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Shyamasundar Kar Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1969CriLJ1310
AppellantShyamasundar Kar
RespondentThe State
Excerpt:
.....the prosecution has failed to prove that the complainant was induced by the appellant to go from mohana to khariguda or from khariguda to cuttack and the evidence also is completely silent as to the means adopted for such inducement which would be characterised as deceitful. the accused thereafter used to come to our house take his meals, and enjoy me. the people of our street did not like such, conduct of the accused and drove him out from our house forcibly. the accused told me to go away to cuttack as he felt humiliated to remain in the society as the people have come to know that the accused bad married a christian girl. the object in framing a charge, as is well known, is to give notice of the essential facts which the prosecution proposes to establish to bring home the charge so..........about the month of august, 1964, abducted purification naik with intent that she may be seduced to illicit intercourse or knowing it to be likely that she will be seduced to illicit intercourse and thereby committed an offence punishable under section 366 of the indian penal code and within my cognizance and i hereby direct that you be tried by this court on the said charge.3. the prosecution story runs as follows:-the appellant was a teacher in l. p. school at khariguda village at about the same time when the complainant was also working as such, in l. p. school at mohana. the distance between khariguda and mohana is about one mile. the appellant while serving at l. p. school at khariguda was residing in village mohana. the complainant at that time wasliving with her sister in the same.....
Judgment:
ORDER

S.K. Ray, J.

1. This is an appeal from the judgment of conviction and sentence dated 8th October, 1966, passed by Sri U.N.Misra. Additional Sessions Judge. Ganjam-Boudh, in Sessions case No. 20 of 1966 (G) by which the sole appellant has been convicted under Section366, I.P.C., and sentenced to undergo R. I. for four years and to pay a fine ofRs. 100/- in default to undergo R. I. for further term of one month.

2. The charge against him runs as follows:-

That you, on or about the month of August, 1964, abducted Purification Naik with intent that she may be seduced to illicit intercourse or knowing it to be likely that she will be seduced to illicit intercourse and thereby committed an offence punishable under Section 366 of the Indian Penal Code and within my cognizance and I hereby direct that you be tried by this Court on the said charge.

3. The prosecution story runs as follows:-

The appellant was a teacher in L. P. School at Khariguda Village at about the same time when the complainant was also working as such, in L. P. School at Mohana. The distance between Khariguda and Mohana is about one mile. The appellant while serving at L. P. School at Khariguda was residing in village Mohana. The complainant at that time wasliving with her sister in the same village Mohana. The complainant's sister waa also working as the Head Mistress in Mohana L. P. School where the complainant was serving as a teacher. The appellant, the complainant and her sister were all subordinate to one Sahadeb Padban, S.I. of schools who was also residing at Mohana.

In course of time the appellant and the complainant came to know each other and this friendship between them ripened into deep intimacy as a result of which the appellant proposed to marry the complainant. At that time the complainant was aged about 21 years and was older than the appellant who was aged about 19 years. They remained as husband and wife for sometime in village Mohana, That was obviously within the knowledge of the complainant's sister because it is admitted by the complainant herself that the appellant used to come to their house, take his meals there, and then enjoy her. This state of affairs continued for a period of about two to three months. The complainant became pregnant as a result of sexual intercourse with the appellant. People of the locality found out this clandestine affair between the appellant and the complainant and that the latter was pregnant as a result thereof. So they drove the complainant out on the street where she was residing. The complainant left her home and went with the appellant to village Khariguda. They remained at Khariguda for about two months and then went to Cuttack, where they searched for jobs in educational institutions. They remained at Cuttack for sometime.

The appellant approached P. W. 1 who was then the auditor at Kendrapara education office attached to theDistrict Inspector of Schools at Cuttack for jobs for himself as well as for the complainant. Both the appellant and the complainant, during their stay at Cuttack, were corresponding with the latter's sister at Mohana. When the money of the appellant was exhausted, the complainant offered her ornaments to be sold to meet their financial requirements. Money was raised by sale of her ornaments. When that was exhausted the appellant left the complainant at Cuttack to fend for herself, Thereafter the complainant filed a complaint petition on 12-11.66. Cognizance was taken under 8s. 366, 420 and 493, Penal Code, and ultimately the accused was committed to the Court of Sessions to stand big trial under Section 366, Penal Code.

Section 362, Penal Code, runs as follows:

Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.' Section 366 under which the conviction has been made provides, so far as it is material for purposes of this case, as follows:

Whoever abducts any woman...with intent that she may be compelled or knowing: it to be likely that she will be compelled...or seduced to illicit intercourse... shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

From these two sections it is clear that in order to bring home the charge against the appellant the prosecution must establish the following elements.

