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2014 DIGILAW 736 (ORI)

State of Orissa v. Budhia

2014-11-10

D.DASH

body2014
JUDGMENT : D. Dash, J. 1. The State in this appeal has called in question the order of acquittal dated 21.6.1995 passed by the Learned Assistant Sessions Judge, Talcher in S.T. No. 56(A) of 1994/17 Of 1994 acquitting the Respondent of the charge under Section 376, I.P.C. Facts necessary for disposal of the above appeal run as under: "On 19.02.1994, the victim girl (P.W.1) was sitting on the varanda of her house with one of her friends (P.W.2). It is around 2 P.M. she went to the backyard of her house to urinate where the Respondent arrived. It is stated that seeing the Respondent, the victim stood up when the Respondent dragged her saree from behind which resulted her fall on the ground & in the process her saree was torn. The victim when objected, the Respondent asked her to keep quiet & offered money. However, she raised cry. It is further alleged that the Respondent then closed her mouth, carried her to nearby jungle. At that point of time the victim asked her friend to call the father of the Respondent. The Respondent having taken the victim inside the jungle removed her saree & making her completely naked made her lie on the ground. Thereafter he removed his own pant & forcibly went for sexual intercourse with her. He also pressed her breasts causing injuries. It is also stated that because of forcible intercourse the victim sustained injuries on her right hand finger & her bangles were broken.. At that time when the father of the Respondent arrived at the spot, seeing him the Respondent fled away. The victim narrated the incident to the wife of a neighbour who had come after taking bath & then she narrated the incident to her mother & uncle on their return from NTPC. Lastly she lodged the F.I.R. which necessitated the registration of the case & commencement of investigation thereafter. On completion of investigation, charge-sheet having been placed, the Respondent finally faced the trial." 2. During trial, the Respondent has taken a plea of complete denial & false implication. From the side of the prosecution twenty witnesses have been examined when the defence has examined none. Out of the witnesses examined on behalf of the prosecution, the investigating officer has come at last as P.W.20. The doctors examining the victim & the accused are P.Ws.14, 15 & 19. From the side of the prosecution twenty witnesses have been examined when the defence has examined none. Out of the witnesses examined on behalf of the prosecution, the investigating officer has come at last as P.W.20. The doctors examining the victim & the accused are P.Ws.14, 15 & 19. As already stated the victim has been examined as P.W.1 & her friend is P.W.2. Parents of the victim are P.Ws.7 & 16. Besides the above, other witnesses to the seizure have also been examined. That apart more importantly, from the side of the prosecution, the F.I.R. (Ext. 2), medical report Exts.10, 11 & 12 have been admitted in evidence. 3. The Trial Court on evaluation of evidence first of all has come to the conclusion that the age of the victim was less than 16 years. However, on examination of the evidence of victim & also her friend in its wisdom has rendered a finding that their evidence are unsafe to be relied upon to fasten guilt upon the Appellant for the offence under Section376, I.P.C. Accordingly, the incident as projected by the prosecution having been held to have not been proved beyond reasonable doubt, the Respondent has been acquitted of the charge. 4. Learned Counsel for the Appellant-State submits that the evidence of the P.W.1 ought to have-been relied upon by the Trial Court in holding the Respondent guilty for commission of offence under Section 376, I.P.C. According to him, the evidence of P.W.1 does not suffer from any basic infirmity & she has deposed in a very natural manner wherein even no doubtful feature surfaces. Therefore, he urges that the said evidence of P.W.2 when tested with the medical evidence & the evidence of other witnesses go to establish the charge against the Appellant beyond reasonable doubt. He further submits that appreciation of evidence in the present case has been wholly perverse & the finding based on the said appreciation of evidence has caused serious miscarriage of justice which should not be allowed to stand. Therefore, he with vehemence urges that it is a fit case where the order of acquittal required to be set aside. 5. Learned Counsel for the Respondent, on the other hand, supports the finding of the Trial Court in further contending that the appreciation of evidence is just & proper. Therefore, he with vehemence urges that it is a fit case where the order of acquittal required to be set aside. 5. Learned Counsel for the Respondent, on the other hand, supports the finding of the Trial Court in further contending that the appreciation of evidence is just & proper. According to him, the Trial Court has rightly found it unsafe to rely upon the evidence of P.Ws.1 & 2 & thus finding rendered against the case of prosecution with regard to rape is not liable to be interfered with. Alternatively, it is submitted that at this distant point of time after lapse of nineteen & half year alteration of acquittal to conviction will not be in the interest of justice & the direction that the Respondent has to serve out the sentence for a long period will not meet the ends of justice as by now the Appellant must be having family needing his support & they are now likely to be driven to street being pushed to the abject of poverty ruining their life. 6. On such rival submission this Court is called upon to