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Judgment
S.S. Mishra, J.
By the judgment of conviction and order of sentence dated 02.04.2004 passed by the learned Addl. Dist. & Sessions Judge, FTC, Baripada in S.T. Case No. 4/47 of 2004/03, the appellant has been convicted for commission of offence under Sections 366/376 of IPC and was sentenced to undergo R.I. for three years and to pay a fine of Rs.1,000/- (rupees one thousand), in default to undergo R.I. for three months for the offence under Section 366 of IPC and to undergo R.I. for seven years and to pay a fine of Rs.2,000/- (rupees two thousand), in default to further undergo R.I. for six months for the offence under Section 376 of IPC.
Heard Mr. D.P. Dhal, learned Senior Counsel for the appellant; Mr. Jateswar Nayak, learned counsel for the State; and Mr. Gouri Kumar Rath, learned counsel for the informant.
The prosecution case, in terse and brief, is that the informant Laxmi Mohanta (P.W.1) lodged the written report vide Ext.1 on 17.10.2002 alleging therein that on 14.10.2002 at about 10 P.M., while her minor daughter Sasmita Mohanthy aged about 14 years had gone to nearby well for cleaning utensils, at that time the accused Dinabandhu kidnapped her. After searching, P.W.1 could not trace out her victim daughter and on enquiry came to know that the accused Dinabandhu kidnapped her daughter. There was a meeting in the village on 17.10.2002 evening in that regard, but no such result came out in the meeting. Consequently, P.W.1 lodged the F.I.R at Baripada Town P.S. On receipt of the same, I.I.C Town P.S registered P.S. Case No. 214/02 U/s 366-A IPC and directed the ASI N.K. Das to take up investigation. After completion of investigation, charge sheet was submitted against the accused persons under Sections 366/376/109 of IPC.
Besides the appellant, one Jogeswar Mohanta was also put to trial. Against the present appellant charges under Sections 366/376 of IPC was framed on the allegation of kidnaping of the victim as well as alleged commission of rape on her, whereas the co-accused Jogeswar Mohanta stood charged for the offence under Section 109 of IPC. Both the accused persons have taken a stance of complete denial and claimed for trial.
In order to prove its case, the prosecution examined twelve witnesses and exhibited as many as sixteen documents. P.W.1 is the informant; whereas P.W.2 is the uncle of the victim and scriber of the FIR. P.W.3 is the brother in law of the victim, whereas P.W.4 is the victim herself. P.W.5 was a lady constable, whereas P.W.6 was the driver of the jeep who took the raiding party to village Kantasole. P.Ws.7 and 8 were the seizure witnesses, whereas P.W.9 was the radiologist. P.W.10 was the Jr. Sub-Inspector, who accompanied with P.W.11, the I.O. of the present case. P.W.12 was the doctor who examined the victim.
After thorough analysis of the evidence on record, the learned trial court in paragraphs-8 and 9 of the impugned judgment held as under:-
“8.The P.W.4 stated in her evidence that accused Dinabandhu forcibly co-habited with her in the house of Jogeswar several times daily. The P.W.12 is the doctor who examined the victim, the doctor stated on 20.10.02 he examined the victim and found no external bodily injury and there was no sign of recent sexual intercourse. However the possibility of sexual intercourse, cannot be ruled out. In cross-examination the P.W.12 doctor stated that the victim may have prior acquainted with sexual intercourse. From the evidence of P.W. 12 it appears that the commission of sexual intercourse against P.W.4 is not ruled out. The Circumstance brought out by the defence counsel may led to prove the consent of prosecutrix but in view of the age of the victim the consent of the victim reiedes to negligible position which can safely be thrown out.
