KALANDI MALLICK Vs. STATE

JUDGEMENT

(1.) The two appellants seek to assail the judgment dated 8th November, 1989 passed by the learned Addl. Sessions Judge, Jajpur in Sessions Trial No. 248 of 1988/ 38 of 1989 convicting them of the charge under Section 366 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1 ,000.00, in default to undergo rigorous imprisonment for further two months.

(2.) THE short facts of the case that on 29.4.1988, P.W. 6 Kalpana, the daughter of P.W. 1 Nisakar was kidnapped. P.W. 1 filed an FIR at the Jajpur Police Station in that regard alleging that the two accused -appellants (Kalandi and Gangadhar) had taken Kalpana in a trekker on the pretext of going to Biraja Temple and in fact they directed the vehicle to proceed to Panikoili Chhak. At Panikoili Chhak Gangadhar, accused -appellant No. 2, asked Kalandi, accused -appellant No. 1, to take Kalpana to Paradeep. Accordingly Kalandi took Kalpana to Paradeep. At Paradeep she was taken to the residence of Baruna Mallik and. Swadesi Mallik, brothers of appellant No. 1, who were accused Nos.3 and 4 before the trial Court. On 30.4.1988 appellant No. 1, his aforesaid two!brothers Baruna and Swadesi and Cnakradhar Mallik who was accused No. 6 before the trial Court took Kalpana to Sarala Temple where they forced her to marry accused -appellant No. 1 Kalandi. In spite of protest the marriage was performed by exchange of garlands. The very day they returned to Paradeep and Kalpana was kept confined in the house of one Puria who is the sister of accused -appellant No. 1 and accused Nos.3 and 4 at Madhuban, a hamlet of Paradeep and in the night accused -appellant No. 1 forcibly and without consent of Kalpana cohabited with her. After receiving the FIR police rescued Kalpana, but then as no further steps were taken by police, P.W. 7 filed a complaint before the SDJM, Jajpur which was registered as ICC No. 159 of 1988. The said case having been committed to the Court of Session, the aforesaid Sessions Trial was registered. All the accused persons were charged for having committed offence under Section 366 IPC and accused -appellant No. 1 Kalandi was further charged for having committed offence under Section 376 IPC. The defence of the accused persons before the trial Court was complete denial. It was also stated by them that Kalpana was a major at the time of the alleged occurrence and being in love with accused -appellant No. 1 Kalandi she voluntarily proposed to marry Kalandi on 29th April, 1988 out of her own sweet -will, boarded 'SULTANA' bus near Biraja Temple, went to Sarala Temple where both of them married. They stated that the case had been falsely foisted.

(3.) AFTER vivid discussion of the evidence, both oral and documentary, the trial Court came to hold that Ext. D series the love letters had been written by the victim to appellant No. 1 Kalandi that the girl was in love with Kalandi and that there was no application for force on the victim by the appellants in kidnapping her. It disbelieved the allegation of rape, but then held that the two appellants had committed the offence under Section 366 IPC as the victim girl was a minor on the date of the alleged occurrence. Accordingly while acquitting the four co -accused of the appellants of the charge under Section 366 IPC, convicted the appellants of the said charge and sentenced them as stated above.