Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 122 (ORI)

State of Orissa v. Sanjay Kumar Pradhan

2014-02-14

D.DASH

body2014
JUDGMENT Being aggrieved by the order of acquittal passed by the learned Sessions Judge, Sundergarh in S.T. Case No.168 of 1994, finding the respondent not guilty of the charge under Section 376 IPC, this appeal has been filed by the State. 2.The case of the prosecution is that on 08.04.1994, around 3.00 P.M., the prosecutrix, (P.W.1) had gone to the hillock to see the buffaloes grazing there. On her way back, she met the respondent who asked her about the visit and then followed her. It is alleged that while following suddenly he embraced, made her lie on the land of one Hare Krushna near a sal tree, pulled her saya, saree and then ravished her. It is further stated that the victim when raised cry as ‘Maa Maa’, hearing the same, the victim’s brother, mother and sister came running to the spot. The respondent seeing the brother of the victim fled away from the place leaving the victim. The matter being reported to the villagers, a meeting was convened and it was held in the house of an advocate on 09.04.1994. Thereafter on 10.04.1994, the victim with her sister went to Lahunipada P.S. and reported the matter. On the basis of the same, IIC of the said police station having registered the case took up investigation and on completion of the same placed charge sheet against the respondent for facing trial for commission of offence under Section 376, IPC. During trial the respondent took the plea of complete denial and false implication because of his dispute with P.W.3, the brother of the victim. 3.The prosecution in order to bring home the charge against the respondent during trial, has examined altogether 10 witnesses. P.W.1 is the victim. P.Ws.3 and 4 are her brother and sister respectively. The doctor who had examined P.W.1 has been cited as P.W.2. P.W.7 is the scribe of a document (Ext.1) who is said to have prepared the same in the house of the advocate in the village, said advocate has been examined as P.W.8. The scribe of the F.I.R. is P.W.9 whereas the I.O. has been examined at the end as P.W.10. P.W.7 is the scribe of a document (Ext.1) who is said to have prepared the same in the house of the advocate in the village, said advocate has been examined as P.W.8. The scribe of the F.I.R. is P.W.9 whereas the I.O. has been examined at the end as P.W.10. 4.The trial Court on analysis of evidence of P.W.1 the prosecutrix, her brother P.W.2, sister P.W.4 and on going through the document (Ext.A) said to have been prepared at village in the house of P.W.8 written by P.W.7 prior to lodging of F.I.R. Ext.1 has entertained doubt on the veracity of the case of the prosecution while further taking into consideration the factum of delay in lodging the F.I.R. and non disclosure of material facts giving rise to the suspicion. Accordingly, the respondent has been acquitted which is now under challenge at the behest of the State. 5.Learned Addl.Government Advocate submits that evidence of P.W.1 being wholly trustworthy and when there remains no basic infirmity in the same, the trial Court’s rejection of the same on some flimsy grounds is unsustainable in the eye of law. It is also his submission that evidence of P.W.1 finds corroboration from the evidence of P.Ws.3 and 4. So according to him, there was no alternative on part of the trial Court but to record a finding of guilt against the respondent. With regard to the document Ext.A, the compromise petition, it is his submission the Court below has given unnecessary importance to the said document which should have been totally eschewed from consideration. Therefore, he contends that it is a fit case where the order of acquittal needs interference as the same is based on perverse appreciation of evidence leading to miscarriage of justice and resulting unmerited acquittal of the respondent from a heinous crime of rape. 6.Learned counsel for the respondent while supporting the finding of the trial Court has stated that the view taken by the lower Court can not be said to be based upon perverse appreciation of evidence and as per the settled position of law even if this Court arrives at a different finding, ordinarily the finding of the trial Court can not be set at naught, unless it is shown to have resulted grave miscarriage of justice because of improper appreciation and in a perverse manner or that there exists compelling reasons to upset the same. 7.Keeping the rival submission in mind it is felt proper at the outset to take note of the scope of this appeal in exercising the power for interference with the order of acquittal. It has been held in case of “State of Punjab v. Madan Mohan Lal Verma”, (2013) 56 OCR (SC)-425 that - “It is a settled legal proposition that in exceptional circumstances, the appellate Court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the Court below are found to be perverse, i.e. if the conclusion arrived at by the Court below are contrary to the evidence on record; or if the Court’s entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence.” So now let me proceed to examine the evidence on record so as to find out as to if the order of acquittal needs interference within the above parameters laid down as above. 8.Star witness from the side of prosecution is P.W.1, the victim. It is her evidence that she had been to the hilltop at a distance of 2 kms. from village to oversee the buffaloes grazing there. She has stated that on her way back, she met respondent near a bushy area and the respondent having asked about her going there, followed. It is next stated by the victim that suddenly thereafter the respondent embraced from her back which though protested was not listened to and then he may made her lie on the ground, removed her saree, saya and then went for sexually assaulting her in fulfilling his sexual lust. She states to have shouted which drew the attention of her mother and brother, who came to the place and saw her in that position. It is also her evidence that on her way back have she met her mother and sister and narrated the incident to them. She states to have shouted which drew the attention of her mother and brother, who came to the place and saw her in that position. It is also her evidence that on her way back have she met her mother and sister and narrated the incident to them. It may be stated that the victim is a spinster aged about 28 years. 