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2013 DIGILAW 44 (ORI)

Krushna Bisoi v. Miss Dhaneswar Bisoi

2013-02-07

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. : This revision has been filed challenging the order dated 26.07.2005 passed by the Learned Sessions Judge, Koraput at Jeypore in Criminal Revision Petition No.13 of 2005, setting aside the judgment and order of acquittal passed by the Learned C.J.M.-cum-Assistant Sessions Judge, Jeypore in Criminal Trial No.27 of 2003 (C.T. No.340 of 2003) and remanding the case back to the Trial Court for re-trial by examining the father of the victim and for arranging medical examination of the victim by the doctor for determining the age of the victim at the time of occurrence and to take any other evidence which may throw light on the age of the victim at the time of occurrence. 2.The petitioner faced trial in the aforesaid C.T. Case No.27 of 2003 for commission of offences under Sections 450 and 376 of the I.P.C. On consideration of evidence on record, the trial Court came to the conclusion that sexual intercourse by the accused with the victim was with the consent of the latter. While assessing the evidence with regard to the age of the victim, the Trial Court took into consideration the evidence of victim's mother (P.W.2) and came to the conclusion that the mother of the victim having married at the age of 16 years and, 3 to 4 years whereafter her eldest daughter was born and that the victim was possibly the eldest daughter and that the mother being 40 years old the victim would be around 20 years of age by now and would be more than 16 years old at the time of occurrence. Therefore, the Trial Court acquitted the accused-Petitioner of the charges. 3.The acquittal order was challenged by the prosecutrix before the Learned Sessions Judge, Koraput, Jeypore in criminal revision No.13 of 2005. It was urged that the father of the victim was examined by the investigating officer and that the trial Court wrongly allowed the prayer of the prosecutor to dispense with the examination of the father of the victim, who is competent to tell about the age of the victim. It was also pointed out that the ossification test of the victim could not be done at the relevant time as she was then pregnant, but at present ossification test can be done in order to determine the age of the victim at the relevant time of occurrence. It was also pointed out that the ossification test of the victim could not be done at the relevant time as she was then pregnant, but at present ossification test can be done in order to determine the age of the victim at the relevant time of occurrence. Both the contentions found favour with the learned sessions Judge, who allowed the revision, set aside the order of acquittal and remanded the matter to the Trial Court for taking evidence of the father of the victim and any other relevant evidence and also conducting medical examination of the victim for determining her age on the date of the occurrence. 4.Learned counsel for the petitioner submits that where two views were possible the view taken by the trial Court should not be lightly interfered with or substituted by the appellate or revisional Court by re-appreciating the evidence and in the instant case the trial Court having taken a reasonable view it was not open to the revisional Court to set aside the order of acquittal and to remand the case back for retrial. 5.Learned counsel for opposite party No.1 (Prosecutrix) relying on the decision of this Court reported in (2010) 46 OCR (SC) 202: Gangadhara Samal v. State of Orissa and others submits that the revisional jurisdiction should be exercised for directing re-trial of the case inter alia where evidence sought to be produced by the prosecutrix was wrongly shut out, or where material evidence was overlooked. 6.With regard to the scope of revision against an order of acquittal this Court in the decision reported in (2010) 46 OCR-202 : Gangadhara Samal v. State of Orissa and others held as follows : ''The scope of revision against an order of acquittal is very limited. It has been held by the Apex Court in the case of Akalu Ahir v. Ramdeo Ram; AIR 1973 SC 2145 that' on revision by a private complainant, the High Court is not entitled to reappraise the evidence for itself as if it is acting as a Court of appeal. It has been held by the Apex Court in the case of Akalu Ahir v. Ramdeo Ram; AIR 1973 SC 2145 that' on revision by a private complainant, the High Court is not entitled to reappraise the evidence for itself as if it is acting as a Court of appeal. It is trite law that revisional jurisdiction should not be exercised by the High Court for directing retrial of the case, unless, there is flagrant miscarriage of justice resulting from want of jurisdiction of the Trial Court to try the case, or where evidence sought to be produced by the prosecution was wrongly shut out, or where the Court below wrongly held the evidence to be inadmissible, or where material evidence was over looked. Reference in this regard can be made to the judgment of the apex Court in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh and another., AIR 1962 SC 1788 and the decision of this Court in the case of Surendra Barik v. Gurubai Nayak and others; (1990) 3 OCR 625 . 