State of Orissa Vs. Naresh Chandra Barik and Four ors. - Court Judgment

Excerpt:
criminal - kidnapping and rape - age proof - sections 366, 376 and 368 of indian penal code (i.p.c) - accused kidnapped victim and committed rape on her - f.i.r lodged after 15 days of occurrence of offence - charge sheet under section 366, 368 and 376 filed against accused - trial court after assessing evidence on record opined that victim was aged more than 16 years at time of occurrence and she had love affair with accused and voluntarily left her parent's house and cohabit with accused - trial court acquitted accused - hence, present appeal -witness stated that accused and victim was having love affair prior to occurrence - delay in f.i.r not satisfactorily explained - victim voluntarily accompanied accused - question of kidnap does not arise - appeal dismissed - 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. - that she had love affairs with accused naresh chandra barik; since prosecution failed to prove the allegation of kidnapping or abduction against the main two accused, namely naresh chandra barik and satrughana ojha, consequently the other three accused persons were also acquitted. 6) deposed that there was love affair between accused naresh chandra barik and the victim prior to occurrence. a number of love letters written by the victim to accused naresh chandra barik were seized and proved vide ext. as per the prosecution case the alleged victim was carried to different places by accused naresh chandra barik from 10.10.90 to 23.11.90. if the victim was not willing to move with him she could have very well returned to her house, but she did not do that. so, it cannot be sad that accused naresh compelled p. according to the trial court when there was deep love between p. failed automatically the offence under section 368 i. his evidence before the trial court for the first time was not safe to be relied upon.r.n. biswal, j.1. this appeal is directed against the judgment and order dated 27.4.1992 passed by the asst.sessions judge, anandapur in s.t. case no. 19/103 of 1991 acquitting the accused persons of the charge under sections 366/376/368 of i.p.c.2. the case as unfolded by prosecution is that on 10.10.90 at about midnight accused naresh chandra barik along with accused satrughan ojha kidnapped the victim, a girl aged about 14 years from her house to compel her to marry with accused naresh chandra barik. they kept her confined in different places including the house of other 3 co-accused and committed rape on her in village kachara sahi. the parents and other family members searched for the alleged victim girl and came to know that she had been kidnapped by the above named two accused persons to compel her to marry accused naresh chandra barik, but the father of the victim could not report this incident at the police station immediately, because of death of his father and for his own illness. however, after he came round, on 25.10.90 he reported the incident in writing before the o.i.c., ghashipura p.s. (p.w. 10) which was treated as f.i.r. as the allegation contained in the f.i.r. revealed a cognizable case, i.o. registered the case and took up investigation. in course of investigation he examined the witnesses, seized some material objects and on 12.1.91 the c.i. of police, anandapur (p.w. 12) took charge of investigation of the case from him. after completion of investigation p.w. 12 submitted charge sheet under sections 366/376 of i.p.c. against accused naresh chandra barik and satrughana ojha and under section 368 against the other accused persons, whereunder they faced trial before the asst. sessions judge, anandapur. in order to establish its case prosecution examined 15 witnesses, whereas accused persons examined 4 witnesses to prove their innocence. after assessing the evidence on record, the trial court held that the victim was aged more than 16 years at the time of occurrence; that she had love affairs with accused naresh chandra barik; that she voluntarily left her parent's house and cohabited with him and that accused satrughana ojha did not commit any rape on her. since prosecution failed to prove the allegation of kidnapping or abduction against the main two accused, namely naresh chandra barik and satrughana ojha, consequently the other three accused persons were also acquitted.3. being aggrieved with the said order of acquittal, the state has preferred the present appeal, as mentioned earlier.4. p.w. 3, the maternal uncle of the alleged victim (p.w. 6) deposed that there was love affair between accused naresh chandra barik and the victim prior to occurrence. on 11.10.1990 he found p.w.6 and accused naresh in village nahankul. despite his persuasion not to marry accused naresh, p.w.6 went to a temple at village nahankul, brought a garland and told to marry accused naresh by garlanding him. a number of love letters written by the victim to accused naresh chandra barik were seized and proved vide ext. a series. as per the prosecution case the alleged victim was carried to different places by accused naresh chandra barik from 10.10.90 to 23.11.90. if the victim was not willing to move with him she could have very well returned to her house, but she did not do that. as transpires from the evidence of p.w. 8, on 11.10.90, when p.w. 6 and accused