Research › Search › Judgment

Orissa High Court · body

2006 DIGILAW 711 (ORI)

STATE OF ORISSA v. KUNA @ KUNJA BIHARI NANDA

2006-10-13

P.K.TRIPATHY

body2006
JUDGMENT : P.K. Tripathy, J. - Heard argument from the parties, hearing is concluded and the judgment is as follows. 2. Respondent was prosecuted in Sessions Trial No. 62/1 of 1984 in the Court of Assistant Sessions Judge, Sambalpur for the offence u/s 376, I.P.C. on the allegation that on 16.01.1984 at about 2.30 p.m. he committed rape on the minor daughter of P. Ws.1 and 3. 3. According to the case of the prosecution, P.W. 3, father of the victim girl being in government service posted at Rairakhol, was occupying on rent front portion of the house belonging to the father of the accused. That premises was segregated by a wall from the other portions of the house. Adjoining to that wall, there was a small inner courtyard. Adjoining to that inner courtyard there was a room and verandah which was in occupation of the accused and his father, and the adjoining remaining rooms behind that were in possession of another tenant who was also a service-holder. The victim girl, by the date of occurrence in January 1984, was aged about 4 years. Allegation in the F.I.R. was to the effect that P.W. 3 was taking rest in his house, P.W. 1 (mother of the victim girl) was available in the premises and the victim girl (P.W.2) was playing outside on the verandah. She was called and taken to his room by the accused by around 2 p.m. At about 2.30 p.m. when P.W. 1 went to bring her back, she saw the victim girl coming out from the room of the accused holding her wearing apparel ('chadi'). P.W. 2 narrated to P.W. 1 that accused committed rape on her by stating the same in so many words in vernaculars. P. Ws.1 and 3 thus confronted the matter with the accused, but the accused fled away, washed himself in a tank and thereafter returned and denied to the allegation and again absconded and that, in course of the investigation police arrested him from the adjoining jungle. The girl was sent for medical examination so also the accused after his arrest and the Doctor (P.W.6) opined about the injuries on the genitals of both accused and the victim girl and presence of semen in the clothings. The girl was sent for medical examination so also the accused after his arrest and the Doctor (P.W.6) opined about the injuries on the genitals of both accused and the victim girl and presence of semen in the clothings. Police seized the wearing apparels of the accused and victim girl and the bed-sheet from the occurrence room and sent to the State Forensic Science & Laboratory, Rasulgarh for chemical and serological analysis. According to P. W s.l and 3, soon after the occurrence they also sought for the help of other persons and narrated them about the incident. P. Ws 4 and 5 are two such witnesses. On completion of investigation, charge sheet was submitted and the accused was committed to the Court of Sessions. In the Trial Court accused denied to the charge and claimed for trial. In course of the trial, prosecution' relied on the evidence of nine witnesses and documents marked Exts.1 to 12. Out of the same, Ext. 1 is the F.I.R., Ext. 2 is the Medical Examination Report of the victim girl, Ext. 3 is the Medical Examination Report of the accused and Ext. 4 is the Opinion Report of the doctor (P.W.6). Exts.11 and 12 are respectively the Report of the Chemical Examiner and the Serologist from the S.F.S.L. In course of the trial while recording the evidence of P.W. 2 (then a girl aged about 5 years), Learned Asst. Sessions Judge granted certificate about her capacity to depose, but did not indicate there about the manner in which he tested the minor. The authenticity of the aforesaid certificate granted u/s 118 of the Evidence Act being not disputed at the Bar, therefore, that question is not considered. 4. On assessment of evidence on record, Trial Court found evidence of P.W. 2, who stated about commission of rape to be true and trustworthy and the evidence of the doctor P.W. 6 and his reports Exts.3 and 4 besides the evidence of P. Ws.1 and 3 corroborative in nature to prove the charge against the accused. Accordingly the Trial Court convicted the accused for the offence u/s 376, I.P.C. and sentenced him to undergo rigorous imprisonment for seven years. 5. Accused challenged that order of conviction and Learned Addl. Sessions Judge, Sambalpur on 21.12.1987 heard and allowed the Criminal Appeal No. 134/18 of 1984/85. Accordingly the Trial Court convicted the accused for the offence u/s 376, I.P.C. and sentenced him to undergo rigorous imprisonment for seven years. 