Diba Tudu Vs State

convicting the appellant for the offence u/s. 363 IPC and sentencing him to undergo Simple Imprisonment for a period of 3 (three) months and to pay a fine of Rs.1000/- (rupees one thousand) only in default to undergo S.I. for 1 (one) month. The appellant was acquitted of charges under Sections 366-A/376 IPC.

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2. Heard Mr. Jugala Kishore Panda, learned counsel for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State.

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3. The prosecution case in brief is that on 30.01.2009 at about 5 P.M., the victim girl (P.W.4) allegedly went to a canal near her maternal uncle’s house at Jodapokhari when the appellant allegedly caught hold of her and took her by motorcycle to the house of one Jena Majhi at village Kundulia. It was further alleged that the appellant kept her there and committed rape. The FIR was lodged on 02.02.2009 by P.W.1, the mother of the victim. After investigation, charge-sheet was submitted under Sections 363, 366-A and 376 IPC.

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4. The appellant denied all allegations. It was specifically stated by

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the accused that the victim was major, had a love affair with the

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appellant, and the entire prosecution case was fabricated at the behest of her parents, particularly as her father (P.W.3) was a police constable posted in the same police station where the case was investigated.

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5. The prosecution examined 11 witnesses. P.W.1 is the mother of

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the victim and informant. P.W.3 is the father of the victim. P.W.4 is the victim herself. P.W.5 was the scribe, P.W.9 was the doctor, P.W.10 and P.W.11 were the I.Os. Others are post occurrence witnesses. Defence had neither examined any witness nor proved any document.

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6. The learned trial Court, upon a careful scrutiny of the evidence on record, found that the prosecution had successfully established the commission of the offence under Section 363 IPC, while failing to prove the charges under Sections 366-A and 376 IPC. The Court noted that the testimony of the victim (P.W.4) clearly revealed that she, being a minor at the time of occurrence, was taken away by the accused without the consent or even the knowledge of her parents, thereby attracting the

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ingredients of kidnapping from lawful guardianship under Section 363 IPC. However, in respect of the charge under Section 366-A IPC, the Court found absolute lack of evidence to show that the accused had taken or induced the victim from place to place for the purpose of forcing or seducing her to illicit intercourse. Similarly, with regard to the charge under Section 376 IPC, the victim’s categorical statement that no act of rape or sexual misconduct was committed by the accused completely demolished the prosecution case on that count. In view of these findings, the trial court held that the prosecution had failed to prove the offences under Sections 366-A and 376 IPC and accordingly acquitted the accused of those charges but convicted him under Section 363 IPC for kidnapping a minor girl from the lawful guardianship of her parents. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:-

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“Thus, this is a case in which the evidence of the victim (P.W.4) reveals that she was taken away the accused. Such taking away of the victim who was a minor was without the consent and even without the knowledge of the parents. One a minor girl was taken away without the consent of the guardian, the offence

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U/Sc.363 1.P.C. is complete. The prosecution has proved a case U/Sc.363 I.P.C.

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8. Now coming to the offence U/Sc.366-A I.P.C., it is seen that there is no evidence that the victim was taken from places to places so that she could be forced illicit intercourse. Rather, the victim in her cross-examination has admitted that the accused Diba has not misbehaved her. Hence, when there no evidence that accused was kidnapped her with the intention that the victim was likely to be forced for illicit intercourse, the offence U/Sc.366-A I.P.C. is not made out against the accused.

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9. As regards the offence U/Sc.376 I.P.C., the victim examined as P.W.4 has clearly deposed that the accused has not raped her. As stated above, she has further deposed that the accused Diba has not misbehaved her in any manner. Hence, a case U/Sc.376 I.P.C. is not proved against the accused.

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10. In view of the discussion made above, the prosecution has failed to prove a case U/sc.376, 366A I.P.C. against the accused but has proved a case U/Sc.363 I.P.C.

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11. In the result, I hold the accused not guilty for offence U/Sc.366-A, 376 I.P.C. and acquit him U/Sc. 235(1) Cr.P.C. At the sametime, I hold the accused guilty for the offence U/sc.363 I.P.C. and convict him thereunder.”

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7. I have carefully considered the submissions advanced by the learned counsel for the appellant and the learned counsel for the State and have gone through the records of the case, including the depositions of the witnesses and the documents produced.

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8. Upon a careful consideration of the entire materials on record and the evidence adduced by the prosecution, the testimony of P.W.4, the victim, forms the core of the prosecution case. However, her evidence is riddled with material contradictions that strike at the root of the prosecution version. While in the F.I.R. and Section 161 Cr.P.C. statements, she was projected as having been kidnapped for the purpose of sexual exploitation and subjected to illicit conduct, her deposition before the Court took an altogether different turn. She categorically admitted that the accused had neither misbehaved with her nor committed any sexual act upon her and further stated that no force or inducement was exerted by the accused during the period she remained away from her home. These contradictions are not minor or peripheral

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but go directly to the essential ingredients of the offences alleged under Sections 366-A and 376 IPC.

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9. P.W.9, the Medical Officer, who examined the victim, categorically stated that there were no external or internal bodily injuries on the person of the victim to suggest any act of forcible sexual intercourse. The absence of injuries assumes significance particularly because the prosecution alleged commission of rape, and in such circumstances, medical evidence constitutes an important corroborative factor.

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10. The findings of the learned trial Court based on the evidence of P.Ws. 1, 3, and 4, supported by the circumstances on record, justify the conclusion that the victim was a minor and that she was taken away by the appellant without the consent or knowledge of her lawful guardians. The conviction under Section 363 IPC is, accordingly, affirmed. Nonetheless, considering that the learned trial Court recorded a conviction, the incident occurred many years ago, and the appellant was only 22 years old at the time with no prior criminal antecedents, it

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becomes necessary to examine whether the benefit of probation may be extended.

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11. The appellant was arrested on 03.11.2010 and released on bail on 06.12.2010, thereby having undergone 1 month and 3 days of incarceration. He is a first-time youthful offender. The Supreme Court in Rattan Lal v. State of Punjab , reported in AIR 1965 SC 444 , emphasized that the purpose of the Probation of Offenders Act is reformation rather than retribution, and that youthful offenders should be given an opportunity to reform rather than be exposed to hardened criminals. It was held thus: -

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“ The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute di sc retion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down

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in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act.”

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Here, the doubtful nature of the prosecution case, the minor

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nature of the offence, the absence of criminal antecedents, and the tender age of the appellant at the time of occurrence make this a fit case for extending the benefit of Section 4 of the Probation of Offenders Act, 1958.

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12. In view of the aforesaid analysis, this Court is of the considered view that the ends of justice would be sufficiently met by modifying the substantive sentence. The appellant was arrested on 03.11.2010 and was released on bail on 06.12.2010, thereby undergoing 1 month and 3 days of actual custody. The appellant was a young student at the time of occurrence, with no criminal antecedents, and the incident is now more than a decade old. So, this Court deems it appropriate to reduce the substantive sentence to the period already undergone. It is appropriate to

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grant the appellant the benefit of probation under the P.O. Act. Hence,

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this Court directs the appellant to be released under Section 4 of the

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Probation of Offenders Act for a period of three months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called

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upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months.

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13. Accordingly, the Criminal Appeal is partly allowed.

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The High Court of Orissa, Cuttack. Dated the 27^th November 2025/Swarna

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Signature Not Verified

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Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Dec-2025 10:21:24

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Diba Tudu v. State

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Diba Tudu v. State

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