Orissa High Court Upholds Conviction Of ‘Tantrik’ For Trafficking & Repeatedly Raping Minor Girl

The Orissa High Court has recently upheld the order of conviction and sentences imposed upon a ‘tantrik’ for kidnapping and trafficking a minor girl out of the lawful guardianship of her parents and for repeatedly committing sexual intercourse with her against her will.

While denying relief to the accused, the Single Judge Bench of Justice Sangam Kumar Sahoo said,

“It cannot be lost sight of the fact that the prosecution has proved that the appellant was a ‘Tantrik’ who performed some kind of puja in the house of the victim…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…In such state of affairs, the non-protest of the victim before anybody while in the company of the appellant cannot be a factor to disbelieve the prosecution case.”

Factual Background

The appellant, who was a ‘tantrik’, faced trial for commission of offences punishable under Sections 366/376(2)(n)/370A/506 of the IPC on the accusation that he kidnapped the victim for having forcible intercourse with her and also to compel her to marry some unknown person outside the State, or with knowledge that she might be forced or seduced to illicit intercourse by others.

Also, he was accused of repeatedly having sexual intercourse with the victim at a lodge in Raipur against her will in the night of 27.09.2016. It was also alleged that he subsequently took her to Jaipur where he raped her and shifted her from place to place for the purpose of selling her to different persons for illegal gain of money.

Ultimately with the knowledge that the victim might be engaged for sexual exploitation, he sold her to a person at Gwalior in Madhya Pradesh for a consideration of Rs. 70,000/-. Subsequently, he threatened by asking her not to disclose the incidents before the police.

The Trial Court found the appellant guilty of the above said charges and sentenced him to undergo rigorous imprisonment for ten years. Being aggrieved by which he approached the High Court challenging the order.

Contentions Of Parties

It was argued for the appellant that there are discrepancies in the evidence of the victim, her father and her brother regarding the time when she was kidnapped. Though in the FIR it was mentioned that she was found missing since 26.09.2016, but the victim in her evidence gave a different account and therefore, the prosecution case was challenged.

It was also submitted that in the 164 CrPC statement, the victim stated about the commission of rape on her on two occasions whereas in the Court, she stated that the appellant raped her thrice.

It was further argued that during her journey with the appellant from place to place, the victim got opportunity to make phone calls but she did not complain or resist against her kidnapping which weakens the prosecution case.

It was submitted for the State that minor contradictions appearing in the statement of the victim cannot be a ground to disbelieve her evidence and therefore, the Trial Court rightly placed reliance on the evidence of the victim as well as other corroborative evidence to come to the conclusion that the appellant is guilty of the crime.

Court’s Observations

The Court was of the view that though there are some contradictions with respect to the date of kidnapping of the victim but those discrepancies cannot be a factor to discard the prosecution evidence or to disbelieve the evidence of the victim and her father in view of specific charges framed against the appellant.

The Court also discarded the argument made by the appellant that as the victim, though had opportunity to make phone calls, did not resist or complaint about such heinous attempt of the accused, her evidence is not trustworthy.

“It appears that the victim has stated that when the appellant committed rape on her, he threatened her for which she did not shout and learned trial Court has also rightly discussed about such aspect in the impugned judgment and came to hold that the victim was completely under the fear and under surveillance of the appellant due to which she did not intimate such incident to any person including the staff of the lodge nor the driver, conductor or the passenger of the bus etc,” the Court observed.

The Court also held that when evidence of the victim is clear, cogent, trustworthy and above board and gets corroboration from the evidence of other witnesses and circumstantial evidence that she was taken out of lawful guardianship by using force, it can be safely concluded that the Trial Court appositely convicted the accused.

“The sexual exploitation as has been used in section 370A of the I.P.C. may be by the accused himself who has removed the victim by using threat, force, coercion, abduction or practising fraud or deception etc. or if he engages minor to be sexually exploited by another person. In the case in hand, even though there is no evidence on record that the victim was engaged for sexual exploitation by any other person but there is clear evidence of trafficking of the victim and sexual exploitation by the appellant himself,” the Court added.

Accordingly, the conviction and the ensuing sentences imposed upon the accused by the Trial Court were sustained.

Case Title: Madhusudan Das v. State of Odisha

Case No.: JCRLA No. 60 of 2019

Date of Judgment: June 28, 2023

Counsel for the Appellant: Ms. Jyotsnamayee Sahoo, Amicus Curiae

Counsel for the State: Mr. Arupananda Das, Addl. Govt. Advocate

Citation: 2023 LiveLaw (Ori) 72

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