradesh) where she

was compelled to stay in a hut and in a lodge for about four days and throughout the Petitioner was ill-treating her and misbehaving with her. On

16-5-1981 one Pagadalu, the kept mistress of the Petitioner brought the victim girl from Tekhali to Parlakhemundi by bus. At Parlakhemundi the

victim girl was rescued by p.w. 6 and the latter took her on a motor cycle to her father''s house at Ukumba. On 10-5-1981 p.w. 5 lodged the F. I.

R. Ext. 7 at the Gunupur police station. The date of birth of the,said Sabita is 1-7-1965. The police duly investigated into, the case and submitted

the charge-sheet against the Petitioner and his brother-in-law u/s 366A. I.P.C. .

The plea of the Petitioner is one of denial. There D. ws. were examined on behalf of the defence. There is nothing in the evidence of the D. ws.

which is in any way helpful to the Petitioner.

The prosecution has examined in all 16 witnesses to prove its case. P. w. 1 was examined to prove a seizure of the telegram ''but he declines to

depose about it, P. w. 2 produced the Admission Register of Ukumba High School and p.w. 3 is a witness to its seizure. P. w. 4 is the proprietor

of the lodge of Tekkali where the victim girl was compelled to stay. P. w. 5 is the father of the victim girl and the informant in the case. P. w. 6

rescued the victim girl from the cultches of the Petitioner''s mistress and brought her to her father''s house. P. w. 7 is the landlord of the house

where the victim girl stayed at Gunupur. P. w. 8 is a witness to the seizure of the ambit card of Sabita. P. w. 9 is the uncle of P.Ws. 5. who

searched for the victim girl when,she was found missing from Gunupur. P. w. 10 is the victim girl. P. ws. 11 to 14 are the police officers. P. ws. 15

and 16 are the doctors, who examined the victim girl.

P. w. 5 Kamdeb Padhi, the father of Sabita, deposed that the date of birth of Sabita Padhi is 1-7-1965 p.w. 2, the teacher of the Ukumba High

School who made the entry regarding the date of birth of Sabita in the Admission Register proves the said entry Ext. 1. It shows that her date of

birth is 1-7-1965. P. w. 16 Dr. K.K. Misra was the Head of the Department of Forensic Medicines and Toxicology in M.K.C.G. Medical

College, Berhampur and after examining the victim girl Sabita Padhi on 30-7-1981, opined that the age of the victim girl as'' about 15 years. The

date of occurrence was on 4-5-1981. According to Ext. 1 she was aged about 15 years 10 months on the date of occurrence. Relying on the

evidence of P.Ws. 2, 5 and 16 and the recitals in Ext. 1, both the Courts below have come to a finding that Sabita Padhi was aged below 18 years

by the date of occurrence. On a consideration of the above evidence. relied on by both the Courts below, agreeing with their finding, I hold that

Sabita Padhi was a minor below the age of 18 years, by the date of occurrence.

The evidence of the victim girl Sabita (p.w. 10) shows that on the night of 3-5-1981 accused Bhagaban Panigrahi served her food in the room

and that on the morning of 4-5-1981 she woke up at the Parlakhemundi bus stand and found the Petitioner Bhagaban Panigrahi by her side. It is in

her evidence that as she cried, the Petitioner told her that she should marry accused Hrusikesn and assured her that her father and accused

Hrushikesh were coming behind. She deposed that she was feeling reeling of head and was not feeling well at that time. Her evidence shows that

though she wanted the Petitioner to take her back to her house, he took her to Tekkali (in Andhra Pradesh) and compelled her to stay there. She

further deposed that at Tekkali the Petitioner proposed to her to marry him and as she rejected the proposal, he assaulted her. From her evidence

it is seen that on the occasion when the Petitioner tried to forcibly remove her wearing clothes, she assaulted him, when he also assaulted her, as a

result of which, she lost consciousness. The evidence of the victim girl shows that one Pagadalu, the second wife of the Petitioner, brought her by

bus to Parlakhemundi and at the Parlakhemundi bus stand she was rescued by p.w. 6, who brought her on a motor cycle to her father''s house at

Ukumba. The evidence of the victim girl p.w. 10 that without her consent, the Petitioner had taken her away to Parlakhemundi and from there to

Tekkali and that while at Tekkali he ill-treated her and misbehaved with her has not been shaken in cross-examination. P. w. 6 A. N. Rao is an

independent witness. He deposed'' that while the victim girl was with Pagadalu, the Petitioner''s kept mistress in a bus at Paralakhemundi bus

stand, he rescued her and brought her to her father''s house. The above reliable evidence of p.w. 6 corroborate the version of the victim girl that

the Petitioner''s second wife Pagadalu brought her to Parlakhemundi. .

Hrusikesh Panigrahi, who was a co-accused in the case and was acquitted by the trial Court, is the brother-in-law of the Petitioner. There is the

reliable evidence of P.Ws. 5 and 10 to the effect that Hrusikesh was anxious to marry p.w. 10 Sabita and that the Petitioner and his daughter

brought pressure on the victim girl, to give her consent to marry Hrusikesh, and that even the Petitioner made a proposal to p.w. 5, about the

marriage of the victim girl with Hrusikesh, which p.w. 5 had turned down. There is no reason to disbelieve p.w. 10 when she deposed that at

Paralakhemundi bus stand the Petitioner told her that she should marry Hrusikesh. In view of the above evidence and considering the background

under which the Petitioner had taken away the victim girl to Parlakhemundi without her consent, both the Courts below were justified in coming to

a finding, that the Petitioner did so with the intention of compelling the victim girl to marry Hrusikesh against her will.

The evidence of p.w. 5 shows that the village Ukumba where P.Ws. 5 and 10 were residing was at a distance of about 10 K. Ms. from

Gunupur. Even during the days when the examinations were held on 24-4-1981 and 25-4-1981, the uncle of p.w. 10 took her back to Ukamba

on a bicycle after the examinations were over. During the period the examinations were held, p.w. 10 and the Petitioner''s daughter were staying

temporarily in the room let out by p.w. 7. P. w. 5 deposed that he used to come every day to see his daughter (p.w. 10) during the days the

examinations were held. On the morning of 4-5-1981 when the victim girl was found missing from her room, p.w. 5 and Ors. started searching for

her. From the above reliable evidence it is seen that the prosecution has conclusively established that the victim girl, during her stay at Gunupur in

the room let out by p.w. 1 for the purpose of appearing at the a S.C. examination, was under the lawful guardianship of her father p.w. 5.

The learned Counsel for the Petitioner cited many decisions, which might have been relevant, had p.w. 10 Sabita been taken to Parlakhemundi

by the Petitioner with her consent, and had she been willing to marry Hrushikesh. There is no material on record to suggest that the Petitioner had

taken Sabita to Parlakhemundi with her consent or that she was willing to marry Hrusikesh. . The victim girl is proved to be a minor girl on the date

of occurrence. On a plain reading of Section 361, I. P.C, it is seen that the consent of the minor who is taken or enticed is wholly immaterial: It is

only the guardian''s consent which takes the case out of the purview of Section 361. I.P.C. As observed by the Supreme Court in State of

Haryana v. Raja Ram, the object of Section 361. I. P. C,. seems as much to protect the minor children from being seduced for improper

purposes, as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards.

On a careful consideration of the material on record, agreeing with the concurrent findings of the Courts below, I hold that the prosecution

could successfully bring home to the Petitioner the charge u/s 366, I.P.C. Considering the nature of the offence committed by the Petitioner, I find

no reason to interfere with the sentence imposed on him by the Courts below.

In the result, I find no merit in the revision petition and the same is, therefore, dismissed.