State of Orissa vs Rahasa Naik and Others

K.B. Panda, J.—The four Respondents were acquitted of the charge u/s 366/34; Indian Penal Code by the Assistant Sessions Judge, Phulbani on 27-3-1975, occasioning this appeal by the State.

The prosecution case, in brief, is thus: On 29-3-1973 at about noon Jamuna Dei (P.W. 6) a minor girl, daughter of P.W. 2 had been to the stream Salunki for bath and fetching water in two brass pots called Garias. As she was brushing her teeth Basistha Rajhansa (Respondent No. 3) and Daphe Rajhansa (Respondent No. 4) appeared at the scene and caught hold of her and bodily lifted her towards their village. Sapana Respondent No. 2 who is the father of Respondent No. 3 Basistha was there who carried away the two Garias. The other Respondent that is, Rahasa Naik came to the scene from an opposite direction. Jamuna was confined according to the prosecution, in the house of Sapana with the purpose of getting her married to Basistha (Respondent No. 3). Sundar Mahanandia (P.W. 2) father of P.W. 6 got information of this and proceeded to village Padmapur the place of residence of Respondents 2, 3 and 4. P.Ws. 2 and 6 are residents of village Ulunda and village Padmapur is an adjoining village intervened by the stream Salunki. The father of P.W. 6 held a Panch attended to by P.Ws. 7 and 8 who are respectively the Gadtia and the chief member of the Panch over this incident. They sent for Respondent Sapana but he did not respond So, it is alleged, that they gave clearance to P.W. 2 under Ext. 3 (styled as Panchanama) to take the help of the Police. Accordingly P.W. 2 lodged information at Boudh P. S. (Ext. 4) on 30-3-1973 at 11 a. m. consequent upon which P.W. 9 rescued the girl (P.W. 6), recovered the two Garias from the house of Sapana (Respondent No. 2) and finally submitted charge-sheet against the four Respondents ending in their acquittal as aforesaid.

The defence was a bare denial of the occurrence with a suggestion that as P.W. 2 is indebted to Respondent Sapana and did not pay up the dues; this false case has been started on account of that.

The prosecution examined 9 witnesses and the defence none. Out of them P.W. 1 is the doctor who, examined the victim girl ''on 31-3-1973 and under Ext. 1 have the certificate that she is a girl between the age limit of 13 to 15. P.W. 2 is the father of the victim girl who lodged information (Ext. 4). P.Ws. 3. 4 and 5 are witnesses to the occurrence; P.W. 6 is the victim girl herself. P.Ws. 7 and 8 are the two Panches the seizure witnesses who were declared hostile and P.W. 9 is the Investigating Officer.

The learned lower Court held that since Lata and Mahi who are alleged to have given this information of kidnapping to P.W. 2 have not been examined, that since P.W. 2 did not mention the names of the witnesses to the occurrence in the F. I. R. or in his 161, Code of Criminal Procedure statement before the Police; that the seizure of the Garias has not been deposed to by independent witnesses; and that there was contradiction between the statements of P.Ws. 3, 4 and 5 with respect to the presence of certain persons of village Kamina, the prosecution has not proved its case beyond doubt and hence gave benefit of doubt to the Respondents and acquitted them. It is now for consideration if this acquittal can stand scrutiny.

So far as Respondent Rahasa is concerned, he is of another village and not connected with Sapana or Basistha. The only evidence against him deposed to by P.W. 6 is that he came to the spot from an opposite direction. No overt act has been attributed to him. In the Circumstances, I would hold that the prosecution has not been able to make out a case against him and as such is entitled to acquittal.

The rest of the judgment is confined to Respondents 2, 3 and 4. That Respondent No. 2 is the father of Respondent No. 3 is not challenged. Respondents 2, 3 and 4 belong to village Padmapur. P.Ws. 7 and 8 are also of village Padmapur. The F. I. R. gives the reason for the incident in that Sapana had a son named Satia. There was a proposal of marriage between P.W. 6 and this Satia who died about 3 weeks before the occurrence.

Sapana suggested that the girl should be given in marriage to his second son Basistha. P.W. 2 did not agree to this and therefore the Respondents 2, 3 and 4 committed this crime to finalise the marriage of P.W. 6 with Basistha (Respondent No. 3).

This being a case of kidnapping the vital question for consideration is the age of the girl. The doctor (P.W.1) has stated that she would be within the age range of 13 to 15 by the date of occurrence. The girl stated while deposing that she had not attained puberty by the time of occurrence and by the time of deposing in Court she had attained puberty a year back. The learned lower Court had accepted the evidence that the girl was a minor and below 18 by the time of occurrence. There is no challenge to this end therefore it can be safely accepted that the girl by the time of occurrence was a minor. The next question for determination is if really she had been kidnapped in the manner alleged or it was a cock and bull story put up by the prosecution. As to that the witnesses are P.Ws. 3, 4, and 6. Coupled with it was the circumstantial evidence, namely, the Panchayat that was held in course of the day; the clearance given by the Panch under Ext. 3 for filing a complaint; the seizure of the two Garias (Ext. 2); and the subsequent development of the case resulting in lodging of the F. I. R. and investigation. The learned lower Court has not at all referred to the evidence of the victim girl (P.W. 6). He has discussed the evidence of the witnesses 3, 4 and 5 in para 8 of his judgment and has finally rejected their evidence on the ground that there was discrepancy in their statement as to whether some people of Kamina were there in the stream at the time of this occurrence. Suffice it to say, this is hardly a ground to discard the evidence of those three witnesses. P.W. 3 has stated how during midday on a Thursday in the month of Chaitra while P.W. 6 was with two Garias in the river, the accused persons took her away and on his protest he was threatened. He has also referred to how Satia the son of Sapana had died unmarried and there was a proposal for his marriage with P.W. 6. P.W. 4 similarly stated how the girl was taken away by force from the place of bathing and while he protested he was threatened also.

