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2014 DIGILAW 302 (ORI)

STATE OF ORISSA v. RADHAKANTA BEHERA

2014-05-02

D.DASH

body2014
JUDGMENT : D. DASH, J. 1. The State has called in question the order of acquittal passed by the learned Assistant Sessions Judge-cum-Civil Judge (S.D.), Balasore in Sessions Trial No. 21/82 of 1993 acquitting the respondent the charge u/s 376(1), I.P.C. The short case of the prosecution is that the victim P.W. 7 was working as a maid servant in the house of the respondent and used to stay in the house. It is alleged that five months prior to the lodging of the F.I.R. one night the respondent came near her, squeezed her breasts and committed sexual intercourse against her will and consent. It is also stated that when the victim protested, the respondent then had assured that he would marry her and keep her as his wife. It is also alleged that in the same way on three different occasion, the respondent enjoyed the victim sexually. In this way when she became pregnant, the respondent was requested by her for marriage and it is stated that the respondent then instead of instantly backing out of his assurance, went on deferring the matter every time. Since like this, four months elapsed, the victim could well guess the respondent's mind of cheating that the promise was only to fulfill his sexual lust. So, she informed the matter to her parents. A village meeting was convened where the respondent although is said to have confessed the guilt as also the author of such pregnancy caused to the victim, did not agree for marriage. Therefore, on 10.03.1992 F.I.R. was lodged which led to the registration of the case and commencement of investigation. Finally on completion of investigation, charge-sheet was placed against the respondent for being tried in the court of law for the above offence. 2. The defence took the plea of complete denial and false implication in view of the land dispute existing between him and the victim's father and also his enmity with other villagers. During trial, prosecution examined eight witnesses. P.W. 7 is the victim, when P.W. 2 is her father. P.Ws. 1, 5 and 6 are the witnesses said to have been present in the meeting where the accused is said to have confessed his guilt with regard to authorship of pregnancy caused upon the P.W. 7. P.Ws. 3 and 4 are the doctors, who examined victim and conducted the ossification test of the respondent. P.Ws. 1, 5 and 6 are the witnesses said to have been present in the meeting where the accused is said to have confessed his guilt with regard to authorship of pregnancy caused upon the P.W. 7. P.Ws. 3 and 4 are the doctors, who examined victim and conducted the ossification test of the respondent. The investigation officer has been examined as P.W. 8. Besides the above, the prosecution has proved the F.I.R. as Ext. 4 and other documents. The defence has examined none despite of the opportunity being given. 3. Learned counsel for the State submits that the Trial Court ought to have believed the evidence of P.W. 7 and that would have been found to be sufficient to convict the respondent. It is also his submission that the finding of the trial court that P.W. 7 was a consenting party to the said incident is based on improper appreciation of evidence. It is his further submission that the Trial Court has erred in law by not concluding that the victim was below 16 years of age at the relevant point of time and, as such, her consent, if any, was immaterial. In view of the above, he urges that the trial court's improper appreciation of evidence having formed the foundation for the acquittal, the same has caused grave miscarriage of justice. So, he urges for interference with the said order of acquittal in this appeal. 4. Learned counsel for the respondent submits that in view of the evidence let in by the prosecution and upon their proper analysis, the trial court has quite reasonably given the finding that it was a consensual sexual act holding the victim to be more than 16 years of age at the relevant point of time in view of the medical and other evidence. Therefore, she urges that the finding is not at all perverse being based on proper appreciation of evidence, the order of acquittal calls for no interference. 5. Therefore, she urges that the finding is not at all perverse being based on proper appreciation of evidence, the order of acquittal calls for no interference. 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 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. 6. Keeping the aforesaid rival submissions in mind and also the settled position of law, as stated above, it is necessary to have a look at the evidence of the victim P.W. 7 and other witnesses so as to examine the sustainability of the order of acquittal. First of all, with regard to the age of the victim, it is seen that P.W. 7 has claimed herself to be aged about 13 or 14 years at the relevant point of time. The father of the victim has also deposed that the victim was then aged about 14 years. Radiologist has been examined as P.W. 4 and his ossification test report is Ext. 3. He has estimated the bone age of the victim to be more than 15 years and less than 17 years during the time of examination. P.W. 3 has also assessed the dental age of the victim to be 14 to 17 years. There is no documentary evidence with regard to the age of the victim. The only document, i.e., horoscope although shows the age of the victim to be below 16 years, that horoscope has also not been