Biswanath Mallick Vs. State of Orissa - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - it is further stated that the evidence on record clearly shows that the victim had done with the accused on her own volition, and there was no compulsion for marriage. 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. anything which is like to allure the minor girl would be sufficient. the mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. if the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. evidence on record clearly shows that the girl was less than eighteen. the ingredients necessary to constitute an offence under section 361 have been clearly brought home against the accused i find no reason to accept the submission that the evidence is deficient to bring home the accusations. it is alternatively submitted by the learned counsel for the accused-petitioner that the occurrence took place about five years back in the meantime the accused and the victim girl are leading happy marital life, and it would not be proper to send the accused back to custody.ordera. pasayat, j.1. petitioner biswanath mallick (also referred to as 'accused' hereinafter) calls in question legality of his conviction for commission of offences punishable under sections 363/366 of the indian penal code, 1860 (in short, 'ipc') and sentence of two years' rigorous imprisonment and fine of rs. 100/-, in default to undergo two months' rigorous imprisonment on each count. the conviction and sentence as awarded by the learned assistant sessions judge, kendrapara were affirmed in appeal by the learned additional sessions judge, kendrapara. 2. prosecution version as unfolded during trial is as follows : on 9-12-1989, around midnight kalyani (p.w. 2) had gone out to attend call of nature. she was forcibly 'kidnapped by the petitioner, who took her first to cuttack subsequently to bhubaneswar and lastly to jeypore, information was lodged at the police station by kalyani's father baishnao (p.w. 1) on 1l-12-1989.duringinvestigationthe victim was rescued from house of one accused's relations and was given in the custody of her parents (p.ws.. 1 and 3). the victim girl and the accused were medically examined on police requisition. on completion of investigation, charge-sheet was submitted and the accused-petitioner faced trial. 3. the accused-petitioner pleaded innocence and stated that he was falsely implicated. 4. nine witnesses were examined to further the prosecution case. as indicated above, p.w. 2 is the victim and p.ws 1 and 3 are her parents. p.w. 7 is the doctor who examined the victim and the accused and p.w. 9 is the investigating officer. 5. on consideration of the evidence on record, the learned trial judge found the petitioner guilty, and convicted and sentenced him, which got seal of approval in appeal. 6. in support of the revision application, mr. s. s. das learned counsel for petitioner submitted that the age of the victim was more than 18 years, and in any event she had attained the age of discretion, and therefore, even if the stand taken by the informant that the age of the victim girl was 17 years 8 months and 7 days on the date of occurrence, the same is of little consequence. it is further stated that the evidence on record clearly shows that the victim had done with the accused on her own volition, and there was no compulsion for marriage. it was further submitted that the sentences awarded are also high. learned counsel for state on the other hand submitted that the courts below have elaborately analysed the evidence and while exercising revisional jurisdiction it is impermissible to make fresh assessment unless the conclusions are shown to be perverse and unreasonable. 7. so far as offences punishable under sections 363 and 366, ipc are concerned, it is necessary to note their essential ingredients, section 363 provides for punishment in case of kidnapping of any person from india or from lawful guardianship. kidnapping from lawful guardianship has been defined in section 361. essential ingredients of the said section are four in number, i.e., (i) taking or enticing away a minor or a person of unsound mind; (ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age if a female;(iii)the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; (iv) such taking or enticing must be without the consent of such guardian. if the girl is less than 18 years of age, it is immaterial whether the girl consents or not. the taking need not be by force, actual or constructive. there must be a taking of the child out of the possession of the guardian. the explanation to section 361 provides that the words 'lawful guardian' in the said section include any person lawfully entrusted with the care or custody of such minor or other person. the word 'take' means to cause to go, to escort or to get into possession. it implies want of wish and absence of desire of the person taken. there is, however, a distinction between taking and allowing a minor to accompany a person. the word 'entice' involves an idea of inducement or allurement by exciting hope or desire in the other. the inducement or allurement may 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 imperciptible, impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. the offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. the act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. enticement is an act of the accused by which the person kidnapped is induced of his or her own accord to go. to the kidnapper. it is not necessary that the taking or enticing should be shown to have been by means of force or fraud. enticement need not be confined to any single form of allurement. anything which is like to allure the minor girl would be sufficient. where the minor kidnapped is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen, or that from her appearance or conduct she appeared to have attained the age of eighteen. there is an essential distinction between taking and enticing. the mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. but the word 'entice' involves an idea of inducement or allurement. one does not entice another unless the latter attempts to do a thing which she or he would not otherwise do. 8. significantly the word 'possession' has not been used in the ipc, but the language used is 'out of the keeping, of the lawful guardian'. the word 'keeping' connotes the fact that it is compatible with independence of action and movement in the object kept. it implies neither apprehension nor detention but rather maintenance, protection and control, manifested not by continual action but as available on necessity arising. the word 'lawful' has been deliberately used in its wider connotation, and it is distinguishable from the word 'legal'. that has necessitated insertion of the explanation. 9. so far as section 366 is concerned, the essential ingredients are : (i) kidpnapping or abducting any woman; (ii) such kidnapping or abducting must be (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. the second part of the section requires two things. (1) by criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place; and (2) such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse, with some person. the word 'woman' has been defined in section 10. it includes a minor female. if the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. the intention of the accused is the basis and the gravemen of offence under section 366. the volition, the intention and the conduct of the woman do not determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted any woman and the intent of the accused is the vital question for determination in each case. 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. it consists of enticing or removing a girl from the keeping of the lawful guardian without her consent. abuduction is an offence as defined in section 362 when a person is by force compelled or by 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 in terms of section 363. abduction on the other hand is not punishable per se, and is punishable only when accompanied by a particular purpose as contemplated in sections 364 to 366. but as kidnapping also may be for the same purposes, sections 364 to 366 deal with both kidnapping and abduction for the purposes stated therein and prescribe the punishments. 10. in the case at hand the victim (p. w. 2) has nowhere stated that there was any intention for compulsion to marry against her will. by merely finding that the accused abducted or kidnapped the woman the charge under section 366 cannot be held to have been proved. it is further necessary to find that he abducted or kidnapped the woman for any of the purposes mentioned in section 366. in the absence of such finding the charge fails. in that view of the matter, the conviction' under section 366, ipc is not maintainable, and is accordingly set aside. consequentially the sentence awarded is vacated. so far as conviction under section 363, ipc is concerned, i find that the courts below have elaborately analysed the evidence and have come to a definite finding that the age of the victim girl was less than eighteen at the time of commission of offence. great emphasis has been laid on the evidence of the doctor who has stated that the girl may have 18 years of age at the time of her examination. the same is a statement relating to a probability, which may not have factually correct. evidence on record clearly shows that the girl was less than eighteen. the school records show her age to be so. the oral evidence of the parents is also to the similar effect. while exercising revisional jurisdiction it is impermissible to reassess the evidence. unless the conclusions are perverse or are of such nature that no reasonable man would arrive at such conclusions, or are contrary to material on record. this is not a case of that nature. conclusion of the courts below that the girl was less than eighteen is irreversible. the ingredients necessary to constitute an offence under section 361 have been clearly brought home against the accused i find no reason to accept the submission that the evidence is deficient to bring home the accusations. it is alternatively submitted by the learned counsel for the accused-petitioner that the occurrence took place about five years back in the meantime the accused and the victim girl are leading happy marital life, and it would not be proper to send the accused back to custody. considering aforesaid facts and period spent by petitioner in custody. i reduce the sentence to the period already undergone. the sentence of fine and default sentence are, however, maintained. the prayer for revision is allowed to the extent indicated above.

