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2014 DIGILAW 665 (ORI)

State of Orissa v. Jagadish Pujari

2014-10-15

DEBABRATA DASH

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JUDGMENT DEBABRATA DASH, J. 1. The State in this appeal has called in question the order of acquittal passed by the learned Assistant Sessions Judge, Rayagade in S.C. No. 312 of 1994 acquitting the respondent of the charge under section 376, IPC. 2. The prosecution case is that on 2-5-1994 around 10.00 a.m. the victim (P.W.4) said to be minor then had been to the cultivable land. It is stated that the respondent all of a sudden caught hold of her from behind; made her lie on the ground and raped her. The respondent after commission of rape upon the victim threatened her with dire consequences in case of disclosure of same before others. It is also stated that the victim sustained injuries on different parts of her body. However, out of fear she did not disclose the fact to her parents and so informed to her friend, namely, Kunda keeping in mind that Kunda would inform her parents. But when she ascertained Kunda to have maintained silence, she disclosed the incident before her relation Radha (P.W. 3), who in turn told the same to the parents of the victim. On 13-5-1994 written F.I.R. was lodged at Kashipur Police Station. This necessiated registration of the case and commencement of the investigation. In course of the investigation, victim and other witnesses were examined; both victim and the respondent were also put to medical test and necessary seizure of their wearing apparels were made followed by their chemical examination. On completion of investigation charge-sheet having been submitted, the respondent faced trial for commission of offence under section 376, IPC. 3. The case of the defence is that of complete denial. It is further stated that both are co-villagers and friends, and there was a proposal for their marriage, when parents stood on the way of its materialisation. It is also stated that as there was prior enmity between the two families, this case has been foisted bearing grudge on account of that. 4. The prosecution in order to bring home the charge against the respondent has altogether examined fourteen witnesses, while proving the FIR, seizure lists, medical report, report of the chemical examiner etc. The defence has examined none. 5. The victim has been examined as P.W. 4 and P.W. 2 is her father, whereas P.W. 6 is her mother. 4. The prosecution in order to bring home the charge against the respondent has altogether examined fourteen witnesses, while proving the FIR, seizure lists, medical report, report of the chemical examiner etc. The defence has examined none. 5. The victim has been examined as P.W. 4 and P.W. 2 is her father, whereas P.W. 6 is her mother. The sister of P.W. 2 has come to the dock as P.W. 1. One of the relations of the victim has been examined as P.W.3. The witnesses to the seizure are P.Ws. 5, 8, 9, 11 and 12. The doctor has appeared as P.W. 10. P.Ws. 13 and 14 are the Investigating Officers. 6. The trial Court upon analysis of the evidence and upon their appreciation, has found the evidence of P.W. 4 to be unworthy of credence, and therefore has declined to fasten the guilt upon the respondent on the basis of her solitary testimony. It has been next found out that there remains no such corroboration on material particulars to the evidence of P.W. 4. The trial Court has found the age of the victim to be more than 16 years. In view of all these, the respondent has been acquitted of the charge. 7. Learned counsel for the State submits that taking into account the rural area from which the P.W. 4 hails and all other circumstances, there was no justification on the part of the trial Court to stamp the evidence of P.W. 4 as unworthy of credence. According to him, the delayed disclosure, non-existence of injuries on the person of the P.W. 4 as also the respondent, ought not to have been taken as adverse circumstance telling upon the evidence of P.W. 4. He further contends that P.W. 4 has desposed in a very natural manner, when also there was no reason on her part to falsely implicate the respondent. Therefore, he urges that it is a fit case for interference with the order of acquittal. Learned counsel for the respondent supports the finding of the trial Court. According to him, the same is based upon just and proper appreciation of the evidence as is required to be done in view of the facts and circumstances which have emanated from the evidence during trial. Learned counsel for the respondent supports the finding of the trial Court. According to him, the same is based upon just and proper appreciation of the evidence as is required to be done in view of the facts and circumstances which have emanated from the evidence during trial. He also submits that the trial court has taken note of all other attending factors and then has rightly recorded the order of acquittal, finding the prosecution to have not been able to bring home the charge against the respondent for commission of offence under Section 376, IPC beyond reasonable doubt by leading clear, cogent and acceptable evidence. 8. Keeping in view the rival submission, before going to take up the exercise in the matter to appreciate the evidence, it is felt to apposite to take note of the settled position of law with regard to power of this Court to interfere with the order of acquittal. It has been held in case of Basappa vs. State of Karnataka, (2014) 57 OCR 1044 : AIR 2014 SC (Cri) 901 that the High Court in an appeal under section 378, Cr. P.C. is entitled to reappraise the evidence and put the conclusions drawn by the trial Court to test but the same is permissible only if the judgment of the trial Court is perverse. Relying the case of Gamini Bala Koteswara Rao and Others vs. State of Andhra Pradesh, (2009) 10 SCC 639 : AIR 2010 SC 589 it has been held that the word perverse in terms as understood in law has been defined to mean against weight of evidence. In K. Prakashan vs. P.K. Survenderan, (2008) 1 SCC 258 , it has also been held that the Appellate Court should not reverse the acquittal merely because another view is possible on evidence. It has been clarified that if two views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref. - T. Subramaniam vs. State of Tamil Nadu, (2006) 1 SCC 401 : AIR 2006 SC 836 . Further, the interference by appellate Court against an order of acquittal is held to be justified only if the view taken by the trial Court is one which no reasonable person would in the given circumstances, take (Ref. - T. Subramaniam vs. State of Tamil Nadu, (2006) 1 SCC 401 : AIR 2006 SC 836 . Further, the interference by appellate Court against an order of acquittal is held to be justified only if the view taken by the trial Court is one which no reasonable person would in the given circumstances, take (Ref. - Bhima Singh vs. State of Haryana, (2002) 10 SCC 461 : AIR 2003 SC 693 . 