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2014 DIGILAW 245 (ORI)

State of Orissa v. Govinda Rao

2014-04-11

D.DASH

body2014
Judgment In this appeal, the State has called in question, the order of acquittal passed by the learned Asst. Sessions Judge, Bhawanipatna in Sessions Case No. 9/5 of 1995 acquitting the respondent of the charges under Section 366 & 376 of IPC for kidnapping the victim girl and committing rape upon her. 2. Case of the prosecution in short is that on 31.10.1994 around 9 p.m. the complainant's daughter aged about 13 years bad gone to take bath in the pond and then the respondent forcibly took his daughter from the place by tying and closing her mouth took her a nearby 'Donger' and committed rape upon her. Search being made, the fact came to light and then on being asked the daughter of the informant narrated the incident in detail. Finally the matter was reported by the complainant at Keshinga Police Station, which necessitated the registration of the case and commencement investigation. On completion of investigation the charge-sheet having been submitted placing the respondent to be tried in the Court of law, the respondent faced the trial. 3. The defence case is one of complete denial. 4. In order to bring home the charges against the respondent, the prosecution in this case has examined 9 witnesses whereas the defence has examined one. 5. The Trial Court on going through the evidence let in by the prosecution has arrived at a conclusion that the victim daughter of the complainant was then aged about 17 years. Next going to the evidence with regard to the kidnapping and rape upon the victim, it has been held that there was clear consent on the part of the victim girl in having the sexual enjoyment with the respondent and the victim had followed. With these findings the respondent has been acquitted which is now attacked question in this appeal. 6. Learned counsel for the State submits that the appreciation of evidence with regard to the age of the girl in the present case has not been proper and on proper analysis of evidence, it ought to have been accepted and held that the victim was around 13 years of age as on the date of commission of alleged offence. It is his further submission that the evidence on record with regard to the kidnapping and rape has not been properly appreciated. It is his further submission that the evidence on record with regard to the kidnapping and rape has not been properly appreciated. The Trial Court according to him has erred in law by holding that it is a case of consent on the part of the victim girl in having the sexual enjoyment with the respondent. Therefore, he urges that the order of acquittal based on improper appreciation of evidence is liable to be set at naught to prevent miscarriage of justice. However, he fairly places the fact that victim and respondent have married after trial and are leading happy conjugal life with children. He has placed a letter of I.I.C., Kesingha Police Station dated 30.03.2012 with the annexure i.e. the statement of father of victim. He of course leaves that it may be taken into consideration as per law. 7. Learned counsel for the respondent on the contrary submits that the finding rendered by Trial Court is based on proper appreciation of evidence and is having rightly found the age the victim to be more than 17 years of age as on the date of occurrence, the case of consent has also been rightly held by the Trial Court in view of the evidence on record and other attending circumstances. Therefore, he submits that the appeal is devoid of merit. 8. 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. 9. 9. On such rival submission, this Court is now called upon to first of all ascertain as to whether the finding in respect of the age of the victim girl is proper or not. Prosecution in order to prove the age has examined the father of the victim girl who is P.W.1. It has been deposed by him that his daughter was aged around 13 years, but in cross-examination he is not able to give the exact date of birth of the daughter. Again at the end he has stated that the victim girl was born on 18.05.1980. Whereas the school admission registers which has been proved by the Headmaster, P.W.6 shows the date of birth of the victim girl as 28.05.1980. According to him, the same has been recorded as per the version of P.W.1. P.W.1 when states the date of birth of the victim as 18.05.1980, the admission register shows slight variance with regard to that and that is not of much significance and fatal to entertain doubt. However, it is though stated that the victim girl was reading in Madhupur Ashram School, the admission register of that Ashram School has not been proved from the side of the prosecution which could have substantiated the earlier entry of the date of birth of the victim as 28.05.1980. There has been non production of any horoscope with regard to the date of birth, when P.W.1 has stated to have got the horoscope prepared; is also not giving any explanation for not producing of the same. P.W.2 in his evidence has simply stated that the girl was reading in Class-VII. In her cross-examination, she has feigned ignorance with regard to the age and also the date of birth. Next comes the important evidence of the Radiologist, P.W.7. He on conducting the ossification test has found the approximate age of the victim girl i.e., the bone age of the victim girl to be 14 years, and just on the verge of completion of 15 years. In this cross-examination he has admitted that with this there may be a variance of two years on either side and according to him ossification test is not the surest test. Therefore, the Trial Court has taken said evidence on the point into consideration in arriving at a conclusion that the victim girl was more than 17 years of age as on the date of occurrence. Therefore, the Trial Court has taken said evidence on the point into consideration in arriving at a conclusion that the victim girl was more than 17 years of age as on the date of occurrence. I do not find any such infirmity in appreciation of such evidence on the above aspect in finally arriving at the conclusion that the victim girl was more than 17 years of age at the date and time of occurrence, looking at the general tendency of parents to state the age of wards by lowering it to certain extent. 10. Coming to the aspect of kidnapping and rape, it is the evidence of the victim girl P.W.2 which matters the most. She has stated that she had been to 'Baghbuda Bandh' for taking bath, when the accused came, put cloth on her mouth and showing her a knife took her near 'Dongar' through the bank of the river and then committed rape upon her. The evidence on record shows that there is no road from that tank to the 'Dongar' and also to the river. It is also there in the evidence that it was a jungle area and there were thorns and bushes with existing trees. The evidence on record further reveals that one has to cross a check gate, two road side hotels (dhabas as commonly said) and a paper mill to go from the village Bagad to Kudlipada and if one goes to village Karlupada to bank of river, one has to go to the Balangir Chhak which is near Keshinga Railway Station. The evidence is also there that there are number of houses near that Chhaka and also in the village and one has to cross those in order to reach that 'Dongar'. There is also a godown nearby the road and a factory near that 'Dongar'. It is also the evidence of P.W.1 that a number of vehicles used to pass on that way. The evidence shows that the paddy fields are also situated nearby. So doubt arises in the mind that if such was the situation, the respondent how could forcibly take the victim girl from near that place to the 'Dongar' covering a long way, which could not even be noticed by one. It is really unbelievable. The evidence shows that the paddy fields are also situated nearby. So doubt arises in the mind that if such was the situation, the respondent how could forcibly take the victim girl from near that place to the 'Dongar' covering a long way, which could not even be noticed by one. It is really unbelievable. It is also the evidence of the victim girl that all through she had not raised any hullah, and when she crossed all the distance from upto the 'Dongar'. Moreover, it is very hard to accept that the respondent could forcibly take P.W.2 such a long distance. It is, stated by P.W.2 that she was going ahead followed by respondent who was forcibly taking her and he was following by touching her body with one hand and shutting her mouth with other, then by dragging showing a knife. Such evidence appears to be quite absurd. Except the above, evidence of victim girl, there remains no other corroborative evidence. In view of the above, as those emanate from the evidence, the version of victim girl on the score has rightly been found to be unreliable to fasten, the guilt upon the respondent as regard the commission of offences of kidnapping and rape, when as above discussed it rather shows that the victim followed the respondent all through. Therefore, I do not find the Trial Court to be committed any error in ultimately acquitting the accused which is thus not liable to be interfered in this appeal. 10. Resultantly, the appeal stands dismissed and the order of acquittal is confirmed. Appeal dismissed.