5. Accused challenged that order of conviction and Learned Addl. Sessions Judge, Sambalpur on 21.12.1987 heard and allowed the Criminal Appeal No. 134/18 of 1984/85. Consequentially he set aside the order of conviction and acquitted the accused from the charge on the ground that prosecution did not prove the case against the accused beyond all reasonable doubt and the evidence relied on by the Trial Court, i.e., the evidence of P.W. 2 not only suffers from contradictions but also from improbable factors. The Appellate Court also recorded finding that evidence of P. Ws.1 and 3 are inconsistent with the evidence of P.W. 2 so also contradictory in some aspects with each other and that the defence plea of false accusation on demand of payment of arrear house rent cannot be regarded as untrue. Referring to various circumstances relied on by the Trial Court as improbable factors, Learned Addl. Sessions Judge opined that prosecution failed to prove the case against the accused beyond all reasonable doubt. As noted above, accordingly he acquitted the accused and allowed the criminal appeal. 6. On the basis of some administrative notes, a suo motu Criminal Revision bearing No. 354 of 1988 was initiated. Hon'ble (the then) Chief Justice on 25.11.1988 dismissed that Criminal Revision together with two other suo motu Criminal Revisions on the ground that: 10. I, therefore, have no doubt in my mind that the very initiation of the proceedings being without jurisdiction, the revisions should be dismissed and the notice issued to the opposite parties discharged. I order accordingly. 7. Be that as it may, this Government Appeal having been registered, correctness of the order of acquittal is to be assessed independent of dismissal of the aforesaid suo motu Criminal Revisions. 8. It is seen on record that Learned Addl. Sessions Judge has specifically recorded the finding that according to P.W. 2 the occurrence of rape took place in the night.That was not the prosecution case. 8. It is seen on record that Learned Addl. Sessions Judge has specifically recorded the finding that according to P.W. 2 the occurrence of rape took place in the night.That was not the prosecution case. In that context allowance allowed by the Trial Court to P.W. 2 on the ground that she being a child witness was not countenanced by the Appellate Court on the ground that when the child witness was found competent to depose and she could speak about everything, there could not have been any confusion about the time of occurrence and, apart from that there is no evidence on record to show or suggest that the child was not capable of judging the time elements whether it was day or night, morning or afternoon. Learned Addl. Sessions Judge therefore held that in the absence of proof of such factors, granting allowance to evidence of P.W. 2 condoning to contradictions by the Trial Court was improper.At the same time Appellate Court held that evidence of a child witness may not be free from tutoring and in the present case that is what has been clearly admitted by P.W. 2 in her cross-examination. In the context, to Appellate Court found a chance of tutoring by P. Ws.l and 3 because of the statements which she was said to have made regarding rape by narrating the incident and using the terminology in vernaculars. The aforesaid reasoning of the Appellate Court does not appear to be far fetched, illegal or perverse. The doubt entertained by him is reasonable one and therefore, that cannot be thrown over-board by invoking the sentiments for the allegation of rape on a minor girl. Besides that, the improbability factor which this Court also found is that in the broad day light at about 2.30 p.m. when the alleged act could be dared to be done by the accused in presence of P.W. 1 in the adjoining courtyard, as per her evidence, and the window of the room of the accused being open, appears to be improbable factor. The further improbability in the allegation of rape is that if the allegation of penetration is believed on a 4 years old girl by a grown up boy then she could not have remained silent notwithstanding the pain, which the act could have resulted. The further improbability in the allegation of rape is that if the allegation of penetration is believed on a 4 years old girl by a grown up boy then she could not have remained silent notwithstanding the pain, which the act could have resulted. The prosecution is absolutely silent and has brought no evidence on record in that respect. Another improbable factor is sufficient to dispel the allegation when the medical evidence does not unfailingly points out towards the injury only on account of commission of rape. 9. Under such circumstances, the order of acquittal recorded by the Appellate Court is not found to be illegal so as to be interfered with it. For the said reasons, the Govt. Appeal is dismissed. Govt. Appeal dismissed Final Result : Dismissed