9.It is the settled position of law that in case of rape finding of guilt can be rendered basing on the sole testimony of the victim provided the same does not suffer from any basic infirmity and the probability factors does not render it unworthy of credence, as a general rule, no corroboration need be insisted except from medical evidence where regard being had to the circumstances of the case, medical evidence can be expected to be forthcoming corroboration may, however, be insisted upon where a woman having attained majority is found in a compromising position and there is likelihood of her having made false accusation because of the instinct of self-preservation or when the probabilities factor is found to be out of tune. It has been held in the case of Narendra Kumar v. State (NCT of Delhi); AIR 2012 SC 2281 that :- “Conviction can be based on the sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the Court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix case becomes liable to be rejected.” Therefore, the evidence of victim P.W.1 and other evidence pilotted by prosecution in the trial now stand for being appreciated in the back drop of above applying the above tests. 10.Here the evidence of P.W.1 if given a careful reading goes to show that she has stated to have raised cry when respondent forcibly went for sexual inter course. But her prior narration remains that she had protested soon after she was embraced and it is not stated that she had then raised cry which runs to counter her later conduct as it was known by them to her that the respondent’s first action to have been actuated with evil intent. But her prior narration remains that she had protested soon after she was embraced and it is not stated that she had then raised cry which runs to counter her later conduct as it was known by them to her that the respondent’s first action to have been actuated with evil intent. This witness has also not stated that when respondent made her lie on the ground she had ever physically protested nor even she says about any threat or force to have been imparted by the respondent to prevent it so as to have a smooth sail. Rater it is stated that the respondent removed her saya and his own dress and then went for sexual inter course when she raised shouted. This narration itself brings doubt in mind, that though there was ample time for the victim to run away as the respondent must have taken time to undress himself leaving the victim when the place was open. Than also when the respondent removed victim’s saya, saree that too and in case, it was not out of her will, its but natural that there would have been push and pull and the wearing apparels are likely to have been torn. But these are neither stated nor proved. Although it is stated that hilltop is at a distance of 2 km from the village, it is not stated by P.W.1 as to what would be the approximate distance of the place of occurrence from the village so as to judge the credibility of her testimony that hearing her cry, her mother sent her brother and she also met her mother during her return journey. It further transpires from her evidence that when her brother arrived, he saw them in compromising position. Next it is not stated that she had ever used any force in any manner to restrain the respondent from going ahead in fulfilling his sexual lust during that period nor gives any explanation on that score. The evidence of the brother of the victim P.W.3 is that his sister by waking him from sleep told him to go as P.W.1 was. He has deposed that as he went closure, he found respondent and P.W.1 in a compromising position which made him stand there for a while, where after the respondent started running and was chased by him. He has deposed that as he went closure, he found respondent and P.W.1 in a compromising position which made him stand there for a while, where after the respondent started running and was chased by him. The evidence of this witness on a bare reading as per the sequence wise narration shows that the probability factors are not out of tune and it gives rise to a strong feeling in the mind that it is because of his presence in finding the respondents and the victim in a compromising position the incident is sought to be given a colour of rape although it was with the consent of P.W.1 and the likelihood of said allegations being levelled by P.W.1 out of the instinct of self preservation is not ruled out. This finds support from the distinctive features as those emanate from evidence of P.W.1 as stated above and also from the document Ext.A which is said to have been prepared in the village. In that document there is no mention of commission of rape by the respondent. This has been seized by the I.O. from the possession of P.W.3, the brother of the victim. The other suspicious feature remains and has been noted by the trial Court that P.W.1 states that where the incident took place, bushes of waist high were there and also some mahua trees and P.W.2 claims to have seen it by standing at a distance of 20 meters. Admittedly, P.W.1 and respondent accepting version of P.W.1 were lying on the ground. Next the evidence of P.W.3 is that his sister completely naked near her leg and it is also not stated that clothes were lying in a scattered manner being torn on any portion for drawal of any inference that those were removed forcibly by the respondent. Furthermore, there also remains no medical evidence, to support the version of P.W.1 particularly when it is the evidence of P.W.1 that she was made to lie with force on that land. In this state of affairs in evidence the delay in lodging F.I.R. on 10.04.1994 bears significance and that is when sought to be explained that it was because of the settlement attempted to be arrived, interestingly the document Ext.A reflects some dispute between the respondent and P.W.3 to have been settled. In this state of affairs in evidence the delay in lodging F.I.R. on 10.04.1994 bears significance and that is when sought to be explained that it was because of the settlement attempted to be arrived, interestingly the document Ext.A reflects some dispute between the respondent and P.W.3 to have been settled. When the factum of commission of rape has not been indicated in the said Ext.A, the inference arises regarding the non disclosure of the incident before the villagers on 09.04.1999 as there was no such occasion which further throws suspicion on the veracity of the prosecution case, the explanation having fallen flat. All these being cumulatively viewed, evidence of P.W.1 appears to be unworthy of credence and the prosecution is found to have not been able to establish the charge of rape beyond reasonable doubt. In view of the aforesaid discussion even on an independent analysis of evidence of prosecution, I am not persuaded to arrive at a view contrary to the one taken by the trial Court that prosecution has not been able to establish its case beyond reasonable doubt. So there arises no scope for holding the view of the trial Court in finding the appellant not guilty of commission of offence under Section 376 of IPC as based on improper and perverse appreciation of evidence leading to miscarriage of justice. Thus, the order of acquittal does not call for interference. 10.Resultantly, the appeal at the instance of State for setting aside the order of acquittal and recording a conviction against the respondent for commission of offence under Section 376 of IPC fails and is accordingly dismissed. Appeal dismissed.