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2015 DIGILAW 101 (ORI)

State of Orissa v. Kanhu Charan Meher

2015-02-13

D.DASH

body2015
JUDGMENT The State in this appeal has called in question the order of acquittal dated 01.12.1992 passed by the learned Assistant Sessions Judge, Dharamgarh in S.C. Case No.13/7 of 1992 acquitting the respondents of the charge under Section 376, I.P.C. 2.Facts necessary for disposal of the above appeal run as under : On 05.09.1991 during noon hours, the victim when was attending call of nature, the respondent came and caught hold of the victim girl and forcibly pulled out her wearing saree and outraged her modesty. The victim having raised shout, Gajanan and Benudhar came to her when the respondent is said to have left the place. The victim thereafter came to her house narrated the incident to her mother as her father was absent. The mother in turn reported to father on his arrival on the next day when a village meeting was convened. It is stated that the respondent confessed his guilt in the said meeting and a decision was taken that the respondent and the victim would marry. As thereafter the father of the respondent refused, the matter was reported at the police station. 3. On receipt of information from the father of the victim. necessary case was registered at the police station and investigation commenced. In course of investigation, the victim, her parents and other witnesses were examined. The victim was also medically examined. The respondent’s medical test has also been done. On completion of investigation, charge-sheet being submitted, . the respondent faced the trial for offence under Section 376, I.P.C. 4. During trial, sixteen witnesses have been examined from the side of the prosecution. Out of them the important witnesses are the victim (P.W.11), her father (P.W.1), mother (P.W.3), Benudhar, the independent witness has been examined as P.W.2. The Doctors and the Investigating Officer along with other witnesses to the seizure have also come to the dock. The defence has examined none. 4. The trial Court on analysis of evidence on record and upon their evaluation has arrived at a conclusion that the prosecution has failed to establish the charge under Section 376, I.P.C. against the respondent. The Doctors and the Investigating Officer along with other witnesses to the seizure have also come to the dock. The defence has examined none. 4. The trial Court on analysis of evidence on record and upon their evaluation has arrived at a conclusion that the prosecution has failed to establish the charge under Section 376, I.P.C. against the respondent. The evidence with regard to that has not only been found to be deficient so as to warrant a conviction but also coming to the incident of commission of offence of outrage of modesty of P.W. 11, the Court below has found the evidence of P.W.11 and P.W.2 to be contradictory on material aspect and thus not acceptable. The age of the victim girl has been accepted by the trial Court to be more than 17 years which is also the report of the Doctor (Ext.7) given after conducting ossification test. 5.Learned counsel for the State submits that the appreciation of evidence as has been done by the trial Court in the case is wholly on perverse. According to him, the evidence of P.W.1 ought to have been held to be trustworthy and reliable and no corroboration ought to have been insisted upon to act upon it. He further submits that the Court below even when did not find the commission of offence of rape, still it ought to have held that the offence under Section 354, I.P.C. is made out. According to him, the. evidence of the prosecution witnesses on that score is quite consistent and there remains no variance on the material aspect of the case. Therefore, he urges that it is fit case for interference with the order of acquittal. 6. Learned counsel for the respondent submits all in favour of the finding rendered by the trial Court. According to him, the trial Court has rightly held the testimony of the P.W.11 to be unreliable. Placing the deposition of P.W.11 at paragraph-14, he points out that the same completely demolishes the case of the prosecution so far as the rape is concerned. Relying on that paragraph of deposition of P.W.11 as also the next para, he submits that even the presence of this respondent is highly doubtful. Placing the deposition of P.W.11 at paragraph-14, he points out that the same completely demolishes the case of the prosecution so far as the rape is concerned. Relying on that paragraph of deposition of P.W.11 as also the next para, he submits that even the presence of this respondent is highly doubtful. According to him, the case has been foisted against the respondent when he denied finally to go for marriage with the victim which was being insisted upon by the parents and other villagers. Therefore, he urges that the appeal bears no merit. 7. Before going to address the rival submission in order to judge the defensibility of the order of acquittal, 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 Vrs. 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 Vrs. 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 Vrs. 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 Vrs. 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 Vrs. State of Haryana; (2002) 10 SCC 461). 8. 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 Vrs. State of Haryana; (2002) 10 SCC 461). 8. Now, therefore, keeping the aforesaid rival contentions in mind in view of the evidence let in by the prosecution, this Court is called upon to examine the evidence in the light of the settled principles of law as stated above. In such type of cases law is fairly well settled that the testimony of the victim of such kind of offences if so found to be free from any basic infirmity and trustworthy and reliable, an order of conviction can solely based upon it without insisting on any corroboration. Where, however, such evidence of the victim is having the basic infirmity, the Court should search for corroboration on material particulars in order to render a finding of guilt upon the accused facing the trial; So, now let us go to the evidence of P.W.11. She has stated that while she was attending the call of nature by sitting, the respondent came from behind and caught hold of her and pulled her saree when Gajanan and Rukmini appeared. It is further stated that Rukmini thereafter took her to the nearby place where water had accumulated and both took bath. So even accepting the evidence of P.W.11 as laid without the same being put to the test of reliability the case of rape is not made out. In view of that, this Court finds the view taken by the trial Court in that regard to be justified. 9. Now coming to the other part as regards the offence under Section 354, I.P.C. when we again go to the evidence of P.W.11, in para-14 of her deposition, it is seen that she has stated that someone came from behind and caught hold of her. In the subsequent paragraph, she states that the next sequence that she escaped and went near Rukmini and. since that time onward she has not looked back. The witness has not identified the accused during examination in Court stating to have not known the accused in dock though she has gone to state the name of the respondent. In the subsequent paragraph, she states that the next sequence that she escaped and went near Rukmini and. since that time onward she has not looked back. The witness has not identified the accused during examination in Court stating to have not known the accused in dock though she has gone to state the name of the respondent. Rukmini though examined has not supported the case of the prosecution. Gajanan has not been examined. The other witness Benudhar has stated rather in a much more exaggerated manner that Rukmini abused the respondent and that the respondent was found to be dragging the victim. Most interestingly, his evidence is to the effect that both were found to be naked, which is not stated by the victim herself. This though cannot be taken as a ground to discard the evidence of P.W.11 in its entirety, certainly it can be considered to see the zeal of the prosecution to hatch the respondent in a case of this nature and that further puts the Court on guard to scrutinize the evidence with much more care and caution. The trial Court having gone for detail analysis of evidence keeping the above in mind when has ultimately found the evidence of P.W.11 to be not trustworthy, the view taken can be said to be the outcome of the just and proper appreciation of evidence on record. For the aforesaid, the order of acquittal finds no interference. 10. Resultantly, the appeal stands dismissed. Appeal dismissed.