In cross-examination he stated that his house is about half a mile from the river in question; that he had seen the occurrence from a distance of 100 cubits from the river bank. This witness has in cross-examination stated that some people of Kamina were taking bath at some distance from the place where Jamuna was and that would be about 100 to 120 cubits. This fact has not been referred to by P.Ws. 3, 5 and 6. That is the reason why the learned lower Court discarded the evidence of these three witnesses, namely, P.Ws. 3. 4 and 5. P.W. 5 is a boy below 12 years, but capable of deposing in Court and stated how Jamuna (P.W. 6) was kidnapped and he was threatened with assault. P.W. 6 gives a graphic description as to how she was forcibly taken to the house of Sapana where she was kept confined and how finally she was rescued. She also stated about her age and her education. She deposed how accused Sapana had a son named Satia who had recently died. She, however, denied the suggestion that there was a proposal of her material with Satia. What is significant is that a suggestion was put to the witness thus:

It is not a fact that my father had received any price for giving me in marriage.

This inevitably indicates as though the father of P.W. 6 had received some consideration towards giving his daughter in marriage to Satia" It may be that the girl might not be knowing it or she felt shy of disclosing it. But that does not by itself knock out the bottom of the prosecution case. P. ws. 7 and 8 though respectable witnesses of Padmapur, sat in the Panch to decide the matter, gave clearance (Ext. 3), turned hostile and pretended to state that they had blindly signed Ext. 3 as well as Ext. 2 which is hardly believable. Evidently they were going to support the defence as would be clear on a perusal of their statement vis-a-vis Exts. 2 and 3. P.W. 9 is the investigating Officer who supported the prosecution case regarding rescue of the girl and seizure of two Garias. The learned lower Court has dealt with the motive aspect of the case as given in the "F. I. R. which is denied by P.W. 2 in Court and that is the reason why the learned lower Court takes P.W. 2 to be a witness who is not reliable. True it is in the F. I. R. that the motive for commission of the crime is a refusal of P.W. 2 to give his daughter in marriage to Basistha in place of Sapana''s first son who was dead. That has been no doubt denied by P.W. 2 in evidence. I do not think that will be a valid reason to hold that the police at the instance of P.W. 2 has cooked up a false case as suggested to the Investigating Officer. It may be that P.W. 2 did not like the idea of giving his daughter in marriage to Basistha and so suppressed the suggestion that at one time he had agreed to give his daughter in marriage to other son of Sapana. To support the prosecution case the two Garias with which the girl had been to the stream have also been recovered under seizure list (Ex. 2). True P.Ws. 7 and 1 who are witnesses to the seizure have not supported the prosecution case. But all these things cannot be taken to be stage-managed to rope in the three Respondents at the connivance of the Investigating Officer particularly involving the modesty of an unmarried girl, no matter to whatever society she belongs. Taking an over-all picture of the prosecution case, the evidence oral, documentary as well as circumstantial, there seems to be a ring of truth about it which has been very much deposed to by p w. 6. In a particular case it is not the number of witnesses that count but the worth of their evidence. There is no reason why P.W. 6 an unmatured girl would falsely implicate unknown persons like Respondents 2, 3 and 4 and at the cost of her chastity. She belongs to the scheduled caste (Harijan) and there is no reason why P.W. 9 would go out of his way to support the case of the prosecution and involve the Respondents in this crime. That apart as I have already discussed, there is unimpeachable evidence of P.Ws. 3, 4 and 5 who are independent and it has been corroborated by documentary evidence like Exts. 2, 3 and 3 and circumstantial evidence. The judgment is very vulnerable and the grounds advanced in para 12 of the judgment are not sound enough to justify the finding that "It would be unsafe to come to a conclusion that the occurrence as alleged by the prosecution he really taken place, and therefore, the accused persons are entitled to the benefit of doubt."

In the result, therefore, I would partially accept this appeal, set aside the acquittal of Respondents 2, 3 and 4 and convict them u/s 366/34. Indian Penal Code and sentence them to undergo rigorous imprisonment for one year and six months each. The appeal against Rahasa Naik fails and is hereby dismissed. Respondents Sapana Rajahansa, Basistha Rajahansa and Dapha Rajahansa are to surrender to their bail bonds to undergo the sentence as indicated above and Respondent No. 1 Rahasa Naik be released from the ball bond.

Appeal allowed in part.