reappreciate the evidence in the light of the contentions as advanced. But before taking up that exercise it is felt apposite to take note of the settled position of law with regard to the scope of this appeal & power of this Court for interference 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 & 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 & 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 been 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). It has been held in case of Anjanappa v. State; ((2014) 57 OCR 51:-- "An order of acquittal it not to be set aside lightly. If the view taken by the Trial Court is a reasonably possible view, it is not to be disturbed. If two views are possible & if the view taken by the Trial Court is a reasonably possible one, then the Appellate Court should not disturb it just because it feels that another view of the matter is possible. However, an order of acquittal will have to be disturbed if it is perverse. The said principles have been followed in pronouncements in Balbir v. State of Punjab, AIR 1957 SC 216 ; Khedu Mohtam v. State of Bihar, (1970) 2 SCC 450 , Ram Narain Singh v. State of Punjab; (1975) 4 SCC 497 , Ganesh Bhabam Patel v. State of Maharastra; (1978) 4 SCC 371 , Awadhesh v. State of Madhya Pradesh; (1988) 2 SCC 557 ; Ram Kumar v. State of Haryana; 1995 Supp (1) SCC 248, Bhagwan Singh & others v. State of Madhya Pradesh; (2002) 4 SCC 85 , State of Goa v. Sanjay Thakram; (2007) 3 SCC 755 , Puram Singh v. State of Uttaranchal; (2008) 3 SCC 795 ; Mahendra Pratap v. State of Utter Pradesh; (2009) 11 SCC 337 & Shivasharanappa & ors v. State of Karnataka, (2013) 5 SCC 705 ." 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. 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 principle 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 & 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 & the probability factors render it unworthy of credence." 8. The finding of the Trial Court that victim was 14 years of age at the relevant time of the incident is not under challenge. Victim has stated her age to be 14 years at the time of examination & it has been the estimation of the Court as 15 years when her examination has taken place one year after the incident. P.W. 7 is the uncle of the victim who after the death of victim's father had married the mother of the victim; he has not stated anything about the age of the victim. Now the evidence of P.W. 15, doctor bears importance. He has conducted ossification test for determination of age of the victim. His opinion is to the effect that the victim was more than 14 years of age & less than 16 years. P.W. 9 has stated that in the school admission register, the date of birth of the victim has been indicated as 07.02.1980. However, the register not been proved nor school leaving certificate basing on which the entry was made therein. Mother of the victim has also not given evidence about the age of the victim. The Trial Court while examining the victim has administered oath upon her having certified that she understood the implication of oath as she gave rational answer to the questions put prior to examination. Taking the totality of evidence on the score into consideration thus the conclusion stands that the victim was within the age group of 14 to 16 years. 9. Taking the totality of evidence on the score into consideration thus the conclusion stands that the victim was within the age group of 14 to 16 years. 9. P.W. 1 the victim has stated that on the relevant date & time, her mother P.W. 16 & uncle P.W. 7 had gone to NTPC & after cooking food, when she was sitting on their verandah around 2.00 pm she went to their backyard to urinate. She has further stated that the Respondent came there & seeing him, she immediately got up & tried to run away. But being chased, the Respondent pulled her saree which resulted her fall. She has further stated that at that time she objected, when the Respondent asked her to maintain silence & allured her that he would be paying money for the same. She has further stated to have raised shout when the Respondent was dragging her by holding saree. It is also her evidence that the Appellant having closed her mouth carried her to a nearby jungle. She has stated to have called Malli, (P.W. 2) who was also sitting on the verandah of their house at that time & she also states that she asked P.W.2 to call the father of the Appellant. Then she has given the narration that the Respondent pulled down her clothes inside the jungle, made her completely naked, forced her to lie on the ground, pressed her chest & buttock & then removing his own pant, ravished her (P.W.1 -victim). Whereafter Appellant's father came & hearing his voice, he took to his heels. The victim further stated to have narrated the incident before a village lady who was coming from the river after taking bath & lastly to her mother & uncle when they returned. The Trial Court has taken serious view finding the victim stating during cross-examination that on the next day of the occurrence, the F.I.R. was lodged when it was actually lodged on the very day. Then he having found the statement of the victim recorded in course of investigation as the replica of the F.I.R. version, the same has again been taken as an adverse circumstance to doubt the veracity of the prosecution case. Then he having found the statement of the victim recorded in course of investigation as the replica of the F.I.R. version, the same has again been taken as an adverse circumstance to doubt the veracity of the prosecution case. On the whole, the Trial Court has found that the P.W. 1 has deposed being tutored & for the purpose, the Trial Court has again gone