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2007 DIGILAW 301 (ORI)

STATE OF ORISSA v. DAMAN MAHANTA

2007-04-30

R.N.BISWAL

body2007
R. N. BISWAL, J. ( 1 ) IN this appeal the State of Orissa has called in question the judgment dated 11. 9. 1992 passed by the Asst. Sessions Judge, Mayurbhanj, Baripada in s. T. No. 11/81 of 1992 acquitting the accused/respondent of the charge under Section 376 of IPC. ( 2 ) SHORN of unnecessary details the prosecution case is that on 22. 9. 1991 while the victim and the mother of the accused/respondent were tending their respective cattle in the jungle, the accused/respondent came there at about 2. 30 p. m. , asked his mother to return home and he himself tended the cattle. In course of grazing, the cattle entered inside the dense forest and accordingly the accused/respondent and the victim followed them. It is alleged that when the victim was standing in the dense forest the accused/respondent undraping her, laid her down on a muddy surface, and then committed sexual intercourse on her for 5 to 10 minutes against her will and without her consent. On returning home, with muddy clothes, the victim narrated the incident to her mother (PW4) who in turn requested pws. 3 and 6 to come and see the condition of her daughter. Accordingly, they came to the house of the victim and saw her clothes to have been soiled by mud. When PW1, her husband returned home, PW4 narrated the entire incident to him, who brought this fact to the notice of the Ward Member of the village and he assured him to take appropriate steps. But since the accused left his village, the Ward Member could not take any step against him and asked PW1 to report the incident at the Police Station. Accordingly, he orally reported the incident before the A. S. I, of K. C. Pur Outpost (PW10) on 24. 9. 1991 who reduced the same into writing, entered the fact in Station Diary and sent the report to the QIC of Betonati Police Station (PWS) who registered the case under Section 376/511 of IPC. PW10 took up preliminary investigation, in course of which he examined the informant, the victim and some other witnesses, sent the victim to headquarter hospital, Baripada and handed over the charge of investigation to pws on 26. 9. 1991. PW10 took up preliminary investigation, in course of which he examined the informant, the victim and some other witnesses, sent the victim to headquarter hospital, Baripada and handed over the charge of investigation to pws on 26. 9. 1991. In course of investigation, PW 8 examined one Soukin Mohanta @ Sukru, arrested the accused, seized his wearing apparel, forwarded him to Court and after completion of investigation, finding a prima facie case against the accused- respondent, submitted charge sheet under section 376 of IPC against him. ( 3 ) THE plea of the accused/respondent is that there was previous enmity between the family members of the victim and his family members and to feed fat the previous grudge the case has been foisted falsely against him. ( 4 ) IN order to prove its case, prosecution examined as many as twelve witnesses as against one by the defence. After assessing the evidence on record, the trial Court held that the victim was below 16 years at the time of alleged incident, but he disbelieved the allegation of rape on her and accordingly acquitted the accused/respondent. Being aggrieved by the order of acquittal the State of Orissa has preferred this appeal as mentioned earlier. ( 5 ) ADMITTEDLY, there is no eyewitnesses to the occurrence. So the fate of the case solely depends on the evidence of the pros- ecutrix (PWS) and the doctor (PW9 ). It transpires from the evidence of PWS that while she herself and the accused/respondent were tending their respective cattle in the jungle, the latter caught hold of her from the back side, uridraped her, forcibly laid her down on the ground and committed rape on her for 5 to 10 minutes. It further transpires from her examination-in-chief that she was laid down on a muddy surface and as such her wearing apparel became muddy. It transpires from the evidence of her parents (PWs 1 and 4) that by the time of occurrence the victim had not attained puberty. It is found from the ossification test that the victim was aged about 13 to 15 years at the time of occurrence. On perusal of the evidence of PW 9 it is found that the victim had not attained puberty and her genital organs had not well developed. She found her hymen intact and there was no injury in her vagina or labias. On perusal of the evidence of PW 9 it is found that the victim had not attained puberty and her genital organs had not well developed. She found her hymen intact and there was no injury in her vagina or labias. During cross- examination the doctor deposed that in case of cohabitation with an unmatured girl, the hymen would be ruptured and there would be bleeding in the vaginal channel. Of course she stated that she found three abrasions on the back of tin; victim, but during cross-examination it was elicited from her that the abrasions were superficial in nature. As found from the FIR, the informant, father of the viclrn had stated that an attempt was made oy the accused/respondent on his daughter to commit rape, as he learnt from his wife. But subsequently, it was developed to a case of rape. If in fact the accused/respondent committed sexual intercourse on the prosecutrix for 5 to 10 minutes, then at least she would have sustained some sort of injury on her private part, particularly when ; the had not attained puberty, but as per the opinion of the doctor she noticed only some superficial abrasions on her back. The victim was tending the cattle in a dense forest. So she was likely to sustain abrasions in coming in contact with shrubs and twigs. Only because some superficial abrasions were noticed on the back of the victim, it cannot be held that she was subjected to rape. ( 6 ) LEARNED Addl. Standing Counsel submits that there is sufficient material against the accused/respondent to convict him for the offence under Sections 376/511 of IPC. When the accused/respondent undraping the victim, laid her down on the ground and mounted over her to commit sexual intercourse, it is sufficient to hold that he attempted to commit rape on her. But as stated earlier, according to the victim herself she was subjected to sexual intercourse for 5 to 10 minutes. Admittedly she was a minor and had not attained puberty at the time of alleged occurrence. As discussed earlier, no injury was found on her private part. So the allegation of commission of sexual intercourse can be safely held to be false. Furthermore, as per the FIR the accused/ Respondent only attempted to commit rape on the victim, but subsequently it was developed to a case of rape. As discussed earlier, no injury was found on her private part. So the allegation of commission of sexual intercourse can be safely held to be false. Furthermore, as per the FIR the accused/ Respondent only attempted to commit rape on the victim, but subsequently it was developed to a case of rape. Again as found from the evidence of DW1, the accused/respondent was there in his village bahadarpur on the alleged date of incident and not in the occurrence village. Except the evidence of the victim there is no evidence whatsoever to show that in fact the accused/ respondent was there in the village of occurrence on the relevant date Furthermore, it transpires from the eviden, of DWl that three to four months prior to the alleged occurrence the accused/resp ndent had killed a she-goat belonging to the informant, for which there was a Panchayat in the village and since then the family of the accused/respondent and that of the informant had not been pulling on well. The possibility that to feed fat the previous grudge informant foisted this case, cannot be ruled out. In such view of the matter I cannot support the submission of the learned Addl. Standing Counsel that the accused/respondent should have been convicted for the offence under Sections 376/511 of IPC. ( 7 ) IT is the settled principle of law that if the view taken by the trial Court is a plausible one the same ought not to be interfered with by the appellate Court, even if in its opinion a different view could have been taken. In the instant case the view taken by the trial Court is a plausible one. Furthermore, this is a case of the year 1991. In the meantime more than 15 years has already been elapsed. If at this stage the order of the trial Court is set aside and an order of conviction is recorded, it would be travesty of justice. Under such circumstances, the appeal stands dismissed and the judgment of the trial Court is hereby confirmed. Appeal dismissed. .