DUTTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The revision is directed against the order passed by the learned Sessions Judge, Berhampur confirming the order of conviction of the petitioners under Ss. 143 and 363, I.P .C. passed by the learned Assistant Sessions Judge, Phulbani.

(2.) The prosecution case is that Baseli Pradhan (P.W.2) aged about 17 years was married according to caste custom to Ramesh Padhan (P. W .1) of village Masedikia about three weeks prior to the occurrence which took place on 26-3-1979. On that day Baseli along with her companions, Kalimai Padhan (P.W.3), Urmila Padhan (P.W.4), Ali Padhan and Aba Padhan of the village came to the nearby jungle to collect mohua flowers. While the girls were collecting mohua flowers, petitioner Rajendra Padhan along with the other petitioners arrived there and having formed an unlawful assembly, forcibly and without her consent kidnapped Baseli with the intent that she may be compelled to marry petitioner Rajendra. After kidnapping, they kept her at the Dhangidi Ghar of Bati (P. W.5) of village Panjamaha. In the meanwhile, the other girls returned to the village and informed Ramesh (P.W.1) that his wife had been kidnapped by the petitioners. Ramesh (P. W .1) lodged F.I.R. (Ext. 1/1). The next day the kidnapped girl was recovered by P. W .7, A.S.I. of Police, Raikia. After recovery she was sent for medical examination to determine her age. Dr. K. K. Misra, Professor and Head of the Department of Forensic Medicines of the M.K.C.G. Medical College Hospital, Berhampur (P. W .9) examined her person on 19-4-1979, as well as, the X-ray plates (Exts. 4 to 4/6) taken for ossification test and submitted his report (Ext. 5) to the effect that the victim girl was above 15 and below 17 years of age. After close of investigation, P. W .8, Officer-in- charge of Raikia Police Station submitted charge-sheet against the accused persons for having committed offences under Ss. 143, 366 and 342. I.P.C.

(3.) The learned Assistant Sessions Judge framed charges against the petitioners under Ss. 143 and 366, I.P.C. who pleaded innocence. On consideration of the prosecution evidence he found that Baseli was the legally married wife of P. W.1, the petitioners kidnapped Baseli on the date of occurrence from her lawful guardian and on the relevant date Baseli was a minor. In view of these findings and as there was no evidence that Baseli was kidnapped with the intent that she shall be compelled to marry petitioner Rajendra, the learned Assistant Sessions Judge altered the charge from S.366 to S.363, I.P.C and sentenced each of them to undergo rigorous imprisonment for one year on each count.