Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ORISSA HIGH COURT
S.K. Sahoo, J.
Bapun Singh – Appellant
versus
State of Odisha – Respondent
JCRLA No.57 of 2019
Decided on 19.7.2023

Advocates:
Counsel for the Parties:
For the Appellant: Mr. Akhaya Kumar Beura, Amicus Curiae
For the Respondent: Mr. Manoranjan Mishra, Addl. Standing Counsel

IMPORTANT POINTS
(1) Defence is not required to prove its plea beyond all reasonable doubts, but when inconsistent pleas have been taken by defence, same cannot be accepted.
(2) Statement of a witness recorded under Section 164 of Cr.P.C. is not substantive evidence – Substantive evidence is one which is given by witness in Court on oath in presence of accused.

Headnote:
(A) Indian Penal Code, 1860 – Sections 363/366/376(2)(i)(n) read with Section 6 of Protection of Children from Sexual Offences Act, 2012 – Kidnapping and rape and aggravated penetrative sexual assault on minor girl – Conviction and sentence – Defence plea that there was love affair between victim and appellant and when victim asked appellant to marry her, appellant denied the same for which a scandalous false case has been foisted upon him, is not acceptable – Defence is not required to prove its plea beyond all reasonable doubts, but when inconsistent pleas have been taken by defence, same cannot be accepted – In view of age of victim below sixteen years and conduct of appellant in taking minor girl from lawful guardianship and committing rape on her repeatedly, Trial Court has righty convicted appellant under Section 366 of I.P.C. so also under Section 376(2)(i)(n) of I.P.C. – No separate sentence is required to be passed for conviction of appellant under Section 6 of POCSO Act in view of Section 42 of POCSO Act as rightly done by Trial Court – Conviction and sentence affirmed. (Paras 11 and 12)
(B) Criminal Procedure Code, 1973 – Section 164 – Indian Evidence Act, 1872 – Section 157 – Statement of a witness – Statement of a witness recorded under Section 164 of Cr.P.C. is not substantive evidence – Substantive evidence is one which is given by witness in Court on oath in presence of accused – Statement of a witness under Section 164 of Code is recorded in absence of accused and as such it is not substantive evidence – Statement recorded under Section 164 of Cr.P.C. can be used either for corroboration of testimony of a witness under Section 157 of Evidence Act or for contradiction thereof under Section 145 of Evidence Act – There should be substantial compliance of requirements under Section 145 of Evidence Act – Court must ensure that if there is contradiction between previous statement in writing and statement made in Court then that portion is brought to attention of witness and he is given reasonable opportunity to explain contradictions. (Para 10)
Result: Criminal Appeal dismissed.

JUDGMENT

S.K. Sahoo, J.—The appellant Bapun Singh faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Balasore in Special Case No.379 of 2017 for commission of offences punishable under sections 363/366/376(2)(i)(n) of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’) read with section 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’) on the accusation that on 29.09.2017 at about 6.00 a.m., he kidnapped the victim (P.W.1), who was the minor daughter of the informant (P.W.2) aged less than sixteen years, from village Bankapada without the consent of the informant from his lawful guardianship, with the intent that she might be compelled or forced to marry him against her will or might be forced to illicit intercourse, committed rape on the victim repeatedly and also committed aggravated penetrative sexual assault on her.

The learned trial Court vide impugned judgment and order dated 26.06.2019 found the appellant guilty under sections 363/366/376(2)(i)(n) of the I.P.C. and section 6 of the POCSO Act and sentenced him to undergo R.I. for five years and to pay a fine of Rs.5,000/-(rupees five thousand), in default, to undergo further R.I. for three months for the offence under section 363 of the I.P.C., R.I. for five years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further R.I. for three months for the offence under section 366 of the I.P.C. and R.I. for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo further R.I. for three months for the offences punishable under section 376(2)(i)(n) of the I.P.C. and in view of section 42 of the POCSO Act, no separate sentence was awarded for the offence under section 6 of the POCSO Act and all the substantive sentences were directed to run concurrently.

2. P.W.2 Katia Singh, the father of the victim (P.W.1) lodged the first information report on 05.10.2017 before the Officer in-charge of Chandipur police station stating therein that the victim was aged about fourteen years and on 29.09.2017, in the early morning at about 6.00 a.m., she was missing from the house for which he himself, his sons and neighbours searched for her but could not locate her. Subsequently, they came to know that the appellant was staying in the house of his grandmother, who is a co-villager of the informant, had kidnapped the victim on the pretext of visiting jatra. Thereafter, the informant (P.W.2) searched for both the appellant as well as the victim at different places and ultimately on 05.10.2017 at about 12.00 noon, they were caught while the appellant was attempting to take the victim out of Odisha from Balasore railway station. Thereafter the informant (P.W.2) asked the victim about the appellant and she told that the appellant proposed her for marriage and took her to his friend’s house at Balasore and there, he committed rape on her repeatedly. It is further stated in the F.I.R. that the appellant was a married person and his wife had left him. The informant (P.W.2) brought the victim as well as the appellant to the police station and on the basis of such report, first information report was lodged by P.W.2 at Chandipur police station which was registered as Chandipur P.S. Case No.89 of 2017 under sections 363/366/376(2)(n) of the I.P.C. and section 6 of the POCSO Act against the appellant and P.W.15, the Officer-in-charge, of Chandipur himself took up investigation of the case.

During course of the investigation, P.W.15 the investigating officer examined the informant, sent the appellant as well as the victim for medical examination, visited the spot, prepared the spot map (Ext.12), seized the biological sample and wearing apparels of both the victim as well as the appellant and thereafter, he arrested the appellant and forwarded him to Court. On 10.10.2017, the I.O. made prayer for recording the statement of the victim under 164 Cr.P.C. and a