naresh were there in his house, about 50 persons of kachara sahi came to his house and took p.w. 6 to ananta basudev temple at kachara sahi. it transpires from the evidence of p.ws.3 and 7 that they married there in presence of a number of persons. so, it cannot be sad that accused naresh compelled p.w.6 to marry him. the alleged victim voluntarily accompanied accused naresh chandra barik to different places and married him of her own accord. if there was any physical relationship between naresh chandra barik and the victim, it was with her consent. once it is held that p.w.6 accompanied accused naresh of his own accord, the allegation of kidnapping against accused satrughana also fails. the trial court did not accept the evidence of p.w.6 that accused satrughana ojha committed rape on her, while she was at kachara sahi. according to the trial court when there was deep love between p.w. 6 and accused naresh chandra barik, the latter would not have tolerated satrughana ojha committing rape on his beloved. in my considered opinion, the trial court rightly held so. once the offence under section 366/376 of i.p.c. failed automatically the offence under section 368 i.p.c. could not be attracted against the other three accused persons.5. learned addl.govt. advocate submitted that, even if, it is held that p.w. 6 voluntarily accompanied accused naresh chandra barik and satrughana ojha to different places and accused naresh cohabited with her on her consent, still then the offence under sections 366/376 i.p.c. would be attracted against accused naresh and the offence under section 366 i.p.c. against accused satrughana ojha, since the age of p.w. 6 was 14 years during the time of occurrence. on the other hand learned counsel appearing for the accused-respondents submitted that since the trial court held and rightly so, that the age of the victim was more than 16 years at the time of occurrence and she voluntarily accompanied accused naresh, neither of the above two accused persons can be fastened with any criminal liability.6. in view of the rival submissions of the counsel for the parties, now it is to be examined, whether the age of the victim was more than 16 years at the time of alleged incident. according to the evidence of p.ws.1 and 2, the father and mother of p.w. 6, the age of p.w. 6 was 14 years at the time of alleged occurrence. p.w. 9, the headmistress of salapada baitarani girl's high school stated that the victim was admitted in class viii of her school on 18.7.88 and her date of birth was 10.2.1976 as per ext. 5 of the admission register. the date of birth was recorded on the basis of the school leaving certificate of alati l.p. school. p.w. 13 the headmaster of said l.p. school stated that the date of birth of the victim was 18.2.1976 as found from the school admission register. so there is inconsistency with regard to date of birth, in the admission registers of the two schools. moreover, many guardians in india reduce the age of their wards while getting them admitted in the school. p.w.14 who claimed to be an astrologer stated that he prepared the horoscope of the alleged victim and as perthe horoscope her date of birth is 18.2.1976. this witness did not state before the i.o. about the preparation of horoscope, m.o.xii. his evidence before the trial court for the first time was not safe to be relied upon. as per evidence of p.w. 15, the radiologist of the district headquarters hospital, keonjhar, age of the victim was 14 to 16 years as determined on ossification test. the age determined by ossification test may vary by two years on either side. so the trial court held that age of the victim was more than 16 years at the time of alleged occurrence. d.ws. 1 and 2 also deposed that the victim was aged more than 16 years at the time of occurrence. so, the trial court rightly held that the age of p.w. 6 was more than 16 years at the time of occurrence. even though she was below 18 years of age, since she had attained the age of discretion at the time of alleged incident and voluntarily went with accused-respondent naresh and satrughana, it can not be said that they kidnapped or abducted her.7. as stated earlier f.i.r. was lodged after 15 days of the alleged incident. p.w. 1, the informant deposed that he could not report the incident earlier due to death of his father and due to his personal ailment, but it was elicited from him during cross examination that his father expired on 17.11.90, so the occurrence having been taken place on 10.10.90. p.w. 1 could have lodged the f.i.r. earlier. there is also no document to show that in fact p.w.1 was suffering from any ailment during the relevant period. so the delay in lodging the f.i.r. was not satisfactorily explained.8. it is the established principle of law that if the view taken by the trial court is plausible one, the appellate court should not interfere with it, even if another view was possible. the view taken by the trial court, in the present case is plausible one, moreover, the alleged incident took place on 10.10.90, the accused-respondents faced the ordeal of trial till 27.4.92, when the judgment was pronounced. this present appeal is pending since 1993.9. under such premises, i am not inclined to set aside the order of acquittal passed by the trial court and as such the appeal stands dismissed.