to give much stress upon that discrepancy with regard to the date of the lodging of the F.I.R. Also it is said that the evidence of P.W.1 expose the improbabilities. With such reasonings, this Court without hesitation offer total disagreement which can be seen from the discussions to follow. The victim's mental condition at the relevant time matters & especially in the case when she was fatherless & the incident is said to have been taken place when she was alone in a helpless condition together with the very fact that she hails from rural background with low level of intelligence & education. So, this discrepancy with regard to the date of lodging of the F.I.R., that too the difference of one day has absolutely no impact on the case & is of no significance. Assuming for a moment that there was delay when the FIR is not found to be a got up document, this delay is in no way fatal in a case of this nature. That apart the Investigating Officer's recording the statement of the victim in a manner as stated that it is replica of the FIR narration can not lead to doubt the prosecution case provided of course the evidence of the said witness is otherwise found to be reliable & worthy of credence. The FIR & recording of statement are almost simultaneous. So the victim having stated exactly what she narrated in FIR cannot also be taken to say that she had given no such statement earlier. Furthermore, it is not understood as to how the same is a ground to discard the evidence of victim in the absence of any basic infirmity being noticed. So the victim having stated exactly what she narrated in FIR cannot also be taken to say that she had given no such statement earlier. Furthermore, it is not understood as to how the same is a ground to discard the evidence of victim in the absence of any basic infirmity being noticed. The I.O. even reproducing the FIR version of the informant as also the statement in course of investigation cannot lead to say that what the informant states in evidence is unbelievable when there is no such material discrepancy & when the evidence is free from any such infirmity giving rise to grave doubt in mind. The Trial Court as it appears has not at all made any critical examination of the evidence rather than finding these flimsy reasons which are having no legal sanction. The next ground taken is that as per the evidence of P.W. 1, there was discharge of semen prior to penetration of the penis of the Appellant into her private part & that after ejaculation, the Respondent forcibly pushed his penis into her private part. Thus the Trial Court has found to be is improbable. So, he has found the evidence of P.W. 1 victim to be in worthy of credence so as to inspire confidence. From this suspicion has been raised with regard to the happening of the incident & simply for this reason, when the evidence of P.W.1 has remained practically un-shaken with regard to the incident, no credence has been attached to it. Let it be seen as to what P.W.1 has deposed. In her examination-in-chief she has stated about, rape by the Respondent. During cross examination, it is stated that the Respondent had put his penis into her vagina & then he had caught hold of her hands. She has stated that when Respondent sat over her & his penis touched the vagina there was ejaculation & seminal fluid felt over her thigh & after discharge the Respondent pushed his penis into vagina & had the sexual intercourse. The Trial Court has found this sexual intercourse after ejaculation as improbable. However, it has not been taken notice of that there is no evidence that the discharge was to the fullest extent that insertion or penetration was quite impossible, the penis being not in a position of erectment. The Trial Court has found this sexual intercourse after ejaculation as improbable. However, it has not been taken notice of that there is no evidence that the discharge was to the fullest extent that insertion or penetration was quite impossible, the penis being not in a position of erectment. It is this P.W.1 who has clearly stated that thereafter the Respondent pushed his penis into her vagina. This Court without least hesitation differs with the view of the Trial Court that it is improbable. The Trial Court with above evidence has unjustifiably gone to hold that the evidence that there being ejaculation, the sexual intercourse is improbable. It is not universal & it depends on the quantum of discharge so as to make the penis totally incapable of having remained even slightly erected for penetration. When P.W.1 has stated that Appellant pushed his penis, it presupposes that the penis was having the erection to have slight penetration. Moreover, penetration even to slight extent is enough. Considering her age it can well be visualized as to what it would have been prevailing in her mind at the relevant time. So her stating something as above cannot be taken amiss so as to discard her credible version. Thus this Court is in total disagreement with the view taken by the Trial Court. These two views weighing in the mind of the Trial Court in rendering the finding against the prosecution, in my considered view are perverse. 