Orissa High Court: In an appeal against the Judgment of the Trial Court, whereby, the appellant was found guilty of the offences punishable under Sections 366, 376(2)(n), 370-A and 506 of the Penal Code, 1860 (‘IPC’), the Single Judge Bench of S.K. Sahoo, J., upheld the impugned Judgment of the Trial Court.
Factual Matrix
The appellant was a tantrik locally known as ‘Tarini Baba’ and he used to move around different villages holding photo of goddess Tarini. The appellant came to the house of the informant and disclosed the powers of ‘Maa Tarini’ before the victim and her elder sister. He also called the informant and his sons and, in their presence, the appellant displayed his supernatural powers. With regular visits to the house of the informant, the appellant gained the confidence of the family members of the informant and assured them to remove the curse on their family by performing puja of ‘Maa Tarini’. Accordingly, one puja was performed one day and on the very next day, the two daughters of the informant were found missing from the house. Even after thorough search, the informant and his family members could not locate the whereabouts of the victim and her elder sister. On 29-09-2016 around 7.00 a.m., the victim called her brother-in-law on his mobile phone and intimated him that she was in the custody of the appellant and if her father (informant) and others would try to enquire about her whereabouts from the family members of the appellant, then he would kill her. The appellant also intimated her brother-in law that if any case was filed against him, then he would kill the victim. Later a report was filed before the Assistant Sub-Inspector of the police and the victim was found. During the course of investigation, the Investigating Officer (‘I.O.’) ascertained that the victim was sold, and the appellant had collected some money. On return to the police station, the I.O. further examined the victim, and arrested the appellant.
It was found by the Trial Court that the appellant not only kidnapped but trafficked and sexually exploited the victim, raped her repeatedly at two different places i.e., at Raipur and on the way to Jaipur and therefore, was found guilty under sections 366, 376(2)(n), 370-A and 506 of the IPC. The appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- in default, to undergo rigorous imprisonment for six months more for the offence under section 366 of the IPC, rigorous imprisonment for seven years along with fine of Rs. 5,000/-, rigorous imprisonment for three months more for the offence under section 370-A of the IPC, rigorous imprisonment for ten years, rigorous imprisonment for six months more for the offence under section 376(2)(n) of the IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default, to undergo rigorous imprisonment for three months more for the offence under section 506 of the IPC and all the substantive sentences were directed to run concurrently.
Court’s Decision
The Court viewed that the Trial Court was right in concluding that the victim was a minor, aged about 16- 17 years at the time of commission of the offence. The victim had stated in her statement that the appellant had committed rape on her, threatened her for which she could not shout or raise any objection to the overt act of the appellant. The Court also said that it could not lose sight of the fact that the prosecution had proved that the appellant was a ‘Tantrik’ who performed some kind of puja in the house of the victim and stated that there was blood sacrifice in the house of the victim in the past and he created a belief in the mind of the victim and her family members by his miraculous activity which may be one of the factors for which the victim left the house alone when the appellant told her to leave the house in the morning without informing anybody. In such a situation, the non-protest of the victim before anybody while in the company of the appellant cannot be a factor to disbelieve the prosecution case.
Further, the Court viewed that the Prosecution had successfully established that after kidnapping the victim, the appellant took her to Gwalior, in order to sell her to some other person, where the Police had rescued her. The Court said that the Trial Court had rightly convicted the appellant under Sections 366, 376(2)(n), 370-A and 506 of the IPC, as it was successfully established by the Prosecution that the victim was a minor as on the date of occurrence and the statement of the victim was clear, cogent, trustworthy and was corroborated from the evidence of other witnesses and circumstantial evidence that the victim was taken out of her lawful guardianship by using force and threat. The evidence of the victim about commission of rape on her on two occasions by the appellant was also successfully established.
Regarding the offence under Section 370-A of the IPC, the Court perused the Section and said that according to the ingredients of the said offence, if somebody knowingly or having reason to believe that a minor has been trafficked, in spite of such knowledge and belief, the minor is engaged for sexual exploitation in any manner, then the offence would be attracted. The Court said that in the case at hand, even though there was no evidence on record that the victim was engaged for sexual exploitation by any other person but there were clear evidence of trafficking of the victim and sexual exploitation by the appellant himself. Therefore, the Court said that the Trial Court had rightly found the appellant to be guilty under section 370-A of the IPC.
Thus, the Court found no infirmity or illegality in the impugned Judgment of the Trial Court. The punishment imposed by the Trial Court for the offences was in no way excessive according to the Court and therefore, the Court confirmed and upheld the impugned Judgment.
[Madhusudan Das v. State of Odisha, 2023 SCC OnLine Ori 3985, Decided on 28-06-2023]
*Judgment Authored by: Justice S.K. Sahoo
Advocates who appeared in this case :
For the appellant: Amicus Curiae Jyotsnamayee Sahoo;
For the respondents: Additional Government Advocate Arupananda Das.
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