Judgment:
ORDER

A. Pasayat, J.

1. Petitioner Biswanath Mallick (also referred to as 'accused' hereinafter) calls in question legality of his conviction for commission of offences punishable under sections 363/366 of the Indian Penal Code, 1860 (in short, 'IPC') and sentence of two years' rigorous imprisonment and fine of Rs. 100/-, in default to undergo two months' rigorous imprisonment on each count. The conviction and sentence as awarded by the learned Assistant Sessions Judge, Kendrapara were affirmed in appeal by the learned Additional Sessions Judge, Kendrapara.

2. Prosecution version as unfolded during trial is as follows :

On 9-12-1989, around midnight Kalyani (P.W. 2) had gone out to attend call of nature. She was forcibly 'kidnapped by the petitioner, who took her first to Cuttack subsequently to Bhubaneswar and lastly to Jeypore, Information was lodged at the Police Station by Kalyani's father Baishnao (P.W. 1) on 1l-12-1989.Duringinvestigationthe victim was rescued from house of one accused's relations and was given in the custody of her parents (P.Ws.. 1 and 3). The victim girl and the accused were medically examined on police requisition. On completion of investigation, charge-sheet was submitted and the accused-petitioner faced trial.

3. The accused-petitioner pleaded innocence and stated that he was falsely implicated.

4. Nine witnesses were examined to further the prosecution case. As indicated above, P.W. 2 is the victim and P.Ws 1 and 3 are her parents. P.W. 7 is the doctor who examined the victim and the accused and P.W. 9 is the Investigating Officer.

5. On consideration of the evidence on record, the learned trial Judge found the petitioner guilty, and convicted and sentenced him, which got seal of approval in appeal.

6. In support of the revision application, Mr. S. S. Das learned counsel for petitioner submitted that the age of the victim was more than 18 years, and in any event she had attained the age of discretion, and therefore, even if the stand taken by the informant that the age of the victim girl was 17 years 8 months and 7 days on the date of occurrence, the same is of little consequence. It is further stated that the evidence on record clearly shows that the victim had done with the accused on her own volition, and there was no compulsion for marriage. It was further submitted that the sentences awarded are also high. Learned counsel for State on the other hand submitted that the courts below have elaborately analysed the evidence and while exercising revisional jurisdiction it is impermissible to make fresh assessment unless the conclusions are shown to be perverse and unreasonable.