10. Next, the Trial Court has found the evidence of P.W. 1 & 2 who was then sitting on the verandah to be discrepant on material particular & that as the reason to doubt the veracity of the prosecution case. This view is also not sustainable. It has been clearly stated by P.W. 1 that she had gone to the backyard when P.W. 2 was sitting on the verandah. After sometime she raised hullah & asked P.W. 1 to call father of the Respondent & sometime later being called he came & on hearing his voice, the Respondent fled away. This Court feel at a loss to understand as to where arose the discrepancy & for what reason the evidence of P.W. 1 & 2 have been found to be quite discrepant on material particular so as to discard the version of P.W.1. The evidence of P.W.2 rather provides ample corroboration to the evidence of P.W.1. This Court feel at a loss to understand as to where arose the discrepancy & for what reason the evidence of P.W. 1 & 2 have been found to be quite discrepant on material particular so as to discard the version of P.W.1. The evidence of P.W.2 rather provides ample corroboration to the evidence of P.W.1. She has stated that while P.W. 1 was being taken, she was asked by P.W.1 to call Appellant's father. Furthermore, the evidence of P.W.3 is to the effect that on that day, she found P.W.1 crying sitting on their verandah & on being asked she narrated that she was ravished by the Respondent. The evidence of P.W. 7, uncle of the victim also run in the same vain that he found P.W.1 crying sitting on the verandah & when he asked she narrated the incident. Evidence of P.W.1 & narration as made by her before this P.W.7 are quite consistent. Mother-P.W.16 has also stated about the disclosure made by P.W.1, after she found P.W.1 crying. That apart there remains absolutely no reason whatsoever as to why the P.W.1 would be having even any tendency or bent of mind to falsely implicate this Respondent alleging penetrative sexual assault upon her that too risking her life throwing her dignity, chastity to winds & inviting social trauma which the victim at that age was quite capable of thinking & understanding. 11. Besides the above, it is seen that the medical evidence provides further corroboration to the evidence of P.W.1. Three injuries have been found near the breast of the victim by P.W. 15, the doctor who has examined her which clearly shows that there was resistance to the said act of Respondent which has also been stated by P.W.1 & thus it provides corroboration. The prosecution has also proved the seizure of some broken bangles, one hair clip from the spot itself which is inside the jungle & the relevant seizure list has been proved as Ext. 4 which lends assurance to the evidence of P.W.1. Taking into consideration the overall circumstances.& on reappreciation of evidence, this Court find that the charge under Section 376 IPC against the Respondent is well established beyond reasonable doubt though the solitary testimony of P.W.1 which in addition has received corroboration from other evidence including medical evidence. 4 which lends assurance to the evidence of P.W.1. Taking into consideration the overall circumstances.& on reappreciation of evidence, this Court find that the charge under Section 376 IPC against the Respondent is well established beyond reasonable doubt though the solitary testimony of P.W.1 which in addition has received corroboration from other evidence including medical evidence. This Court find that the acquittal in the present case is based on a finding which is the outcome of perverse appreciation of evidence which no reasonable person in the given circumstances would arrive at. This Court find the said order of acquittal to have been recorded by discarding the clear, cogent, reliable evidence emanating from the lips of trustworthy witnesses, safe to be acted upon on some unwarranted & flimsy reasons also without keeping the ground reality in mind & being alive to it. It is also noticed that the Trial Court has obstinately blundered & has reached at such a distorted conclusion as to produce a positive miscarriage of justice. 12. Now stands for consideration, the submission of the Learned Counsel for the Respondent that the Respondent having enjoyed liberty for all these years since 1995 onwards & after more than 19 years it would serve no useful purpose to put him behind the bar for along time when he must be having his family & dependents who would again be driven to the street & their life would be ruined & in that event rather it would be travesty of justice. This Court having already found the acquittal to be wholly unmerited one, especially taking into consideration, the nature & gravity of the crime which is not only against an individual but a crime which destroys the basic equilibrium of the social atmosphere & viewing the plight & shock suffered by the victim as well as the torment upon her having the potentiality to corrode the poise & equanimity of the civilized society; the lapse of time do not stand on the way & weigh in any manner in mind of this Court to convert the acquittal to one of conviction when the societal cry to curb these offences is at its peak. In my considered view, when the order needs reversal to prevent positive miscarriage of justice, for the lapse of time in between, the said reversal cannot lead to travesty of justice & rather would be to meet the ends of justice & further its cause. Furthermore, the ground urged in essence to show leniency on the base of the mitigating factors put forth to invite mercy gets repelled as the factual matrix cannot allow the rain-bow of mercy to magistrate. Here also the crime test stands on a higher pedestal than that of the criminal test. Therefore, no adequate or special reason is seen for consideration in the matter of imposition of lesser sentence than the prescribed minimum. 13. For the aforesaid discussion & finding, the order of acquittal is liable to be set aside. The Respondent is convicted for commission of offence under Section 376 IPC & is sentenced to undergo rigorous imprisonment for a period of seven years. Resultantly, the appeal is allowed as above. The Respondent be taken to custody forthwith to serve out the remaining part of the sentence.