9. At this stage, it is also felt the need to take note of the settled position of law with regard to acceptance of solitary testimony of the victim in case of rape. It has been held :- The principles of law is well settled in plethora of decisions of the Hon'ble Apex Court as well as this Court that the solitary testimony of the victim can form the foundation of a finding of guilt for commission of offence of sexual assault upon her and absence of corroboration does not stand on the way of acceptance of the same. However, corroboration may be considered essential when the evidence of the victim suffers from basic infirmity and the probability factors render it unworthy of credence. In some cases the Hon'ble Apex Court have held that the version of the victim cannot be accepted as gospel truth, the same is required to be scrutinized and from the version of the victim if it is found that what she stated is nothing but the unalloyed truth, then there is no impediment on the part of the Court to act upon such version of the victim without seeking for corroboration from any independent source. 10. In the back drop of the above, at the outset the evidence of P.W. 4, victim who is the star witness of the prosecution is required to be appreciated to judge the sustainability of the finding of the trial Court. It is worthwhile to mention here that the victim in the year 1995 has stated her age to be 19 years, which has also been the estimation of the trial Court. When her father has insisted during the evidence that P.W. 4 was aged about 15 years at the time of incident said to have taken place in the year 1994, during cross-examination P.W.4 has admitted her age to be 19 years at that time. When her father has insisted during the evidence that P.W. 4 was aged about 15 years at the time of incident said to have taken place in the year 1994, during cross-examination P.W.4 has admitted her age to be 19 years at that time. Admittedly no documentary evidence has been tendered with regard to the age of the victim. P.W. 4 has clearly stated that she is an illiterate. So no such evidence is also expected to be forthcoming such as school admission register etc. With the above oral evidence, now the medical experts evidence is required to be gone through. It has been the evidence of P.W.10, the doctor that the radiological test was conducted to ascertain to age of the victim. The report has been marked as Ext. 18 which reflects the age of the victim to be more than 16 years. In such state of affair in evidence, a cumulative view does not lead to record a disagreement with that of the trial Court as regards the finding that at the time of occurrence as alleged, the victim was more than 16 years. 11. Next coming to the evidence of P.W. 4, it is seen that she has stated to have gone to the cultivable land for clearing the forest growth which is situated 500 yards away from their house. It is next stated that the respondent came from behind; caught hold of her; made her lie on the ground and committed penetrative sexual assault. She has stated to have raised hullah, when none come to rescue her. It is her further evidence that the respondent then left the place and so also she came back to her house. Nowhere she has stated that the respondent gave any threat of any kind either before or during or after the incident in case of her disclosure about the incident to others. Her evidence with regard to commission of penetrative sexual assault by the respondent is as if it got completed within a fraction of second. She has admitted to have known the respondent from very childhood days and also their friendship. The way of narration of the incident on the face of it does not appear to be probable as a case of sexual intercourse against will and consent. She has admitted to have known the respondent from very childhood days and also their friendship. The way of narration of the incident on the face of it does not appear to be probable as a case of sexual intercourse against will and consent. When it is stated that she had disclosed the incident to her friend Kunda, interestingly, she has not been examined. It is further stated by P.W.4 that after eight days of the incident, she divulged it before Radha, her elder mother, who in turn informed her parents. P.W.2, the father of the P.W. 4 on the other hand admits to have stated before police that on the very day of occurrence she was informed by his wife about the incident that her daughter was raped and then she ascertained said fact from P.W. 4. These infirmities go to tell upon the trustworthiness of the evidence of P.W. 4 as regards the incident. The defence has for the purpose, proved the statement of P.W. 2 under Section 161, Cr. P.C., marked as Ext. A. So the explanation falls flat and the delay in lodging the FIR in the case does not stand to any reason. In view of aforesaid discussion, the view taken by the trial Court that the solitary testimony of P.W. 4 is not acceptable in the case, as regards the factum of commission of rape by the respondent upon P.W. 4 cannot be found fault with. Cumulatively viewing the evidence on record, rather the case projected by the defence appears to be probable that it was a case of consensual act, on the face of absence of any evidence as regards any resistance, existence of any injuries though stated to be there, delayed disclosure as well as delay in lodging the FIR. 12. In view of above, I do not find any justification to take view contrary to the one taken by the trial Court, on reappraisal of evidence. Therefore, this Court concur with the said finding of acquittal. In the result, the appeal stands dismissed. Appeal dismissed.