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2014 DIGILAW 282 (ORI)

State of Orissa v. Parameswar Giri

2014-04-23

D.DASH

body2014
Judgment The State has called in question the order of acquittal dated 27.09.1995 passed by the learned Asst. Sessions Judge, Rairangpur in S.T. Case No. 02 of 1995 acquitting the respondent of the charge under Section 376 of IPC. 2. Prosecution case in short is that on 09.11.1993, the prosecutrix had been to the house of the respondent for husking paddy. At about 7 pm she was returning. It is then stated that the respondent was hiding his presence behind one 'Simba' tree and finding the prosecutrix alone respondent caught hold of her, dragged her by gagging. In that way, he took her through a narrow passage near mango tree. It is further stated that giving threat her to kill in case she raised hullah, he made her lie on the ground and lifting her wearing saree and saya upto waist level, squeezed her breasts and committed sexual intercourse against her will. It is the further case of the prosecution that while leaving, the respondent threatened the prosecutrix not to disclose the same to anyone. After the incident, the prosecutrix on being questioned by her sister-in-law about the reasons of her crying she maintained silence because of the threat perception. It is stated that again on 06.03.1994 when the prosecutrix was returning from the house of the aunt of the respondent, she was caught hold of by the respondent around 9 pm and then respondent gagged her and by giving further threat pulled her down and threatening her to take away of her life, lifted her wearing apparels upto the waist level forcibly committed sexual intercourse. While leaving she was further given the threat not to disclose. It is because of the repeated sexual intercourse, the prosecutrix got pregnant. On 17.06.1994, sister-in-law of the prosecutrix and other ladies could detect the pregnancy. So the prosecutrix was questioned about the author when she had no other option but disclosed the incidents which had taken place. Therefore, the Sarpanch and other villagers were informed and the respondent was asked about it. Although the respondent was then was asked to accept the complaint as his wife, he refused. The prosecutrix was taken to the house of the respondent for living her there but the respondent did not come out of the house and on the other hand his mother assaulted the prosecutrix joined by the sister-in-law of the respondent. Although the respondent was then was asked to accept the complaint as his wife, he refused. The prosecutrix was taken to the house of the respondent for living her there but the respondent did not come out of the house and on the other hand his mother assaulted the prosecutrix joined by the sister-in-law of the respondent. The matter was orally reported at the police station and when police asked to take shelter in the Court of law on 22.06.1994, complaint was filed in the Court of learned S.D.J.M. Rairangpur. 3. The said complaint in turn was forwarded under Section 156(3) of the Code of Criminal Procedure to the police for investigation and, finally charge-sheet being submitted, the respondent faced the trial for commission of offence under Section 376 of IPC. 4. During trial the prosecution examined as many as ten witnesses when the defence examined none. Star witnesses for the prosecution is the prosecutrix, P.W.1, P.W.2 is the brother's wife of the prosecutrix, P.W.3 is a relation whereas P.W.4 is the brother of the prosecutrix. The Sarpanch has been examined as P.W.6, when P.W.5 is a co-villager, P.W.7 has been examined as regards the Panchayati that was held in the village. The doctor who had the occasion to examine the accused has come to the witness box as PW.8 and the other doctor who had examined the prosecutrix has been examined as P.W.9. The Investigating Officer of the case at the end has been examined P.W.10. From the side of the prosecution besides the oral evidence, the F.I.R. i.e., the complaint which was forwarded to the police treated as FIR has been marked Ext. 1, the medical reports have been marked as Exts. 2 and 5 besides other documents. 5. The Trial Court upon analysis of evidence has acquitted the respondent holding the case to be one of consensual sexual relationship. 6. Learned Counsel for the State submits that in this case, the Trial Court had no reason to discard the evidence of the prosecutrix as the same is wholly reliable and free from any such basic infirmity. It is also his submission that the solitary testimony of the prosecutrix in the particular case is enough to sustain the charge against the respondent. According to him there is also ample corroborative evidence. It is also his submission that the solitary testimony of the prosecutrix in the particular case is enough to sustain the charge against the respondent. According to him there is also ample corroborative evidence. The evidence of prosecutrix P.W.1 finds full support from other evidence of the relations as well as the independent persons of the village. Therefore, according to him the finding rendered by the learned Asst. Sessions Judge is based on improper appreciation of evidence and as such is unsustainable in the eye of law and it has caused grave miscarriage of justice. In that view of the matter, he urges for setting aside the order of acquittal in this appeal. 