PRAFULLA KUMAR JENA Vs. THE STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner was tried in the Court of the Assistant Sessions Judge. Keonjhar for having committed an offence under Section 366, Indian Penal Code. The allegation against him was that he kidnapped P.W. 2 Basanti, a minor daughter of Shyamsundar Naik (P.W. 1) at about 9 p.m. in the night of 16th June, 1978 with the intention that she may be compelled to marry against her will. Another accused Ananta Charan Jena who happens to be the sister's husband of accused Petitioner Prafulla Kumar Jena was also tried under Sections 366/109, Indian Penal Code for abetment of the said offence of kidnapping. Ananta Charan Jena was acquitted by the Assistant Sessions Judge, but the Petitioner was convicted under Section 363, Indian Penal Code and sentenced to undergo R.I. for three years. An appeal against the aforesaid order of conviction and sentence was preferred in the Court, of the Additional Sessions Judge, Keonjhar, who maintained the conviction but reduced the sentence to six months' R.I. This revision has been filed against the above order of conviction and sentence passed against the Petitioner.

(2.) THE case of the prosecution is that Basanti P.W. 2 who was a minor on the date of occurrence was living with her father (P.W. 1), her, mother and three brothers and three sisters. The Petitioner was a primary school teacher in the village. On the first day of Raja festival i.e. on 14 -6 -1978 (one day prior to the occurrence) P.W. 1 with his wife and his eldest son went to the village where their eldest daughter had married leaving P.W. 2 in charge of the house and other younger sons and daughters. On the second day of Raja i.e. on 15 -5 -1978 the occurrence took place. On returning on the next day third day of Raja P.W. 1 learnt that Basanti was missing since the previous night. He thereafter searched for his daughter, but as he could not find her he lodged F.I.R. (Ext. 1) at Ghatgaon P.S. on 21 -6 -1978. On 23 -6 -1978 Basanti was found in the house of Ananta Charan Jena (since acquitted). P.W. 6 the constable brought her to the police station and on 27 -6 -1978 the accused Petitioner was arrested. The girl was examined by the Lady Assistant Surgeon, Keonjhar (P.W. 4) and also by the Radiologist (P.W. 5) to ascertain her age. According to the doctors the age of the girl was between 14 and 16 years. Thereafter the accused was charge -sheet and tried in the Court of the Assistant Sessions Judge. In the trial Court seven witnesses have been examined. P.W. 1 is the father, P.W. 2 is the victim girl, P.W. 3 is a witness who stated about P.W. 2's going with the accused and another in a bus, P.Ws. 4 and 5 are the doctors, P.W. 6 is the constable and P.W. 7 is the I.O. The learned Assistant Sessions Judge after considering the evidence found the girl to be minor and held the Petitioner guilty under Section 363, Indian Penal Code.

(3.) P .W. 1, the father of the victim girl, has no personal knowledge as to how his daughter P.W. 2 left his house. Admittedly he his wife (mother of the victim girl) and eldest son were absent and the victim girl was in charge of the house and the minor children. According to his evidence -in -chief the girl was 16 years of age when she was kidnapped. But in cross -examination he has stated that his youngest son Dutia was admitted in the primary school about 4 or 6 years back. He (Dutia) successively failed in Class I for three years and in Class II for three year. So it was pointed out that at the time of occurrence Dutia was 12 to 13 years old. P.W. 1 further stated that his another son Rusia is four years older than Dutia and another son who was four years older than Rusia is dead and Basanti was four years older than the said deceased son. So calculating from the above it could easily be seen that the age of Basanti at the time of occurrence would be much more than l8 years and would be about 21 years. This statement appears to be somewhat confusing and the Courts below have not accepted this evidence of P.W. 1. P.W. 4 the Lady Assistant Surgeon opined that Basanti was aged about 14 to 16 years approximately. She came to this conclusion on the basis of the developments of the secondary sexual characters and other features such as eruption of teeth, development of breasts, axillary and public hair and appearance. She has agreed in cross -examination that the age may vary depending upon nutrition diet and standard of living. Her report was marked as Ext. 3. P.W. 5 is the doctor who conducted ossification test by taking x -ray plates of different parts of the body of P.W. 2. According to him, the girl would be between 15 and 161/2 years of age. He also agreed that the finding as to age may vary depending upon climate, diet and heredity. From the evidence discussed above there may be some doubt about the age of the girl at the time when she was kidnapped. Since both the Courts have found that the girl was below 18 years of age. I do not consider it proper to differ from their finding. It is in the evidence of P.W. 1 that all the elderly members of the family had gone out keeping P.W. 2 in charge of the house and the younger children of the family. From the evidence on record it is however clear that P.W. 2 was on the verge of attaining majority and had attained the age of discretion.