HIGH COURT OF ORISSA, CUTTACK JAILCRIMINAL APPEAL NO. 14 OF 2002 From the judgment dated 10.09.2001 passed by Smt. Basanti Devi, Additional Sessions Judge, Baripada in S.T. No. 9/80 of 2000. ……… Dudugu Hembram ……… Appellant Versus. State of Orissa ……… Respondent For Appellants : Mr. Rabindranath Nayak. For Respondent : Mr. S.K.Nayak. Additional Government Advocate. ……… PRESENT : THE HON’BLE MR. JUSTICE D.DASH ------------------------------------------------------------------------------------------------------- Date of hearing : 24.01.2014 : Date of judgment : 14.02.2014 This Jail Criminal Appeal has been preferred challenging an order of conviction and sentence passed by the learned Additional Sessions Judge, Baripada in S.T. Case No-9/80 of 2000. The appellant having faced trial for offence U/s.366/376(2) (f) and 506 of I.P.C has been convicted for offence under Section 366 of I.P.C while being acquitted of the other charges followed by sentence of rigorous imprisonment for a period of 5 years and payment of fine of Rs.500/- with - 2 - default stipulation to undergo rigorous imprisonment for 30 days with usual order of set off. 2) Prosecution case in short is that on 19.12.1999 evening victim girl, aged about 10 years (P.W.10) had gone to their paddy field when the appellant forcibly kidnapped her from there. It is stated that the appellant took her to the nearby Sabai grass field and made her lie on the ground and forcibly committed sexual intercourse by removing her 'Chadi pant' and after lifting the skrit. It is also the case of the prosecution that appellant then took P.W.10 to his house, kept her confined till 21.12.1999 and had also raped her during the period on two occasions. On 20.12.1999 the mother (P.W.2) and uncle of the victim (P.W.4) had been to the house of the appellant at village Kasipur. The appellant then being asked denied his knowledge about the whereabouts of the victim. During then he is stated to have given threat to take away their life by using bow and arrows. P.W.2 thereafter through her brother-in-law, Ramachandra Hembrum presented a report at Baripada(S) P.S which necessitated the registration of a case followed by commencement - 3 - of investigation. On completion of investigation, charge-sheet was submitted placing the appellant for trial U/s.366/376 (2) (f)/506 of I.P.C. 3) During trial the appellant banked upon the plea of complete denial by specifically taking a plea that the victim P.W.10 is more than 20 years of age and she being in love with him had voluntarily gone to his house following him after being assaulted by her mother and uncle and thereafter it is also the case of the appellant that they had married according to their caste and custom. Thus, it is said that the case been falsely foisted against him to harass him. 4) During trial, prosecution has examined altogether 11 witnesses. P.W.10 is the victim, P.W.2 is the mother of the victim whereas P.W.4 is her uncle, P.W.1 is another daughter of P.W.2 and sister of the victim. The Head Mistress of Sankhbhanga UG School, where the victim was said to be having her schooling, has been examined as P.W.7. The Asst. Teacher of the said school has been examined as P.W.8 being a witness to the seizure of the - 4 - admission register (Ext.9) containing the relevant entry regarding the admission of the victim in the said school (EXt.8). When P.W.2 and P.W.4 had gone to the house of the appellant one co-villager of the accused had accompanied and he has been examined as P.W.9. P.W.2, P.W.3 and P.W.5 are the witnesses to the seizure of the wearing apparels of the victim marked as MO-II and MO-III and as the signatories to the seizure list Ext.1 and Ext.2. The doctor who had examined the accused has been cited as a witness and examined as P.W.6 whereas the doctor examining the victim has been cited as P.W.6. At the end, prosecution has examined the Investigating Officer as P.W.11. From the side of the defence two witnesses have been examined who are the co-villagers as D.W.1 and D.W.2. 5) Learned Additional Assistant Sessions Judge on analysis of the evidence of all the witnesses and also the documents admitted into evidence from the side of the prosecution such as FIR, seizure list, medical report and the school admission register has found the prosecution to have not been - 5 - able to establish the charge U/s.376(2)(f) and Section 506 of I.P.C. while finding the appellant guilty for commission of offence U/s.366 of I.P.C for kidnapping the minor girl with intent of forcefully marrying her and thereby seducing her to have illicit intercourse. 6) Learned Counsel for the appellant submits that the trial court did commit error by holding the appellant guilty of offence U/s.366 of I.P.C as there remains no acceptable evidence that it is the appellant who had forcibly taken the victim, P.W.10 and had removed her from the custody of her lawful guardian. It is also his submission that the evidence of victim P.W.10 when considered with all other surrounding circumstances and also the evidence of her mother P.W.2 and uncle P.W.4 etc. the prosecution case as projected can't be believed for a moment. Thus according to him there has been failure on the part of the prosecution to establish the accusation concerning the charge U/s.366 of I.P.C. Therefore, he urges that the finding of guilt as recorded by the trial court is liable to be set aside and consequently the order of conviction and sentence there under are unsustainable. - 6 - Learned Additional Government Advocate refuting the above submission while supporting the finding of the trial court submits that the trial court has taken a lot of pain in going for a detail analysis of the evidence of the victim, her mother, uncle and other P.W's and then viewing the same with all other circumstances which have emanated during the trial has rightly come to a conclusion that it is the appellant who had forcibly kidnapped P.W.10 with a view to force her to marry him and in that way to compel her for illicit intercourse knowing fully well that she had not attained the majority. Therefore, he urges that the finding of the trial court on the above score is unassailable and the appeal at the instance of the appellant is devoid of any merit. 