7.The present case is not one of mere appreciation or re-appreciation of evidence but one relating to the question whether the prosecution evidence was shut out wrongly by declining to examine the father of the victim girl, whose evidence was relevant with regard to the age of the victim. It also appears that the finding of the trial Court regarding age of the victim appears to be wholly perverse and not supported by evidence. Age of the victim has been assessed to be more than 16 years on the date of occurrence considering the age of the victim's mother (P.W.2) which was said to be 40 years on the date of her deposition in Court. In the heading of the deposition P.W.2, is stated to be aged about 40 years, which cannot be accepted as evidence as such with regard to her age. Even assuming she was 40 years of age on the date of her deposition on 15.03.2004, in her evidence in chief she has not specifically stated about the age of the victim girl. Her cross-examination reveals that she has three daughters. Nothing has been elicited to ascertain where the victim was her 1st, 2nd or 3rd daughter. Even assuming she was 40 years of age on the date of her deposition on 15.03.2004, in her evidence in chief she has not specifically stated about the age of the victim girl. Her cross-examination reveals that she has three daughters. Nothing has been elicited to ascertain where the victim was her 1st, 2nd or 3rd daughter. She has further stated that she was 16 years of age at the time of her marriage and three to four years thereafter her eldest daughter was born. She does not remember how many years thereafter, the second daughter and 3rd daughter were born. From this evidence, the Trial Court has simply presumed that the victim was her eldest daughter and therefore jumped to the conclusion that at the time of occurrence the victim was above 16 years of age. Hence, the finding of the Trial Court with regard to age of the victim was wholly perverse. This is more so, because the Trial Court has also ignored from consideration the evidence of the victim herself, who has been examined as P.W.1 and stated that she is the second daughter of her parents. Coming to the question of shutting out evidence, it is an admitted fact that the victim's father, Gobardhan Bisoi was a charge-sheet witness and admittedly the petition of the prosecutor to dispense with his examination was allowed by the trial Court mechanically without any application of mind as to the importance and relevance of his evidence. His statement to the police reveals that on the date of his examination by the I.O. the victim was aged about 15 years. It is clear that the trial Court without applying its judicial mind wrongly dispensed with the evidence of the father of the victim, which was very important from the point of view of the prosecution. This Court in the case reported in (1988) 1 OCR 15 : Sri T. Krishna Rao v. Sri T.V. Satyanarayan, where the trial Court failed to make sincere attempt to call the victim's mother as a witness, the Court allowed the revision by setting aside the order of acquittal and remanded the case to the trial Court for re-trial. In doing so, this Court took note of another decision reported in AIR 1958 Ori. In doing so, this Court took note of another decision reported in AIR 1958 Ori. 92 : Raghunath Paramanik v. State, in which it is observed as follows : ''It is the duty of the Sessions Judge, trying a man for his life to see that all material witnesses summoned to give evidence are examined and if any such witnesses are absent, to adjourn the case and to take coercive step for their attendance. The trial cannot be said to be a fair trial if the attendance and examination of the witnesses is not insisted upon and the trial of the case is closed simply with a remark that the conduct of the absenting witness shows a lack of responsibility or that the Sessions Judge was pleased to direct proceedings for contempt against the witnesses. This should follow the compelling of the attendance of the witness and not be a substitution for his absence.'' 8.Having come to the conclusion that the finding of the trial Court was based on no evidence and that important evidence from the side of the prosecution was shut out illegally and improperly and the trial Court failed in discharging its duty as required under law, which has caused miscarriage of justice, the impugned revisional order calls for no in reference. The CRLREV is accordingly dismissed. CRLREV dismissed.