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2014 DIGILAW 673 (ORI)

State of Orissa v. Sudhansu Sekhar Jena @ Bulu

2014-10-16

D.DASH

body2014
JUDGMENT The State has called in question the order of acquittal passed by the learned Asst.Sessions Judge, Puri in S.T. Case No.52/328 of 1992 acquitting the respondent of the charge under Section 376 of I.P.C. 2.Prosecution case is that on 31.06.1992 at 5.00 P.M., the victim, P.W.11 who is the daughter of P.W.10 was proceeding towards Jogiabadi for attending call-of-nature. It is alleged that on her way, the respondent forcibly lifted her and taking her inside a half constructed house standing nearby, committed rape upon her. So the victim raised hullah when some persons reached near that house and rescued her. The incident being narrated by P.W.11 to her father P.W.10., FIR Ext.6, was lodged which necessitated the registration of the case at Brahmagiri Police Station and the investigation commenced. In course of investigation victim and other witnesses were examined; both victim and respondent were put to medical test and also seizure of wearing apparels of victim was made. Finally, charge sheet being submitted, the respondent faced the trial for offence under Section 376 of IPC. 3.The defence during the trial has taken the plea of complete denial and false foistation of this case because of enmity arising due to the party faction in the village, as the victim and her father were affiliated to the rival group. 4.The prosecution in order to bring home the charge against the respondent has in total examined 14 witnesses. As has already been stated, P.W.10 is the father of P.W.11 the victim and he is the informant who had lodged an FIR Ext.6. P.Ws.3, 4 and 6 have been examined as independent witnesses who are said to have reached near the place of occurrence hearing hullah. Post occurrence witnesses are P.Ws.5 and 7; the owner of that half constructed house where the occurrence is said to have taken place has come to the dock as P.W.8. P.Ws.12 and 13 are the doctors who have examined P.W.11 and the respondent respectively. When P.W.15 is the principal Investigating Officer; P.W.14 is the Investigating Officer who has formally placed the charge-sheet. The defence has examined two witnesses out of whom one is Ex-Sarpanch of the village and other one is an agnatic relation of P.W.11. P.Ws.12 and 13 are the doctors who have examined P.W.11 and the respondent respectively. When P.W.15 is the principal Investigating Officer; P.W.14 is the Investigating Officer who has formally placed the charge-sheet. The defence has examined two witnesses out of whom one is Ex-Sarpanch of the village and other one is an agnatic relation of P.W.11. 5.The trial Court upon elaborate discussion of the evidence and their critical analysis has held the prosecution to have not been able to establish the charge against the respondent beyond reasonable doubt. The testimony of P.W.11 has not inspired confidence in the mind of the trial Court as worthy credence for being accepted of fasten the guilt upon the respondent and the trial Court has also found basic infirmities therein when according to it, there is lack of corroboration from the independent sources to provide support to the evidence of P.W.11. In view of that, the order of acquittal has been recorded. 6.Learned counsel for the State submits that the appreciation of the evidence let in by the prosecution as has been done by the trial Court is not just and proper. According to him, the trial Court erred in law by not accepting the evidence of P.W.11 to hold the respondent guilty for commission of offence under Section 376 IPC. He further submits that ample corroborating evidence coming from the leaps of P.Ws.3, 4 and 6 have not been appreciated in their proper prospective. In this connection, with pain he has placed the deposition of P.W.11 as also of the other witnesses in submitting that the narration of the incident in implicating the respondent in commission of the offence as made by the P.W.11 is wholly acceptable and no such material surfaces in her evidence to discard her testimony, when also there is no material to suggest that she had any reason to falsely implicate the respondent at the cost her chastity, inviting serious social stigma and hatredness as prevalent in this society. Therefore, he urges that it is a fit case for interference with the order of acquittal in exercise of the power of this Court in seisin of the appeal against the same. 7.Learned counsel for the respondent supports the finding of the trial Court. According to him, the evidence of P.W.11 has been rightly held to be not free from basic infirmities. Placing the evidence of P.W.11, P.Ws. 7.Learned counsel for the respondent supports the finding of the trial Court. According to him, the evidence of P.W.11 has been rightly held to be not free from basic infirmities. Placing the evidence of P.W.11, P.Ws. 3, 4 and 6, he submits that on simultaneous reading of all these, a clear case is made out that the said act being consensual has been given a colour of rape, when P.W.1 did not have any other option and way out to protect her chastity and out of the instinct of self preservation. He submits here that the probability factors here are out of tune and, therefore, without corroboration being available from other sources to provide support to the evidence of P.W.11, the trial Court has rightly refused to accept her version as gospel truth. According to him, the evidence of other witnesses instead of providing support to the evidence of P.W.11, rather suggest that it was a case of consensual sexual act between the P.W.11 and the respondent. So he contends that the appeal bears no merit. 