9.The P.W.11 stated that on 19.10.02 he went to village Kantasole through Bangiriposi P.S along with his staff by commander jeep vide registration No. OR-11-B-4400, searched the house of accused Jogeswar being identified by Gramarakhi Banamali Mohanta and rescued the victim Sasmita from the house of accused Jogeswar and prepared the search list. The P.W.10 is the Jr, S.I and he corroborated the version of P.W.11 regarding the rescue of victim girl. The P.W.6 is the driver of the said jeep vide registration No. OR-11-B 4400. The P.W.6 stated that about 1 year back he went to village Kantasole on hire basis carrying police officers in his jeep and brought a boy and girl from the house of a person. In cross-examination nothing material has been elicited from P.W.6 to disbelieve the rescue. P.W.5 is the lady constable attached to Baripada Town P.S, she stated on 19.6.02 at about 8.30 P.M she accompanied P.W.11 to village Kantasole and rescued the accused Dinabandhu and victim Sasmita while they had slept in the house of Jogeswar. From the evidence of above witnesses it appears that both the victim Sasmita and accused Dinabandhu were together while they were rescue by the police. However the prosecution did not examined the said Gramarakhi Banamali Mohanta who identified the house of accused Jogeswar in village of Kantasole. The aссused Jogeswar denied his knowledge about the occurrence. Though there are ample evidence regarding the rescue of both the accused Dinabandhu and victim Sasmita from the village Kantasole from the house of a person but the prosecution fail to establish that the said rescue was made from the house of accused Jogeswar much less about his direct involvement in the alleged occurrence.
9.From the above set of evidence adduced by the prosecution there is nothing to doubt that the accused Dinabandhu kidnapped the minor Sasmita and committed rape on her during her minority for which the prosecution well proved the charge against the accused Dinabandhu. However the prosecution fail to prove the alleged abatement against the accused Jogeswar beyond all reasonable doubt for which the accused Jogeswar is entitled for benefit of doubt.”
The learned trial court on the aforementioned analogy while acquitting the co-accused Jogeswar Mohanta of the charges under Section 109 of IPC, convicted the present appellant for the offence under Sections 366/376 IPC and sentenced him on both the counts.
Mr. Dhal, learned Senior Counsel appearing for the appellant, at the outset, submitted that he will confine his argument only to the quantum of sentence and will not assail the conviction recorded against the appellant in the present appeal. He submitted that the appellant was sentenced to undergo R.I. for seven years, which is the minimum sentence prescribed under Section 376 of IPC. By drawing the attention to the proviso to Section 376 of IPC, he submitted that by assigning special reason, even the appellate court can reduce the sentence from minimum prescribed sentence. For ready reference, the provision is reproduced herein:-
“Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.”
He has also relied upon the judgment of the Hon’ble Supreme Court in the case of Ravindra vrs. State of Madhya Pradesh, reported in (2015)4 SCC 491. Paragraph-11 of the said judgment reads as under:-
“11.Now, we shall examine whether this case falls under the proviso to Section 376 IPC, to award a lesser sentence for “adequate and special reason”. In the present case, the incident took place 20 years ago and now with passage of time both victim and accused are married (not to each other) and they have entered into a compromise. Thus, an adequate and special reason for awarding a lesser sentence exists in terms of the proviso to Section 376.”
Besides that, Mr. Dhal, has also cited the judgment of the Hon’ble Supreme Court in the case of Nehnu Ram @ Narendra vrs. State of Rajasthan and another, in Criminal Appeal No. 320 of 2019 (Special Leave to Appeal (Crl.) No. 8491/2017). In that case also the Hon’ble Supreme Court by assigning the special reasons reduced the minimum sentence prescribed under Section 376(1) of IPC. The relevant part of the judgment cited by Mr. Dhal, reads as under:-
“……………Now, we come back to special reasons which have been placed before us. The incident took place about 30 years ago. At the time of incident, the appellant was 22 years of age and the prosecutrix was between 15-16 years. It has been stated by learned counsel on behalf of the appellant that the appellant is married and has three daughters whereas the prosecutrix is also married and has husband and kids. As noted above, this Court has already passed an order directing the State to obtain instructions on criminal antecedents of the appellant. It has been stated by learned counsel for the State before us that there are no criminal antecedents of the appellant.