proved by the person who had prepared it i.e., the maker. The investigating officer has seized the admission register of the school containing entry of the admission of the victim therein. The only document, i.e., horoscope although shows the age of the victim to be below 16 years, that horoscope has also not been proved by the person who had prepared it i.e., the maker. The investigating officer has seized the admission register of the school containing entry of the admission of the victim therein. The date of birth has been indicated there as 25.03.1991. But that also has also not been proved in accordance with law. P.W. 7 is silent as to her admission in any school when she appears to be a literate. The trial court appears to have rightly taken note of, the tendency of the parents to reduce the age while putting their children in the school. Cumulatively viewing all these, the trial court has taken the view that the victim was not below 16 years of age at the relevant point of time. The view, in my considered opinion, appears to be based on proper appreciation of evidence and upon due analysis. Therefore, this Court finds no justification to accord disagreement to it in the absence of any strong and compelling reason. 7. Now, coming to the incident, it is the prosecution case that the victim was working as a maid servant in the house of the respondent and used to stay there. P.W. 7 has deposed that one night when she was sleeping, the respondent came and enjoyed her sexually. Her evidence is to the effect that she shouted when respondent stopped her and immediately promised her to marry and thereafter in this way continued to sexually exploit her. It is her evidence that the respondent was having two wives and children and as stated by P.W. 2, mother of the victim was also serving under the respondent. But she has never disclosed about the incident to anybody in the house or outside and it is only after the bulging of her belly, she told to her mother that too on being asked. She asserts that first she disclosed to her mother about her pregnancy but the mother has not been examined. She has stated that altogether five to six times she was sexually enjoyed by the respondent but on no occasion anybody did get a trace of it. It is also her evidence that her father's house and the house of the respondent are just intervened by a tank. She has stated that altogether five to six times she was sexually enjoyed by the respondent but on no occasion anybody did get a trace of it. It is also her evidence that her father's house and the house of the respondent are just intervened by a tank. The respondent is aged about 45 to 47 years having two wives and four to six children who reside under one roof. It is extremely hard to believe that such sexual relationship between the victim and the respondent would be continuing in the house having so much number of inmates but would not even come to be known to any of the family members. The victim did not disclose it to anybody at any point of time and thus maintaining total silence till her pregnancy become noticeable rather appears to be a conduct favouring the case of consent. The trial court's conclusion is that the sexual relationship was with consent and given a colour of without consent as the pregnancy came to the notice. Taking into consideration the other evidence that the victim was already aware that the respondent was an aged and married person having wives and children it is improbable that the promise to marry and assurance even if was given by the respondent would satisfy the victim in allowing him to enjoy sex which is her precious treasure and thereby exploit her. The father of the victim does not say the victim to have ever disclosed that the respondent first committed sexual intercourse without her will and consent and that she later allowed the same, believing his promise to marry. His evidence is simply on the score that it was reported by the victim P.W. 7 that the respondent is the author of such pregnancy and respondent had assured to marry but refused. In view of all the above, the trial court's conclusion is not found to be based on improper appreciation of evidence and this Court finds no such reason so strong and compelling to expressed disagreement. 8. Next, coming to the extra judicial confession of me respondent, P.W. 1 is categorical that respondent refused to attend meeting and so also P.W. 6 and in view of above the evidence of P.W. 5 and P.W. 2 appears to have been rightly doubted. 8. Next, coming to the extra judicial confession of me respondent, P.W. 1 is categorical that respondent refused to attend meeting and so also P.W. 6 and in view of above the evidence of P.W. 5 and P.W. 2 appears to have been rightly doubted. Similarly P.W. 7 says that respondent simply confessed to be the author of pregnancy and nothing more. In view of above, the Trial Court appears to have rightly discarded the prosecution evidence on the above score. Cumulatively viewing the evidence of the prosecution, in the facts and circumstances of the case, the finding of the trial court that it was a case of consensual sexual act does not appear to be based on improper appreciation of evidence and no such infirmity is noticed therein so as to stand as strong and compelling reason for being differed with. In view of the aforesaid discussion, this Court finds that the order of acquittal does not warrant interference. The Government appeal, thus, merits no acceptance and the same stands dismissed.