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2014 DIGILAW 671 (ORI)

State of Orissa v. Tahasil Harijan

2014-10-16

DEBABRATA DASH

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JUDGMENT DEBABRATA DASH, J. 1. The State in this appeal has called in question the order of acquittal dated 11-9-1995 passed by the learned assistant Sessions Judge-cum-Chief Judicial Magistrate, Bhawanipatna in S.C. No. 27/12 of 1995 acquitting the respondent of the charge under sections 376, IPC. 2. Facts necessary for disposal of the above appeal run as under : On 18-12-1994, the victim P.W. 2 had been to the land to watch the crop grown over there. It is around 4. p.m., the respondent came from behind, caught hold of her and raped her near the rivulet (Nala). It is stated that the victim raised hulla and cried when the witness a person named, Ramesh came to the spot and the respondent then fled away. The incident was narrated by the victim to her mother and brother. The father of the victim came on the next day and getting the information reported the matter at the police station by lodging the F.I.R.-Ext.1. In view of that the criminal law was set into motion and investigation was taken up. In course of the same, the victim and other witnesses were examined; both the victim and the respondent were taken for medical test and the wearing apparels of the victim were also seized. Thereafter, charge-sheet was finally submitted against the respondent to face the trial for the above noted offences. 3. During trial, the respondent has taken a plea of complete denial and false implication. From the side of the prosecution eight witnesses have been examined besides proving most importantly, the F.I.R.-Ext. 1, seizure list, medical reports. The defence has examined none. 4. The trial Court on analysis of evidence has discarded the theory of rape as projected by the P.W. 2 giving rise to the case against the respondent. The trial Court has not accepted the sole testimony of the P.W. 2 to base the finding of guilt for the charge against the respondent when also no such corroboration of material particulars has also been found from other evidence. Therefore, finally acquittal has been recorded. 5. Learned counsel for the appellant-State submits that the trial Court did commit an error in appreciating the evidence of P. W. 2, the victim. According to him, the evidence of the victim ought to have been held to be free from any basic infirmity and as worthy of credence so as to base a conviction. 5. Learned counsel for the appellant-State submits that the trial Court did commit an error in appreciating the evidence of P. W. 2, the victim. According to him, the evidence of the victim ought to have been held to be free from any basic infirmity and as worthy of credence so as to base a conviction. He further submits that corroboration in the case also comes from the evidence of the parents of P.W. 2 and other witnesses. So, there was no reason for the trial Court even upon consideration of the evidence of P.W. 2 as well as other evidence providing corroboration to the same to record a conviction. He has also placed the deposition of P.W. 2 in great detail in submitting that the same has been discarded without any legal justification. Therefore, he urges that it is a fit case for interference with the order of acquittal. 6. Learned counsel for the respondent while supporting the finding rendered by the trial Court urges that the evidence of P.W. 2 clearly shows that it is a case of consensual sexual act between the victim and the respondent but because of the arrival of that Ramesh the victim had no other way out but to give it a colour of sexual intercourse against her will and without her consent, which is natural as an instinct of self preservation. He further submits that in this case there is no such corroboration to the evidence of P.W. 2. Drawing the attention of the Court to the medical evidence, he further urges that the same also belies the theory of rape as projected by P.W. 2. Therefore, according to him, the appeal bears no merit. 7. Before going to re-appreciate the evidence in the light of the contentions as advanced, it is felt apposite to take note of the settled position of law with regard to the scope and power of this Court for interference 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. 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. Bhima Singh vs. State of Haryana, (2002) 10 SCC 461 : AIR 2003 SC 693 . 8. 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. 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 of commission of offence of sexual assault upon her and absence of corroboration does not stand on the way of acceptance of a 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. 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. 9. In view of the aforesaid, now let me take up the exercise in appreciating the evidence in the light of the submission advanced as above keeping in mind the settled position stated in the forgoing paras in judging the defensibility of the finding of the trial Court. The star witness of the prosecution in this case is P.W. 2. She has stated her age to be 17 years at the time of recording of her evidence in the year 1995. That being taken into account as on the date of the incident, it is coming to be nearly 16 years. However, during cross-examination, she has stated that she could know about her age from the horoscope, but that has not been proved in this case. The witness is unable to state even her year of birth. P.W. 3 who is the father of the victim has not stated anything about the age of his daughter. As regards that nothing finds mention in the F.I.R.-Ext. 1. No other evidence is forthcoming on that score sans the medical evidence. The Doctor who conducted the Radiological test has come to the dock as P.W. 6, and he has opined the age of the victim at the time of examination to be 18 years. In view of all the above, the trial Court having found the age of the victim to be 18 years on the basis of evidence on record, this Court do not find any reason to take any other view. 10. Now, coming to the incident, first of all the evidence of P.W. 2 is required to be considered. In view of all the above, the trial Court having found the age of the victim to be 18 years on the basis of evidence on record, this Court do not find any reason to take any other view. 10. Now, coming to the incident, first of all the evidence of P.W. 2 is required to be considered. It is her evidence that when she was watching the crop in the field, the respondent came from behind, closed her mouth with handkerchief and then raped her near the rivulet. She has further stated that when Ramesh of Jampadar village came there, she started crying. She is not stating anything in the direction of giving any resistance in any manner, either physically or otherwise. The incident as stated could not have been taken place within a fraction of a second and there was ample opportunity for the victim to run away which has not been resorted to. When she has stated to have no experience of such kind of incident, it is the evidence of the Doctor-P.W.5 which belies her claim. Interestingly, this Ramesh has not been examined. So what it appears from the evidence of P.W. 2 that on arrival of Ramesh, who was known to her before, she started crying and at that time the respondent was also present there and only thereafter Ramesh sent P.W. 2 to her house and then the respondent left the place. Although it has been deposed to by the P.W. 3, the father of the victim that Ramesh had taken P.W. 2 to the house and left her, he is silent as to what Ramesh then disclosed which would have thrown much light on the actual incident. In such state of affair in the evidence, Ramesh is certainly a vital witnesses and his non-examination under the circumstance calls for drawal of adverse interference against the case of the prosecution. The solitary testimony of P.W. 2 in the present case is not found to be so worthy of credence in view of the basic infirmities, which have been pointed out and when the probability factors are found to be out of tune; there remains no such corroboration to it either from medical or other evidence. For the aforesaid discussion and reasons, this Court find that the order of acquittal is not liable to be interfered with. 11. Resultantly, the appeal stands dismissed. Appeal dismissed.