This Court had impleaded the prosecutrix and issued notice. The prosecutrix refused to accept the notice and chose not to appear before this Court.
Looking into the facts and circumstances of the case that incident took place 30 years ago, that both the appellant and the prosecutrix having married (not with each other) and settled in life and the appellant having already undergone the sentence of one year and seven months, we are of the view that ends of justice would be served in reducing the sentence to the sentence already undergone………..”
Mr. Dhal, further submitted that by taking into account the peculiar facts and special circumstance of the present case, this Court may reduce the sentence to the period the appellant has already undergone. He has also pointed out that during the trial the appellant was taken into custody on 21.10.2002 and was released on bail on 03.03.2003. After the impugned judgment of conviction was passed by the learned trial court on 02.04.2004, he was again taken into custody and was only released on bail on 14.10.2004. Therefore, in toto the appellant has undergone custody for a period of ten months twenty four days. He further submitted that both the appellant and the victim were admittedly in love relationship at the time of incident. During pendency of the appeal, the victim (P.W.4) has also filed an affidavit before this Court on 06.08.2026, inter alia, stating that prior to the pronouncement of the impugned judgment, she had already married to one “xxxx” (name withheld) and has been blessed with two children. Since in the meanwhile 24 years have already been lapsed and she has already settled in her life, she does not want complicate her life by further sending the present appellant to custody. She further deposed that both the families of the appellant and victim have developed good relationship in the meantime. Therefore, she joined with the appellant for setting aside the impugned judgment. The relevant part of the affidavit reads as under:-
“3.That prior to the judgment i.e. in the year 2003, I have married one (xxx- name withheld) ……………. and I have blessed with two children.
4.That in the meantime 24 years have been lapsed I have already settled in my wife and I do not want to proceed with the case against the appellant and want to close the case.
5.That in the meantime both the families developed good relationship and there is absolutely no bad blood between us.
6.That the deponent could know about the case and pendency of the appeal and felt to swear this affidavit with a hope that this may help the Hon'ble Court while disposing the appeal.”
Mr. Dhal, also brought on record the notarized document dated 07.08.2010. The document indicates that in the year 2010, the victim got married with the present appellant. A deed of declaration of marriage was entered into between them. Both the appellant and the victim by signing the deed of declaration of marriage before the Notary Public on 07.08.2010 declared them as husband and wife. Although the document has no legal sanctity, but from the document it can be safely inferred that the appellant and the victim were having affairs and they were in love and they had attempted to marry.
Mr. Gouri Kumar Rath, learned counsel for the complainant although does not dispute the document placed on record by the appellant, but submitted that even after such declaration of marriage between the appellant and the victim, they have never stayed together, rather at present both the victim as well as the appellant have separately married and settled in their life. He has also submitted that the victim and her family members are not interested to send the appellant to custody because in the meantime the relationship between both the families has already been revived.
From the submission made by both the counsel appearing for the parties and from the evidence on record, it is apparent that the victim and the appellant were involved in love relationship. Even after the impugned judgment was pronounced, they attempted to get married. The victim has also filed affidavit before this Court reiterating that she has already married and blessed with two children. The relationship between the two families has already been revived. These circumstances are in fact the special circumstance on the basis of which the proviso to Section 376 of IPC could be invoked. The judgment cited by Mr. Dhal, to substantiate his argument that once the appellant bring on record special circumstance, which is persuasive to reduce the minimum sentence, the Court may invoke power bestowed on it under the proviso to Section 376 of IPC. The learned State Counsel agrees with the proposition of law and does not dispute regarding the special circumstance mentioned by Mr. Dhal and supported by Mr. Rath, learned counsel for the informant.
In view of the aforementioned, this Court is inclined to partly allow the present appeal and by confirming the conviction, the sentence awarded to the appellant is reduced to the period the appellant has already undergone. However, any fine amount if imposed upon the appellant would be paid by him.
With this observation, the Criminal Appeal is partly allowed.