8.Keeping the above rival submission in mind now the evidence especially coming from the leaps of P.W.11 is required to be scanned to judge the defensibility of the finding of the trial Court. But before that, it is felt apposite to have a look at the power of this Court, in seisin of acquittal appeal to interfere with the order of acquittal. It has been held in case of Basappa v. State of Karnataka, (2014) 57 OCR 1044 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 v. State of Andhra Pradesh; (2009) 10 SCC 639, it has been held that the word “perverse” in terms as understood in law has bene defined to mean ‘against weight of evidence’. In ‘K. Prakashan v. 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. In ‘K. Prakashan v. 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 v. State of Tamil Nadu; (2006) 1 SCC 401 ). 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 v. State of Haryana; (2002) 10 SCC 461). 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. 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 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.The star witness for the prosecution is P.W.11, the victim. She has stated that when she was going to attend call of nature, the respondent came from behind, caught hold of her keeping his hands on her mouth and forcibly took her to the half constructed house of one Dhirendra Jena of village Kathua Aredi, made her lie on the ground on a cement gunny bag and forcibly removed her Chadi. It is further stated that the respondent then removed her two piece frock from the body when she was requesting to leave by saying “Chhada Chhada”. It is further stated that the respondent also squeezed her breasts and bite her cheeks and lastly committed rape upon her. 11.The victim in her statement has stated her age to be 16 years, whereas the prosecution has led medical evidence on this score which goes to show that the age of the victim at the time of examination was 18 years with margin of one year on either side. No other document on this score is forthcoming. The manner in which the initial incident is said to have taken place as deposed of by P.W.11, on its face value appears to be improbable that she would be forcibly taken to that half constructed house by the respondent by physically lifting her when she would maintain silence all through. It is does not appear to be acceptable that though there was ample of opportunity for P.W.11 to leave the place, she has not resorted to it when it shows that for the entire incident to take place, it must have taken considerable time. There is no physical resistance from her side. It is her evidence that after the P.W.11 made her lie on the ground, the respondent one after another removed her wearing apparels and lastly had sexual intercourse. She has also stated that, when the respondent after sexual intercourse was going away, she forcibly caught hold of him and then shouted for help, when others arrived. But her statement before the police was to the effect that the respondent fled away and then the villagers caught hold of him. It is also her evidence that the place was visible from the village road. It has also been stated that the respondent for sometime was teaching her during childhood days. In view of all these factors the solitary evidence of P.W.11 in my consideration view cannot be said to be so worthy of credence to base a finding of rape against the respondent. When corroboration is searched for, the evidence of the witnesses arriving at the spot are required to be gone through. P.W.3 has stated to have been called by one Panchanana Jena to this spot hearing the utterance of P.W.11 as “Chhad Chhad”. When corroboration is searched for, the evidence of the witnesses arriving at the spot are required to be gone through. P.W.3 has stated to have been called by one Panchanana Jena to this spot hearing the utterance of P.W.11 as “Chhad Chhad”. So, he went near the southern side window of that half constructed house and found the respondent standing near that victim who was by then half naked. He further states that on being asked the victim disclosed about her being lifted by the respondent and raped. The evidence of P.W.4 is to the effect that on being called by Panchanana, he had been to the place where Panchanana told him about the said incident of rape by P.W.11, the victim. It has been stated by P.W.6 that when he went near the window, he saw the victim in a half naked condition and the respondent standing near her. None have stated about any quarrel being going on between two or that the victim was accusing the respondent or was in a shocked condition. There is also no corroboration from the medical evidence in any manner. A cumulative view on all these evidence, do not overrule the possibility that a case of consensual sexual act has been given a colour of rape because of presence of the persons as stated above, on account of the instinct self-preservation. 12.For the above discussion of the evidence and reasons recorded, this Court find no justifiable reason to accord any disagreement with the finding rendered by the trial Court as regards the failure on the part of the prosecution to establish the charge under Section 376 IPC against the respondent. 13.Resultantly the appeal stands dismissed. Appeal dismissed.