PURNA CHANDRA JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) While the prosecution came out with a story that the appellant Lambodar and his brother-in-law Purnachandra, who figures as the other appellant, had been driven away from the service of Ganeswar Pati (P.W. 1) because of their indecent behaviour towards his daughter Gourimani (P.W. 3) and having kept a grudge, the two appellants kidnapped and abducted Gourimani alias Kummani, the minor daughter of P. W. 1 from the lawful guardianship of her parents during the night of August 7/8, 1979 while she had gone out of the home to ease herself at about 3 a.m. and was ultimately being forced to marry the appellant Lambodar for which steps had been taken for registration of the marriage before the Sub Registrar, Balasore, which was thwarted by the timely efforts of her father and ultimately Gourimani was rescued from the house of the appellant Lambodar in pursuance of an order passed by the District Judge in a proceeding under the Guardians and Wards Act on September 11, 1979 where after she remained under the care and custody of her father, the case of the defence was that, while the two appellants were serving under the father of the girl Gourimani, who was being ill-treated by her parents, Gourimani left the house of her parents and came to stay with the appellant Lambodar who married her and a false case had been foisted against the two appellants who had been charged for kidnapping and abduction-the appellant Lambodar having been charged for the substantive offences punishable under sections 363 and 366 of the Indian Penal Code (for short, Tthe Code) and the other appellant Puma Chandra for abetment of the commission of the two offences by the application of section 114 of the Code. The prosecution had examined eight witnesses to establish the charge and six witnesses had been examined for the defence to substantiate the case put forward by it. Mr. R.S.P. Patnaik, the learned Assistant Sessions Judge, Balasore accepted the case of the prosecution, held both the appellants guilty of the charges and convicted them. The appellant Lambodar was sentenced to undergo rigorous imprisonment for a period of two years under section 363 and for a period of eight years under section 366 of the Code with a direction that the sentences would run concurrently and the other appellant was sentenced to undergo rigorous imprisonment for a period of one year under section 363 read with section 114 and for a period of four years under section 366 read with section 114 of the Code with a direction that the sentences would run concurrently. It is thus that the matter has come up in appeal to this Court.

(2.) Mr. G.N. Mohapatra, appearing for the appellants, has submitted on the basis of the evidence adduced by both the sides that neither of the two charges had been brought home to any of the appellants. Mr. A. Rath, the learned Additional Standing Counsel, has submitted and very fairly so, that the charge of kidnapping from the lawful guardianship cannot be said to have been established in the absence of clear and clinching evidence from the side of the prosecution that Gourimani was under eighteen years of age at the time of the occurrence. As regards the other offence, the learned Additional Standing Counsel has left the matter for the consideration of this Court and has submitted that the order of conviction in that regard may be sustained although the victim had made prevaricating statements at different stases. The learned counsel for both the sides have justifiably contended that without materials on record justifying such a conclusion, the trial court has unreasonably observed that the two doctors (P.W. 6 Dr. Kalpana Dey and P.W. 8 Dr. Prafulla Kumar Kar) seem to have made statements in order to help the defence and that evvn the Investigating Officer, belonging to the same Pana caste as the two appellants, had helped them in the course of investigation. In my view, the court was not justified in drawing such unwarranted inferences. True it is that while submitting the charge-sheet, the Investigating Officer had not named the victim Gourimani as a witness which, as explained by him in his evidence, was owing to over-sight, but from this omission coupled with the fact that the name of the Radiologist had also not been mentioned as a witness in the charge-sheet, no inference could be drawn that the Investigating Officer had intended to support the cause of the defence. After all, if the Investigating Officer had any real intention to support the defence and had directed his investigation that way, he would not expose himself by not naming the victim as a witness in the chargesheet. If for some reason, the Investigating Officer felt that the evidence of the Radiologist would not be very material ill the course of the trial and he omitted his name, an inference could not readily be drawn that his investigation had been actuated with mala fides. The learned Assistant Sessions Judge has observed in the body of the judgment that some highly placed persons in the administrative hierarchy had been attempting to help the defence right from the stage of investigation and also during the trial and had influenced the witnesses without naming who [hey were. Did the trial Judge have any personal knowledge about such matters? If he had it was not fair that he should have taken up the trial himself. If he had not, he ought not to have made such remarks against public officers including two doctors. A court is to judge the strength of the case of the prosecution on its evidence and not by drawing unwarranted inferences in its favour. A court is concerned with practical realities to be judged on the materials placed before it and not with fantastic possibilities.

(3.) A bare reading of the judgment would give an indication that the approach of the trial Judge was basically wrong. He had judged the case by adopting the theory of preponderance of probabilities as in a civil case by discussing the cases of both sides with reference to the evidence and in particular, by being influenced by the weaknesses in the evidence adduced from the side of the defence. This is opposed to the cardinal principles of criminal jurisprudence. No doubt, as has rightly been observed by the trial Court, the evidence from the side of the defence in support of its story was not impressive and the witnesses seemed to be belonging to a hostile faction some of whom had Strained relationship with Ganeswar (P.W. 1), but it was for the prosecution to establish its case by its evidence and not merely on the basis of some weaknesses or supposed weaknesses in the defence. If there is clear and convincing evidence from the side of the prosecution in support of its case, the falsity of the defence may lend some assurance to the case of the prosecution by being an additional link, but, by itself, it would not lead the court to a conclusion that the prosecution story must be true.