7. Learned counsel for the respondent while supporting the finding rendered by the Court below has further placed the evidence of P.W.1 before this Court in course of his argument. It is his submission that on a plain reading of the evidence of P.W.1, it can be said that the case of forcible sexual intercourse as projected in the complaint petition giving rise to the trial is an afterthought. According to him, the Court below has rightly taken into account the evidence of P.W.1 along with all other evidence as well as the circumstances as those emanate therefrom to arrive at a conclusion that no case under Section 376 of IPC stands against the respondent. So his submission is that the appeal bears no 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 reason 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. 9. Keeping the aforesaid submission in mind as well as the settled position of law with regard to the scope of this appeal, let's first of all examine the evidence of P.W.1. Prosecution case is that on two occasion the respondent raped the victim, once i.e., four days prior to the Kali Puja and next four day prior to the Shivaratri in the year 1994. Stating about the occurrence which took place first, P.W.1 has stated that the respondent during evening hours came near when she was returning home carrying paddy in a basket and a dibiri (uncovered small lamp). It has been stated that when she reached near a guava tree near the, backyard of the respondent, she was dragged by the respondent to a lane. It is further-stated that when she protested the respondent gagged her and thereafter finally committed sexual intercourse against her will on the verandah of his uncle's house. This is said to be against her will and consent when she had struggled to extricate herself from the clutch. It is stated by P.W.1 that she was given the threat not to disclose about it. It has been further stated that again the same incident took place four days prior to Shiv Ratri when she was returning home and then the respondent caught hold of her pulled her down lifting her saree and saya, committed sexual intercourse against her will. Fact remains that this P.W.1 did not disclose about the incident happening twice to anybody and in this way time passed and only when P.W.1 became pregnant, the fact was disclosed and made known. Then also being asked she disclosed about the incidents that the respondent had twice sexually exploited her, which has resulted the pregnancy. So as it appears there has been long non-disclosure of such incidents by the victim, the explanation is being given that it was because of threat. When Ext. 1 reveals that first incident was not disclosed, during evidence she has stated to have disclosed to her sister-in-law who is silent about it. Such non-disclosure and non-response in the matter seriously raises eye brows on the veracity of the prosecution case. The victim was residing in her family with her brother and other members and the respondent is her neighbour. She has not stated anything about the criminal antecedent of the respondent. Such non-disclosure and non-response in the matter seriously raises eye brows on the veracity of the prosecution case. The victim was residing in her family with her brother and other members and the respondent is her neighbour. She has not stated anything about the criminal antecedent of the respondent. If such an incident took place not only once but twice, it is extremely hard to accept that simply for the threat, the prosecutrix would maintain total silence for all the period till the detection of her pregnancy by the family members, when also there appears hardly any reason so as to entertain fear to that extent in mind having her stay in the family with brother and others. During cross-examination, this P.W.1 has further stated that after the incident in the month of Kartika and prior to the sexual intercourse in the month of Falguna, she and the respondent had the sexual enjoyment twice in a lonely place-near Kirtan Padia of the village during night. This really tilts the balance against the case of forcible sexual intercourse when cumulatively viewed with other circumstances as discussed. The evidence of the prosecutrix that, she and the respondent were freely mixing and enjoying sex again and again with the age of the prosecutrix being 26 years. Also being a lady of that age with maturity and understanding when such incident of forcible intercourse had happened, that she was successively raped by the respondent, there remains no justification standing to reason that she would be still having sex with respondent. All these rather lead to show a case of consensual sex relationship. The prosecutrix evidence in view of all the above discussion is not found solely reliable for fastening the guilt upon the respondent. P.W.2 when states to have been told by P.W.1 about the first incident of rape upon her, she is silent as to the response thereafter. More so, it is also stated by her to have been told before police that P.W.1 and respondent used to meet regularly during evening hours near a mango tree and she had been warned by her not to continue with this and had also told her mother-in-law. This witness also states to have not disclosed about the first incident out of fear. Such evidence further supports the inference already drawn as regards consensual sex between the two. This witness also states to have not disclosed about the first incident out of fear. Such evidence further supports the inference already drawn as regards consensual sex between the two. In view of the above state of affair in the evidence, I do not find the Trial Court to have committed any such mistake in holding the case to be one of consensual sexual intercourse and no such infirmity is found in the view taken by the Trial Court upon analysis of evidence. For the aforesaid discussion and reasons, I do not find any justifiable reason to disturb the finding recorded by the Trial Court in acquitting the respondent. 10. Resultantly the appeal stands dismissed. Appeal dismissed.