7) Keeping the above rival submission in mind before going to approach the evidence and analyse the same in the touch-stone of the settled position of law in that regard to test the sustainability of the finding of trial court, it is worth while to mention that the State has not preferred any appeal as also the submittedby the learned Government Advocate against the order - 7 - of acquittal recorded by the trial court in respect of offence U/s.376(2)(f) and Section 506 of I.P.C. 8) The trial Court has first formulated the point for determination as regards the age of the victim. As per the prosecution case victim was aged about 10-11 years. Upon discussion of the evidence of P.W.10, the victim, taking into account the relevant entry in the school admission register Ext.8 and considering the rival submission, the trial court has arrived at a conclusion that the victim at the relevant time was aged about 12 years of age. It is the specific case of the defence that she was around 20 years at the relevant time. P.W.10 in her evidence stated that her date of birth is 18.4.1988 and that has been indicated in the relevant entry of the school admission register of Sankhabhanga UG School made on 30.8.1993 when she was admitted in Class-I. P.W.7 the Head-Mistress of Sankhabhanga U.G. School has proved the same entry stating that it had been provided by her father. This entry corroborates the version of the victim. It has been held in several decisions of the Hon'ble Supreme Court and our own High Court that - 8 - generally the parents used to understate the age of their children while putting them in school, keeping in mind their future prospect and benefit. But this position is not universal and there remains exception. It may be seen here that the parties hail from rural background and are the members of Scheduled Tribe residing in a scheduled district. It is also seen that they are not highly educated. So, the matter can't be approached keeping in mind that the tendency to understate the age at the time of admission in the school was with them. The above state of affair being there in the evidence of the victim supported by the document, now the mother and uncle also have stated the age of the victim to be 11-12 years. There is not much of variance in such evidence of those guardians of the victim about the age of victim as can be seen on computation basing on the entry made in Ext.8. That apart, there remains no such other material to entertain any doubt as regards the version of the mother and uncle of the victim about the age. In view of this, the trial court having arrived at a conclusion that the victim was aged about - 9 - 12 years at the relevant time is found to be just and proper and no such justifiable reason appears to hold otherwise, further more when the defence version is not acceptable. 9) Next comes the question with regard to the sustainability of conviction recorded against the appellant for offence U/s.366 of I.P.C. So, for the purpose, first of all let us have a glance at the evidence of P.W.10 the victim who in this regard is the important witness and her evidence matter the most. It has been stated by her that while returning from their land around 5 P.M on 19.12.1999, the appellant forcibly took her to a nearby bushy area and there having committed sexual intercourse took her to his house. It has been stated by P.W.1 the sister of the victim that at the relevant time she had seen the appellant catching hold of her sister when her sister was crying and then he took her sister to the bushy area. P.W.10's evidence remains that the appellant came, caught hold of her and dragged her to the nearby bushy area and after committing rape there, she was taken by the appellant to his house and was kept by the appellant in one room of his house where other relations - 10 - were also residing in another room. According to her evidence, police rescued her two days thereafter. The trial court has disbelieved version about commission of rape by the appellant entertaining doubt in the veracity of the testimony of P.W.1 who is a child witness; the absence of seminal stain on the skirt of the victim (M.O.-I), though asserted by P.W.10, no-approach being made by P.W.2 and P.W.4 to the Ward-Member of the village of the appellant; non disclosure of P.W.10 about the factum of rape immediately after being rescued as well as lack of medical corroboration although it is stated by P.W.10 that she was having bleeding from vagina and to have sustained injuries on different portions of her body having negative impact on the prosecution case of rape and militating the case of rape. On careful analysis of all these, I find no such compelling reason to record any disagreement with the same. However, so far taking away of the victim is concerned, the evidence of victim P.W.10 is not shaken in any manner. When all through she has stated that the appellant forcibly took her and kept confined there in a room, the same also finds support from the evidence of - 11 - D.W.2 that the appellant had brought her to his house as his wife. The trial court therefore appears to have rightly taken note of the fact looking at the age of the victim as 12 years that it is not unnatural for the girl to be afraid of utilization of force upon her when the age was not such that the victim was having sufficient maturity in life in understanding things properly. It is her evidence that she was kept confined in a room from 19.12.1999 till 22.12.1999. The I.O. P.W.11 says to have rescued the victim from the house of the appellant which remains unchallenged. This also finds support from the evidence of D.W.1 and D.W.2 that the victim was residing in the house of the appellant as wife. Statement of the victim U/s.164 of Cr.P.C also remains on that score which corroborates her evidence. So, ignoring the evidence of P.W.1 and P.W.10 with regard to the rape and not accepting the same, the other part relating to the age and the kidnapping of victim as stated appears to have been rightly accepted as there stands no impediment for doing so. In view of all these aforesaid discussion, I am of the considered view that the trial court’s finding on the factum of kidnapping that it was for the - 12 - purpose of compelling to marry the appellant is believable as admittedly the girl was a minor and there was no business on the part of the appellant to keep her confined in a room, when it is not forthcoming in evidence that prior to the incident they were freely roaming leading to drawal of inference that they had prior acquaintance or love affairs whatever the case may be to hold otherwise. Thus I find no justifiable reason to interfere with the order of conviction of the appellant under Section 366 of I.P.C. within the parameters as aforesaid and the same is hereby confirmed. The quantum of sentence in the facts and circumstances of the case also appears to be just and proper and commensurate with the same. 10. In the wake of aforesaid, the appeal stands dismissed. ………………………… D. Dash, J. Orissa High Court, Cuttack The 14th February, 2014/Routray