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2014 DIGILAW 213 (ORI)

State of Orissa v. Benudhar Biswal

2014-03-29

D.DASH

body2014
JUDGMENT D. DASH, J. : Being aggrieved by the order of acquittal passed by the learned Additional Sessions Judge, Sambalpur in S.T. Case No.188 of 1994 acquitting the respondent of the charge under Section 376 and 454 IPC this appeal has been filed by the State. 2.Case of the prosecution in short is that on 23.2.1994 during noon hours when the parents of the victim were absent in the house and had gone to do their work living the victim alone, the respondent finding it to be the opportune moment, entered into the house and dragged the victim to a nearby dilapidated house. It is alleged that there he committed sexual intercourse upon her. It is further stated that after committing the rape, he left the victim there and the victim came to the house in a crying condition. When, her mother came for lunch, she was told about the incident. The victim girl expressed the incident by signs and gestures as she was not able to speak. The mother of the victim then went to the house of a neighbour and there the respondent was present. The respondent was challenged by the mother of the victim about the said act but he went on to deny the same. So, the mother of the victim brought the victim girl to her husband working at a distance and thereafter the matter was reported at Rengali Police Out Post which necessitated registration of a case against the respondent. On completion of investigation charge sheet was submitted, placing the respondent for trial in the Court of law for the aforesaid offences. 3.During trial the prosecution examined six witnesses out of whom P.W.1 is the father of the victim when P.W.2 is the mother. The victim girl in the case has been examined as P.W.5, P.W.3 and 4 are the doctors who had examined the respondent and the victim girl respectively. P.W.6 is the Investigating Officer. The defence during trial has not adduced any evidence and has taken the plea of complete denial and innocence. 4.Learned counsel for the state submits that the trial Court without appreciating the evidence in a proper manner and having rather erroneously appreciated the evidence in arriving at a finding that the prosecution has failed to establish the charge of rape against the respondent. 4.Learned counsel for the state submits that the trial Court without appreciating the evidence in a proper manner and having rather erroneously appreciated the evidence in arriving at a finding that the prosecution has failed to establish the charge of rape against the respondent. It is also his submission that the view taken by the trial Court is absolutely uncalled for on the face of the evidence, let in by the prosecution during the trial. Therefore, the finding is said to be perverse and has caused serious miscarriage of justice. It is, thus, submitted that this order of acquittal needs interference. Learned counsel for the respondent on the other hand supports the finding rendered by the trial Court, in ultimately holding the appellant to be entitled to an acquittal of the charge of rape. It is also his submission that the evidence of victim P.W.5, when read with the evidence of her father, mother and two doctors examining the victim and respondent would go to show that the prosecution has failed to establish the charge of rape. Therefore, he urges for dismissal of this appeal. 5.The settled position of law regarding the powers to be exercised by High Court in an appeal against the order of acquittal is that while High Court has full powers to appreciate the evidence upon which an order of acquittal is based and to act on its own thereof, it will not do so lightly and will be slow to reverse an acquittal, except for strong and compelling reasons when it differs from that of the trial Court. The paramount consideration in the matter is to avoid miscarriage of justice. Of course where two views are possible and the trial Court has taken a reasonable view in acquitting the accused, the High Court in appeal cannot interfere with such finding except when the finding is perverse, based on erroneous appreciation of evidence and a serious miscarriage of justice has been caused, when the High Court has ample power to reverse that finding. 6.On such rival submission and keeping in view the settled principles of law relating to interference with the order of acquittal as stated in aforesaid para, let me go to the evidence let in by prosecution and examine as to whether the finding rendered by the trial Court is based on proper appreciation of the same or not. 6.On such rival submission and keeping in view the settled principles of law relating to interference with the order of acquittal as stated in aforesaid para, let me go to the evidence let in by prosecution and examine as to whether the finding rendered by the trial Court is based on proper appreciation of the same or not. P.W.5 is the victim girl who is a dumb witness. She has narrated the incident that the respondent came to her house when she was alone, dragged her to a nearby house which was abandoned and then committed rape on her after squeezing her breasts. P.W.2 stated that P.W.5 by her gesture communicated that one of the boys of the family which use to deal with fish in their locality had committed the rape. The evidence of P.W.5 is to the effect that the accused has two brothers and they are within the same age group with gap of one year or so and they all look alike. It has also been deposed by her that if they stand in a row, it is not distinguishable. In view of such evidence, the prosecution was under obligation to lead further evidence strictly with regard to identity. Again adverting to the evidence of mother of the P.W.5 that is P.W.2, it is seen that she has deposed that when she had came to take lunch to the house with another women called Bhagabati, P.W.5 narrated the incident to her. So she went to the house of a neighbour where the respondent was present. She further states there she challenged the respondent as regards the act and the respondent denied to have done any such act in the house with the victim P.W.5. P.W.2’s companion Bhagabati has not been examined from the side of the prosecution. It may be stated here that from the evidence of P.W.2, it has been further elicited that the respondent has two other brothers and one sister. Here, if that Bhagabati would have been examined in the case then, it would have further thrown light as to whether it is respondent who was there in the house of that neighbour when mother of the victim came there and challenged him or any of his other brothers. Here, if that Bhagabati would have been examined in the case then, it would have further thrown light as to whether it is respondent who was there in the house of that neighbour when mother of the victim came there and challenged him or any of his other brothers. Adverting to the evidence of P.W.5, it is seen that she has stated that during the incident she tried to flee away from the place and the accused bit her cheek squeezing her breasts and nail marks were there on breasts. Also due to this struggle, she had sustained scratches on her back and there was oozing of blood. However, the doctor who had examined P.W.5, did not find any visible injury either on her private part or any part of her body. The doctor has excluded the commission of rape upon the victim girl in recent past. Evidence of the other doctor, P.W.3 is to the effect that when he examined the respondent he found smegma present in his penis and he has further stated that such presence of smegma signifies that the respondent had no sexual inter-course with any women during 24 hours since the time of examination. The positive evidence being that there was bleeding from the vagina and the under garments were drenched, the report of the chemical examiner negative the same, when no such blood stain on the chadi of the victim nor on the full pant of the respondent is said to have been detected. The evidence of P.W.5 is not of such nature so as to be wholly relied upon to fasten guilt upon the respondent and in view of above discussion it cannot be said to be free from basic infirmities. Also no such corroborative evidence on material particulars stands to support the evidence of P.W.5. Therefore, all these above when cumulatively viewed creates doubt in the mind as regards the commission of rape by this particular respondent. Evidence of the prosecution witnesses thus on analysis as aforesaid are found to be deficient to establish the charge of rape against the present respondent. Therefore, all these above when cumulatively viewed creates doubt in the mind as regards the commission of rape by this particular respondent. Evidence of the prosecution witnesses thus on analysis as aforesaid are found to be deficient to establish the charge of rape against the present respondent. 7.In view of aforesaid discussion, I find no infirmity in the finding of the trial Court in arriving at a conclusion that the respondent is not the author of the crime and it is found to have been based on just and proper appreciation of evidence on record and the view appears to be reasonable. Therefore, the acquittal calls for no interference. 8.The result thus stands with the dismissal of the appeal filed by the State. Appeal dismissed.