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2014 DIGILAW 755 (ORI)

State of Orissa v. Manoranjan Mondal

2014-11-12

D.DASH

body2014
JUDGMENT : The State in this appeal has called in question the order of acquittal dated 07.06.1996 passed by the learned Assistant Sessions Judge, Malkangiri in S.C. No. 40 of 1995 acquitting the respondent of the charge under Section 376/511 IPC. 2. Prosecution case is that on 13.06.1996 around 4.00 pm, victim was returning from jungle after collecting "TOLA" and her younger sister was also coming with her. When they were coming on the road in the jungle, the respondent appeared. It is alleged that he forcibly took her further inside dragging her and then made her lie on the ground squeezed her breasts and went for penetrative assault. It is next stated that as one Koya old lady arrived there, the respondent fled away. The victim returned home and divulged the incident before her father and mother on being asked when she remained in sobbing condition. F.I.R. being lodged at the police station, IIC, M.V. 79 P.S., the case was registered and thus the investigation commenced. In course of investigation, statement of victim and other witnesses were recorded; both victim and respondent were medically examined on police requisition. On completion of investigation, charge-sheet having been submitted for offence under Section 376/511 of IPC, the respondent finally faced the trial. 3. Plea of defence is that of denial and false implication at the behest of the mother of the victim due to prior land dispute between them. 4. Prosecution has examined in total 12 witnesses. Victim is P.W.9, when her sister is P.W.10. Mother of the victim has been examined as P.W.11, when P.W.1, 2, 5 and 6 are other witnesses. The doctor examining the victim and the respondent has been cited as P.W.3. P.W.4 is a witness who had taken the victim for her ossification test, P.W.8 has come to say to have received the vaginal swab from the doctor. The Investigating Officer have been examined as P.W.7 and 12. No evidence has been tendered by the defence. 5. The trial Court upon evaluation of evidence and on their examination has found the prosecution to have not been able to establish the charge against the respondent and in other words the trial Court has not accepted the solitary testimony of P.W.9 with regard to the charge against the respondent and in the absence of any corroboration, the prosecution case has been held to have not been proved. It has also been stated on discussion of evidence that the prosecution case as projected through the evidence of the victim (P.W.9) is not acceptable, in view of the circumstances emanating from the evidence. Therefore, the trial Court has recorded acquittal of the respondent. 5. Learned counsel for the appellant-State submits that the trial Court has not at all appreciated the evidence on record in their proper prospective and its finding that solitary testimony of P.W.9 is not trustworthy and reliable is wholly unjust and not in conformity with the settled law. He also points out as to how the reasons assigned by the Trial Court are flimsy having no base. So, he urges that the order of acquittal is based on perverse appreciation of evidence, ignoring the materials available materials available on record and side tracking those. Therefore, he contends that the order of acquittal to be interfered with. 6. Learned counsel for the respondent, on the other hand, supports the finding of the trial Court. It is his submission that when the entire evidence of P.W.9 is read in one breadth, the same does not inspire confidence in the mind and the witness cannot be said to be a trustworthy one. He submits that acceptance of evidence of P.W.9 in the present case would not be in conformity with the settled principle. He further submits that in the absence of any corroboration either from medical evidence or from other witnesses and in the absence of any circumstance to provide support to the testimony of P.W.9, the evidence of P.W.9 cannot be accepted as gospel truth. According to him, it is not free from basic infirmity and the probabilities factor is out of tune. Therefore, he urges for dismissal of the appeal. 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 the 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. It has been held in the 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 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. 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). 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. 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 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 unworthy of credence. 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 foregoing para in judging the defensibility of the finding of the Trial Court. 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 foregoing para in judging the defensibility of the finding of the Trial Court. The evidence of P.W.9 stands for examination first. When she having stated that at about 4.00 pm, she returned from the jungle to home through jungle road, has suddenly jumped to say that the respondent made her naked, and removed her pant and shirt which creates a doubt as regards the place where the respondent met her. Next it is stated that when they were returning, suddenly the respondent caught hold of her and lifted her to the jungle, removed her pant and shirt and making her lie on the ground went for penetrative assault. Thus, when she has stated to have already returned home and without stating as to when and why she went back to the jungle again, her evidence is that she was lifted into the jungle and raped gets pushed into the shadow of doubt. When we go to the cross-examination portion, it is seen that as against her statement during examination-in-chief, that she had gone to the jungle with her parents, sister and brother, she says that parents were at the distance of one km away as they had been to bring rice after collecting "Mahua Flowers". Next is the statement which cannot be lost sight of that one Koya old lady was going through the spot and seeing her respondent fled away. Next she further says to have sustained swelling injuries on her neck, back and face as also on her private part. Now at this stage if we turn to the evidence of doctor P.W.3, the evidence of victim is in no way finding support from that. He has stated that there was no sign symptom or reason of any intercourse. There was no internal or external injury on the vagina, no tear was found in hymen. Thus, the positive version of P.W.9 is belied by the evidence of P.W.3 the doctor. It is true that due to non-existence of injury on the person of the victim, her testimony with regard to the incident of rape cannot be discarded but that again has no universal application. Thus, the positive version of P.W.9 is belied by the evidence of P.W.3 the doctor. It is true that due to non-existence of injury on the person of the victim, her testimony with regard to the incident of rape cannot be discarded but that again has no universal application. Here in the present case, the victim asserts to have sustained injuries on specific part' of body including the private part. The victim's age has been found by doctor to be 15 to 17 years and there is no other specific evidence with regard to age. So, when she is assertive about existence of the injuries on account of the incident and when the same is not found to be the true state of affair her evidence, the same is to be adversely viewed to have the negative impact on her evidence as regards the incident. Moreover, it is seen that the identity of that old lady has not been ascertained and she has not thus been brought to the dock. In the circumstances, her evidence would have thrown much light about the incident and especially on the veracity of the prosecution case. So, the trial Court viewing it adversely on the face of the evidence of P.W.12 that there was previous enmity on account of land dispute between the respondent and the family members of the victim who are neighbours cannot be said to be unreasonable. In such state of affair in the evidence it cannot be said that the trial Court's view is a perverse one and or that it is such that no reasonable person would in the given circumstances take. Therefore, this Court finds no such justifiable reason to disturb the said finding and interfere with the order of acquittal. 11. Resultantly, the appeal stands dismissed.