(a) The appellant induced the complainant to go from any place:

(b) Such inducement was by deceitful means.

(c) Such abduction took place with intent that the complainant may be seduced to illicit intercourse; and

(d) the appellant knew it to be likely that the complainant may be seduced to illicit' intercourse as a result of her abduction.

4. From the narration of the prosecution case it is clear that the complainant first of all went from village Mohana to Khariguda and from Khariguda she again went to Cuttack, If the complainant is found to have voluntarily gone from Mohana to Khariguda and from Khariguda to Cuttack without the appellant having adopted any deceitful means for inducing her so to go, then abduction cannot be said to have taken place at all. Even if the appellant seduced the complainant to enter into illicit intercourse with him either at Khariguda or at Cuttack without doing any overt act which would constitute abduction, he would still not be guilty of the offence charged against him.

5. As the evidence stands, the prosecution has failed to prove that the complainant was induced by the appellant to go from Mohana to Khariguda or from Khariguda to Cuttack and the evidence also is completely silent as to the means adopted for such inducement which would be characterised as deceitful. It would be sufficient to quote from the evidence of the complainant herself to show that far. from proving these ingredients of abduction, it negatives the case of inducement by deceitful means. P. W. 2 complainant deposes as follows:

The accused thereafter used to come to our house take his meals, and enjoy me. We thus continued to live as husband and wife for two to three months. Then the accused proposed me to leave that place and to stay elsewhere. I was then already pregnant. The accused gaveHindu with coconut water to cause abortion. The people of our street did not like such, conduct of the accused and drove him out from our house forcibly. The people also drove me out from the street. Then I left' the home and went with the accused to village' Khariguda where we stayed for about two months. Then both of us went to Cuttack. The accused told me to go away to Cuttack as he felt humiliated to remain in the society as the people have come to know that the accused bad married a Christian girl. Then we left forCuttack and stayed at Ranihat.

Thus, it is proved by her that she left Mohana for Khariguda being driven out from the house by the people of the locality and she left for Khariguda voluntarily of her own accord. It is also clear from that statement that the appellant felt embarrassed and humiliated to remain in the society of the people of Khariguda who knew that he had married a Christian girl being a Hindu and wanted to go away to Cuttack. He, therefore, proposed to the complainant to go to Cuttack to escape the humiliation and embarrassment which he was undergoing at Khariguda. This evidence does not prove any inducement by deceitful means adopted by the appellant to take the complainant to Cuttack, nor does it prove any intent on the part of the accused that by such abduction the complainant would be Seduced to illicit intercourse. There is absolutely no evidence of any illicit intercourse having been resumed at any time by the appellant with the complainant since the latter was driven out on the street by villagers of Mohana or the latter ever being seduced into resuming any such illicit intercourse with the appellant. Both of them after reaching Cuttack kept up a course of correspondence with the complainant's sister at Mohana. These correspondences are Exts. 1 to 4. These letters show that they had come to Cuttack in search of jobs with the knowledge of complainant's elder sister.

The appellant was making a serious and genuine effort to obtain service. He is also corroborated by the evidence of P. W. 1 in this respect. That also indicates the reason for leaving Khariguda for Cuttack which was not only to avoid the humiliation and embarrassing atmosphere there, but also to seek job at Cuttack. It is, therefore, clear that the essential ingredients which are necessary to be proved to bring home the charge under Section 366 had not been established in this case at all.

6. The charge quoted above is also very defective. It should have indicated therein the nature of the deceitful means alleged to have been adopted by the appellant to induce the complainant to go from some named place to another named place. The charge does not indicate as to when and where abduction of the complainant took place. The appellant, therefore, had no notice of the essential facts on proof of which the offence can be said to have been made out and undoubtedly he has been prejudiced thereby. The object in framing a charge, as is well known, is to give notice of the essential facts which the prosecution proposes to establish to bring home the charge so that the accused may not be prejudiced in his defence. Thus framing of the charge is defective and I am satisfied that the accused has been prejudiced by such defective framing of the charge. Further, as already stated, the prosecution has not been able to bring home the charge to the accused under Section 366, Penal Code. The evidence as laid by the prosecution does not make oat a case of abduction at all. The conviction and sentence of the appellant cannot therefore be sustained and must be sat aside.

In the result, the appeal is allowed, the judgment of conviction and sentence of the Court below is set aside and the appellant is acquitted. Fines, if paid, shall be refunded.


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