Courts Should Not Sentence Kidnapping Convict Both U/S 363 & 366 In View Of Mandate U/S 71 IPC: Orissa High Court

The Orissa High Court has recently held that a convict should not be sentenced both under Section 363 (punishment for kidnapping) and Section 366 (kidnapping, abducting or inducing woman to compel her for marriage etc.) of the Indian Penal Code as Section 366 squarely covers the substantive punishment which is prescribed under Section 363.

Clarifying the procedure to be adopted by the trial Courts while sentencing, the Single Bench of Justice Sangam Kumar Sahoo observed,

“The substantive offence as provided under section 363 of the I.P.C. is squarely covered under section 366 of the I.P.C., which is a higher offence. Therefore, in view of the mandate under section 71 of the I.P.C., there is absolutely no need to award separate sentence under section 363 of I.P.C. as it has merged in the sentence imposed under Section 366 I.P.C.”

The appellant was convicted and sentenced for commission of offences punishable under sections 363/366/376(2)(i)(n) of the IPC read with section 6 of the Protection of Children from Sexual Offences Act on the accusation that he kidnapped the minor victim and committed rape on her repeatedly and also committed aggravated penetrative sexual assault on her.

The amicus curiae contended that some vital witnesses were not examined who should have been examined to corroborate the victim’s evidence. However, the Court did not entertain such contention and opined that the law is well settled that in criminal trial, number of witnesses does not matter but it is the quality of evidence which matters.

“More particularly, law is well settled that in case of this nature, where the evidence of the victim is cogent, trustworthy and above board, the same can be acted upon. I find that the evidence of the victim (P.W.1) is not only trustworthy, but it also gets corroboration from other witnesses and circumstantial evidence”, the Court added.

Further it was submitted that statement of the victim under Section 164 of the CrPC is contrary to the evidence given in the Court. But again, the Court discarded such argument holding that statement of a witness recorded under section 164 CrPC is not a substantive evidence.

“A statement recorded under section 164 Cr.P.C. can be used either for corroboration of the testimony of a witness under section 157 of the Evidence Act or for contradiction thereof under section 145 of the Evidence Act. The mandate of law is that there should be substantial compliance of the requirements under section 145 of the Evidence Act and the purpose of second part of section 145 is to give reasonable opportunity to the witness to explain the contradictions after his attention is drawn to them in a fair and reasonable manner,” it added.

Justice Sahoo further held that Courts must ensure that if there is contradiction between the previous statement in writing and statement made in the Court then that portion is brought to the attention of the witness and he is given reasonable opportunity to explain the contradictions.

However, in this case, as the previous statement of the victim recorded under Section 164 was not confronted to her in terms of Section 145 of the Evidence Act, the Court refused to take into consideration the contradictions as canvassed through the 164 CrPC statement.

Therefore, taking into account all the evidences available on record, the Court was of the view that the trial Court rightly convicted the appellant under Sections 363, 366 and 376(2)(i)(n) of the IPC.

However, the Court did not deem it proper to sentence the appellant separately under Section 363 of the IPC in view of the mandate under Section 71 of the IPC which provides for limit of punishment of offence made up of several offences.

The Bench was of the view that as the offence of kidnapping under Section 363 is covered under Section 366, which provides for kidnapping knowing that the victim may be forced to illicit intercourse, there is no need for sentencing separately for the lesser offence, i.e. under Section 363.

Accordingly, while upholding the conviction and sentence awarded to the appellant under Sections 376(2)(i)(n) and 366 IPC, the Court did not impose any separate sentence under Section 363.

Case Title: Bapun Singh v. State of Odisha

Case No: JCRLA No. 57 of 2019

Date of Judgment: July 19, 2023

Counsel for the Appellant: Mr. Akhaya Kumar Beura Amicus Curiae

Counsel for the State: Mr. Manoranjan Mishra Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 80

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