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2014 DIGILAW 214 (ORI)

State of Orissa v. Pranabandhu Mishra

2014-03-29

D.DASH

body2014
JUDGMENT Being aggrieved by the order of acquittal passed by the learned Assistant Sessions Judge, Bargarh in S.T. Case No.163/17 of 1995 acquitting the respondent of the charge under Section 376 IPC, this appeal has been filed by the State. 2.Case of the prosecution in short is that on 17.11.1994, when the victim was alone in her house during evening hours as other inmates of the house had gone to attend a festival, the respondent entered there and forcibly committed sexual inter-course upon her. This fact was disclosed by the victim two months thereafter before the family members for which on 19.1.1995 a meeting was convened in the village by the brother of the victim where the respondent is said to have confessed his guilt but refused to submit the same in writing despite of the demand of the members of the Panchayat. So, finally, FIR was lodged against the respondent and the case was registered. After completion of investigation charge-sheet was submitted placing the respondent to be tried in the Court of law. 3.During trial, the prosecution examined 15 witnesses when the defence has examined one. The victim has been examined as P.W.1. P.Ws. 2 and 6 are her brother’s and the Medical Officers have been examined as P.W.12, 13 and 14 P.W.5 to 11 are the witnesses to the seizures, whereas P.W.7 to 9 are the persons who had attended the meeting convened after the matter was disclosed by the victim. A Primary School teacher has also been examined in this case as P.W.10. The Investigating Officer has been examined at last as P.W.15. 4.The defence in the case is that of complete denial and in the statement recorded under Section 313 Cr.P.C., it has been stated by the respondent that the wife of the complainant had taken a sum of Rs.5000/- from him as an advance to sell paddy but after taking the money, she avoided to give the paddy and also to return the money, despite repeated demand and so he says that this case has been foisted against him. 5.The trial Court after analysis of evidence let in by the prosecution has come to a conclusion that there was consent of the victim in such sexual intercourse and it was never a forcibly one. 5.The trial Court after analysis of evidence let in by the prosecution has come to a conclusion that there was consent of the victim in such sexual intercourse and it was never a forcibly one. In order to arrive at such finding, he has derived much support from the fact of non-disclosere of incident for a period of two months and other circumstances. 6.Learned counsel for the State submits that the appreciation of evidence let in by the prosecution as made by the trial Court in the present case is not proper and according to him, it is also erroneous. So he submits that the finding of acquittal based on the said appreciation of the evidence is perverse and has caused serious miscarriage of justice requiring interference with the power of this Court. According to him, the evidence of prosecutrix ought to have been relied upon for the purpose of fasterning the guilt upon the respondent. It is also his submission that the evidence of prosecutrix P.W.1 in this case ought to have been held to have been duly corroborated by the evidence of P.W.3, 4, 7, 9 and 10, wherein there arises no reason to disbelieve the factum of the respondent’s making extrajudicial confession before them to have committed sexual intercourse against the will of P.W.1. Thus he submits that the appeal has to be allowed. 7.Learned counsel for the respondent submits that in the present case the appreciation of evidence as made by the trial Court is just and proper and going for appreciation, he has gone to discuss in detail, the evidence of P.W.1 and then has rightly entertained doubt in the veracity of the testimony of the said witnesses relating to extrajudicial confession and that too by finding out justifiable reasons to do so. Therefore, he submits that there arises no infirmity in the ultimate finding rendered by the trial Court. According to him, the interference in this appeal is not permissible simply because a different view can be taken on the basis of the evidence without arriving at a conclusion that there has been such erroneous appreciation of evidence leading to serious miscarriage of justice. It is also his submission that the trial Court has rightly disbelieved the entire theory of rape as projected by the prosecution. It is also his submission that the trial Court has rightly disbelieved the entire theory of rape as projected by the prosecution. 8.The settled position of law regarding the powers to be exercised by High Court in 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 and acquitted the accused, the High Court in appeal cannot interfere with such finding but when there is perverse finding based on erroneous appreciation of evidence and a serious miscarriage of justice has been caused, the High Court has ample power to reverse that finding. 9.With the above rival submission let me proceed to examine the evidence let in by the prosecution in the present case. P.W.1 is the star witness for the prosecution, it has been stated by her that on the date of occurrence the respondent came to her house when she was at the upstair and seeing the respondent coming when there was no body in the house she objected to it. It is further stated by the P.W.1 that respondent made her lie on the ground, removed the cloth inserted his penis part into the vagina. It has been next stated that the penetration continued for a good and considerable time and in spite of the fact that she wanted to be rescued, she ultimately could not and the intercourse was over. It is further stated that the respondent asked her not to disclose the incident before anybody as in that case she would be stabbed. Interestingly enough this witness thereafter maintained total silence for a period of three months and thereafter on one fine morning she disclosed it before the wife of her brother who in turn told to her husband and then to the husband’s younger brother when the matter was reported in writing at the police station. Interestingly enough this witness thereafter maintained total silence for a period of three months and thereafter on one fine morning she disclosed it before the wife of her brother who in turn told to her husband and then to the husband’s younger brother when the matter was reported in writing at the police station. Such a long silence at the first instance goes to throw doubt on the veracity of testimony of this P.W.1 more particularly, when it is there in her evidence that the respondent was in frequent visiting terms to their house and they were gossiping with all their family members. The evidence of the prosecutrix is not finding support from the medical examination reports under Ext.3 & Ext.5. When Ext.5 reveals that during the examination 30.01.1995, the victim was carrying for about 6 to 8 weeks, she is totally silent in the matter. It is stated by the victim that she was unmarried and as regards pregnancy none of the family members of the victim are also stating anything during the trial. It is also not the prosecution case that this respondent is the author of this pregnancy. On the other hand the prosecution is not giving any explanation as to who is responsible for the pregnancy. The next question comes regarding extra judicial confession. P.W.4 states in his evidence that accused initially denied to have committed rape upon P.W.1 on being asked in the village meeting and after much persuasion, he confessed to have done so. P.Ws.7, 8 and 9 also stated that respondent was repeatedly persuaded by P.W.2, P.W.4 to confess the guilt, where after respondent stated to have committed rape on the victim. It is evident that the persistent asking to confess the guilt before the Panchayat, when initially there was denial, respondent stated so. The above circumstances clearly suggest that the confession, if any was not voluntary but was obtained by repeated persuasion and threats when respondent was alone in the gathering. In that view of matter as it appears the trial Court has rightly discarded the evidence of all the prosecution witnesses on the score that it is the respondent who has made an extra judicial confession before them as regards the commission of rape upon P.W.1. In that view of matter as it appears the trial Court has rightly discarded the evidence of all the prosecution witnesses on the score that it is the respondent who has made an extra judicial confession before them as regards the commission of rape upon P.W.1. 10.The victim in this case is more than 32 to 35 years of age and she has stated in her deposition to be aged around 42 years. The long silence of the victim in the matter and in the absence of any other evidence to accept the threat perception as has been said by P.W.1, in my considered view the trial Court has taken a reasonable view in holding that the prosecution has failed to establish the charge against the respondent and in this case, the evidence of victim is not receiving corroboration when the victims evidence is not solely reliable in view of the fact that the probability factors are not out of tune. Moreover, it is there in the evidence of P.W.1 that the respondent after the alleged incident had several times gone to the house of P.W.1. In view of aforesaid discussion, I do not find any infirmity in the finding of the trial Court and the same is also found to have been based on proper appreciation of the evidence taking the reasonable view of the matter. Therefore, the acquittal recorded in favour of the respondent does not merit interference in this appeal. 11.Resultantly, the appeal stands dismissed. Appeal dismissed.