7. So far as offences punishable under Sections 363 and 366, IPC are concerned, it is necessary to note their essential ingredients, Section 363 provides for punishment in case of kidnapping of any person from India or from lawful guardianship. Kidnapping from lawful guardianship has been defined in Section 361. Essential ingredients of the said section are four in number, i.e., (i) taking or enticing away a minor or a person of unsound mind; (ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age if a female;(iii)the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; (iv) such taking or enticing must be without the consent of such guardian. If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. The taking need not be by force, actual or constructive. There must be a taking of the child out of the possession of the guardian. The Explanation to Section 361 provides that the words 'lawful guardian' in the said section include any person lawfully entrusted with the care or custody of such minor or other person. The word 'take' means to cause to go, to escort or to get into possession. It implies want of wish and absence of desire of the person taken. There is, however, a distinction between taking and allowing a minor to accompany a person.

The word 'entice' involves an idea of inducement or allurement by exciting hope or desire in the other. The inducement or allurement may 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 imperciptible, impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. Enticement is an act of the accused by which the person kidnapped is induced of his or her own accord to go. to the kidnapper. It is not necessary that the taking or enticing should be shown to have been by means of force or fraud. Enticement need not be confined to any single form of allurement. Anything which is like to allure the minor girl would be sufficient. Where the minor kidnapped is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen, or that from her appearance or conduct she appeared to have attained the age of eighteen. There is an essential distinction between taking and enticing. The mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. But the word 'entice' involves an idea of inducement or allurement. One does not entice another unless the latter attempts to do a thing which she or he would not otherwise do.

8. Significantly the word 'possession' has not been used in the IPC, but the language used is 'out of the keeping, of the lawful guardian'. The word 'keeping' connotes the fact that it is compatible with independence of action and movement in the object kept. It implies neither apprehension nor detention but rather maintenance, protection and control, manifested not by continual action but as available on necessity arising. The word 'lawful' has been deliberately used in its wider connotation, and it is distinguishable from the word 'legal'. That has necessitated insertion of the Explanation.

9. So far as Section 366 is concerned, the essential ingredients are : (i) kidpnapping or abducting any woman; (ii) such kidnapping or abducting must be (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. The second part of the section requires two things. (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place; and (2) such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse, with some person. The word 'woman' has been defined in Section 10. It includes a minor female. If the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. The intention of the accused is the basis and the gravemen of offence under Section 366. The volition, the intention and the conduct of the woman do not determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted any woman and the intent of the accused is the vital question for determination in each case. 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. It consists of enticing or removing a girl from the keeping of the lawful guardian without her consent. Abuduction is an offence as defined in Section 362 when a person is by force compelled or by 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 in terms of Section 363. Abduction on the other hand is not punishable per se, and is punishable only when accompanied by a particular purpose as contemplated in sections 364 to 366. But as kidnapping also may be for the same purposes, Sections 364 to 366 deal with both kidnapping and abduction for the purposes stated therein and prescribe the punishments.

10. In the case at hand the victim (P. W. 2) has nowhere stated that there was any intention for compulsion to marry against her will. By merely finding that the accused abducted or kidnapped the woman the charge under Section 366 cannot be held to have been proved. It is further necessary to find that he abducted or kidnapped the woman for any of the purposes mentioned in Section 366. In the absence of such finding the charge fails. In that view of the matter, the conviction' under Section 366, IPC is not maintainable, and is accordingly set aside. Consequentially the sentence awarded is vacated.

So far as conviction under Section 363, IPC is concerned, I find that the courts below have elaborately analysed the evidence and have come to a definite finding that the age of the victim girl was less than eighteen at the time of commission of offence. Great emphasis has been laid on the evidence of the doctor who has stated that the girl may have 18 years of age at the time of her examination. The same is a statement relating to a probability, which may not have factually correct. Evidence on record clearly shows that the girl was less than eighteen. The school records show her age to be so. The oral evidence of the parents is also to the similar effect. While exercising revisional jurisdiction it is impermissible to reassess the evidence. Unless the conclusions are perverse or are of such nature that no reasonable man would arrive at such conclusions, or are contrary to material on record. This is not a case of that nature. Conclusion of the courts below that the girl was less than eighteen is irreversible. The ingredients necessary to constitute an offence under Section 361 have been clearly brought home against the accused I find no reason to accept the submission that the evidence is deficient to bring home the accusations. It is alternatively submitted by the learned counsel for the accused-petitioner that the occurrence took place about five years back in the meantime the accused and the victim girl are leading happy marital life, and it would not be proper to send the accused back to custody. Considering aforesaid facts and period spent by petitioner in custody. I reduce the sentence to the period already undergone. The sentence of fine and default sentence are, however, maintained.

The prayer for revision is allowed to the extent indicated above.