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2014 DIGILAW 731 (ORI)

State of Orissa v. Nilakantha Behera

2014-11-10

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 5-7-1996 passed by the learned Assistant Sessions Judge, Chatrapur in S.C. No. 56 of 1992/216/ 1992 G.D.C. acquitting the respondent of the charge under Section 376, IPC. 2. Facts necessary for disposal of the above appeal run as under : On 1-2-1992 around 10 a.m. the victim (P.W. 1) was basking sitting on the thrashing floor. The respondent who happens to be her cousin came there, embraced and kissed her and then coaxed and cajoled her to become his mistress. Since the respondent was then a married man having a child, the victim did not approve. At that time the elder sister of the victim (P.W. 4) reached. So the respondent went away. Next night, the respondent knocked the door of the house of the victim and called her mother when the victim and her sisters were sleeping and as they did not open the door, the respondent went away. On the next day around 10 a.m. the mother and elder sister of the victim left their house for selling dry fishes, the other two sisters of the victim went for grazing cattle and the younder brother of the victim went to play. Around 2 p.m. the respondent made a entry to their house, bolted the front and back door of the house, embraced the victim and lifted to her to bed room where she was undressed and after he undressed himself, committed rape upon the victim by gagging and thereafter left the place. On her mothers return, the victim narrated the incident. So the mother reported the matter to the uncle of the victim. On that day around 8 p.m., the respondent came when confrontation took place. During that period, he proposed to keep the victim as his wife and take her away to a far off place. The respondent then slept for the night in the house with the victim as husband and wife when the mother and sisters of the victim went for sleep to other place. It is stated that during the night they slept as husband and wife and it was so permitted because of the assurance given that the victim would be kept by the respondent as his wife being taken to a far off place. It is stated that during the night they slept as husband and wife and it was so permitted because of the assurance given that the victim would be kept by the respondent as his wife being taken to a far off place. The victim thereafter was not taken to the house of the respondent and when he went there she was driven away. A village meeting was convened for the purpose where the respondent demanded cash of Rs. 50,000/- to keep the victim as he wife. Since the mother of the victim was not in a position to provide the same, the respondent did not accept the victim as his wife. So the FIR was lodged and the investigation commenced. In course of investigation, the victim her mother and elder sister were examined. The victim was also put to medical test. On completion of investigation, charge-sheet having been placed the respondent faced the trial. 3. The trial Court on evaluation of evidence of the victim (P.W. 1), her mother (P.W. 2), elder sister (P.W. 4), the younger brother (P.W. 6) as well as that of a co-villager came to the conclusion that it was a case of consensual sexual act. For the purpose, the trial Court has highlighted the circumstances emerging out of the evidence of the victim and also the other witnesses. Thus, finally it has been held that the prosecution has failed to prove its case against the respondent by leading clear, cogent and acceptable evidence that it is the respondent who had raped the victim. So the order of acquittal having been recorded, the present appeal has been filed. 4. Learned counsel for the State submits that the trial Court did commit error in law by not accepting the version of P.W. 1 which, according to him, is worthy of credence finding corroboration from the evidence of other witnesses. He further submits that in the present case the probability factors are not out of tune so as to infer for a moment that it was with the consent. Thus, the appreciation of evidence done by the trial Court is attacked by the learned counsel for the State as improper and as such its outcome is submitted to be unsustainable requiring interference by this Court. 5. Learned counsel for the respondent, on the other hand, supports the finding rendered by the trial Court. Thus, the appreciation of evidence done by the trial Court is attacked by the learned counsel for the State as improper and as such its outcome is submitted to be unsustainable requiring interference by this Court. 5. Learned counsel for the respondent, on the other hand, supports the finding rendered by the trial Court. According to him, the appreciation of evidence of the victim has been correctly made by the trial Court and so also the evidence of other witnesses. Therefore, according to him, the appeal bears no merit. 6. On such rival submission, this Court is now called upon to examine the evidence of the witnesses examined on behalf of the prosecution so as to find out the defensibility of the impugned order of acquittal. But before going to take up the said exercise 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. Relying the case of Gamini Bala Koteswara Rao vs. State of Andhra Pradesh, (2009) 10 SCC 636 : AIR 2010 SC 584 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 . 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 . 7. 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. 8. The victim in this case is P.W. 1. She being the start witness for the prosecution, it is felt ideal to approach her evidence first. Her narration of the prior incident shows her close acquaintance with the respondent. She has stated during her examination-in-chief that when nobody was there in the house around 2 p.m., the respondent came and entered into the house through the front door and then bolted the door from inside so also the backside door was bolted by him. Her narration of the prior incident shows her close acquaintance with the respondent. She has stated during her examination-in-chief that when nobody was there in the house around 2 p.m., the respondent came and entered into the house through the front door and then bolted the door from inside so also the backside door was bolted by him. It is next stated that she was dragged by the respondent to the living-cum-dining room, undressed her, made her to sleep on the floor and thereafter the respondent undressing himself, pressed her breast and went for sexual cohabitation. The victim has stated to have made no resistance. It is further stated that the respondent then left the house through the backside door. The evidence of P.W. 2 is also to the effect that she did not have her consent for the same. It is next stated that the respondent thereafter had also gone for sexual cohabitation with the victim again in that room when they slept together as husband and wife and that was with an assurance that she would be taken by the respondent. The way of narration of events leading to the sexual intercourse are very important. It is stated that the respondent unbuttoned her blouse using both the hands and had undressed himself. At that time though P.W. 1 had the opportunity to raise the hulla, it was not done. It is further stated that before undressing P.W. 1 the respondent had pampered saying that she would take her when that was resented in view of the marital status of the respondent her saree was pulled and blouse was unbuttoned. It is further stated that when the respondent was unbuttoning the blouse she was lying on the floor facing upward. In spite of all the opportunities, the victim has not given any physical resistance even after the incident was over. It is not stated by the victim that she chased and immediately raised cry or should. She further admits that they have the cohabitation twice even after the incident of rape as stated and that was with the knowledge of her mother and sister and during their sleep in the room as husband and wife. It is not stated by the victim that she chased and immediately raised cry or should. She further admits that they have the cohabitation twice even after the incident of rape as stated and that was with the knowledge of her mother and sister and during their sleep in the room as husband and wife. She has again stated they had four times sexual cohabitation during that night and it was with her willingness and she had consented and co-operated fully when her mother had also given permission for the purpose. A plain reading of the statement of the victim (P.W.1) being seen with all the circumstances does not inspire confidence in the mind to say that her evidence is worthy of credence so as to hold that the respondent had the sexual intercourse against her will and without her consent so as to be fastened with the guilt for commission of offence punishable under Section 376, IPC. This Court on re-appreciation of evidence do not find any reason to disagree with the trial Courts finding in that regard which appears to be reasonable based on proper appreciation of evidence. 9. For the aforesaid discussion and reasons, this Court find that the order of acquittal is not liable to be interfered with. 10. Resultantly, the appeal stands dismissed. Appeal dismissed.