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2015 DIGILAW 16 (ORI)

State of Orissa v. Bapuji Naik @ Bapuni @ Fatu

2015-01-09

D.DASH

body2015
JUDGMENT The State in this appeal has called in question the order of acquittal passed by the learned Sessions Judge, Kandhamal-Boudh-Phulbani in S.T. No.28 of 1995 acquitting the respondent of the charge under Section 376/511, I.P.C. read with Section 3(2)(v) of S.C. and S.T. (P.A.) Act, 1989. 2.The case of the prosecution in short is that the respondent attempted to commit rape upon the victim (P.W.1) near “Ladamaha” field of village Tiangis (Mandasaru). The age of the victim girl is stated to be 12 years then. It is further stated that on 18.11.1994 around 3 P.M. the victim was grazing cattle over the land locally called “LADAMAHA”. At that time, in that lonely place, the respondent with an intention to rape the victim came, embressed and squeezed her breast whereafter he made her lie on the ground. Then he tore her inner garments. It is further stated that by application of force the respondent when was about to penetrate his penis into the vagina of the victim in order to commit forcible sexual intercourse, the victim being frightened started urinating with fecal matters coming out of her annus. At this point of time, one Upajini saw and shouted. So, the respondent left her. The victim then went to her house and reported the incident to her mother. Lastly a meeting was convened on 19.11.1994. Thereafter the written F.I.R. was lodged at the police station. Police having investigated the case submitted charge-sheet. This is how the respondent came to be tried. 3.The trial Court on examination and evaluation of evidence has come to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt. The evidence of P.W.1 (victim) has been discarded on the above score that victim P.W.1 has not supported the F.I.R. version to the effect that P.W.2 noticed the respondent to be lying over her and then he raised alarm, which led the respondent to lift P.W.1. Next it has heavily weighed in the mind of the trial Court to disbelieve the version of the P.W.1 that after she urinated and eased in the place of occurrence without cleaning herself, she went to her house and met her mother. It has further been stated that version of P.W.2 and 3 are contrary with the evidence of P.W.1. Broadly on these grounds; the trial Court has discarded the case of the prosecution. It has further been stated that version of P.W.2 and 3 are contrary with the evidence of P.W.1. Broadly on these grounds; the trial Court has discarded the case of the prosecution. It may be stated here that informant in the case is the victim herself and she is aged about 12 years. She has come to the dock as P.W.1. P.W.2 is a relation of P.W.1 who having seen the respondent by the side of P.W.1 and also having seen P.W.1 crying shouted. Mother of P.W.1 has been examined as P.W.3. P.W.4 is a witness of that meeting. The doctors examining P.W.1 are P.W.8 and 9. The investigating officer is P.W.10. The respondent has examined himself in defence. 4.Learned counsel for the State submits that the appreciation of evidence in the case by the trial Court is wholly perverse and there remains no reason to discard the truthful version P.W.1. According to him, there is no need for seeking corroboration from any independent sources as the evidence of P.W.1 is wholly trust-worth, when there remains no remove reason to falsely implicate the respondent in a case of this nature. He further submits that the trial Court has unnecessarily given weightage to the evidence of P.W.1 and 3. It is his submission that here on the basis of evidence of P.W.1, the trial Court ought to have been recorded conviction for offence under Section 376/511 of I.P.C. 5.Learned counsel for the respondent on the other hand supports finding rendered by the trial Court as regards the failure of the prosecution to establish its case against the respondent. According to him, the evidence of P.W.1 is not reliable and it’s case where only due to arrival of P.W.2, the colour to the incident has been given otherwise. 6.On such rival submission, this Court is now called upon to examine the evidence of the prosecution witnesses to judge the sustainability of the order of acquittal passed on the finding that the evidence is not sufficient to prove that there was an attempt by the respondent to commit rape upon P.W.1. But before going for reappraisal of 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. But before going for reappraisal of 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 case of Basappa v. State of Karnataka; (2014) 57 OCR (SC) 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). 7.The law is fairly well settled that in such cases, the solitary testimony of the victim can be accepted to fasten the guilt upon the accused in case, the same is found to be free from any infirmity and its held to be trust-worth. It has been held in case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, reported in AIR 1983 S.C. 753 , their Lordships in the Hon’ble Apex Court have been pleased to hold that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should be evidence of a girl or the woman who complains of rape or sexual molestation be viewed with the said of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society “........... Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitude, mores, responses of the Indian society and its profile.” 8.Keeping the aforesaid in mind, let’s first examine the evidence of victim-P.W.1. The witness aged about 12 years has been examined in Court with the help of an interpreter as she knows only ‘Kuli’ language. Of course the evidence of doctor P.W.8 is that the age of P.W.1 was more than 15 years but less than 17 years and that according to him has been so opined by giving due margin on both sides. Mother of victim P.W.3 is not stating about the age of the victim. She was grazing cattle near a field, when the respondent came to her after attending call of nature and then immediately squeezed her breasts, made her lie on the ground, removed her chadi by tearing it and then sat over her thighs. She has further stated that in view of sudden happening, she urinated out of fear and also fecal matters came out of her annus and therefore, the respondent left the place. She stated that on her way back home, she met her mother, told her the incident and then mother reported it to father. Now if we look at the F.I.R. Ext.1, it is found that the narration is quite exaggerated that the respondent forcibly attempted to push his penis and penetrate into her vagina when she urinated out of fear. This has been scribed by P.W.7 who has gone to deny. Now if we look at the F.I.R. Ext.1, it is found that the narration is quite exaggerated that the respondent forcibly attempted to push his penis and penetrate into her vagina when she urinated out of fear. This has been scribed by P.W.7 who has gone to deny. Athough she has not stated about the arrival of P.W.2 who raised shout, during her examination in Court, the same finds mention in the F.I.R. P.W.2 having been examined has stated, to have seen both respondent and P.W.1 in standing position with P.W.1 crying and then being asked, P.W.1 stated that the respondent when was about to commit sexual intercourse she urinated and fecal matters came out of her annus for which the respondent left her. The victim when was found to be crying the question of her even going near the respondent out of fear own will in facing such a situation is totally over ruled So simply because P.W.1 has not stated about the arrival of P.W 2, her evidence when is found to have not been shaken in any manner as regards the role of the respondent, the trial Court ought not to have doubted the version of P.W. 1 to the extent of respondent’s role. Rather it is found that P.W.2’s evidence provide ample corroboration to the evidence of P.W.1 that she immediately told about the incident to her. Mother-P.W.3 has also stated what P.W.1 told her. In the meeting held in the village as has been stated by P.W.1 and others including the co-villagers P.W.5 that P.W.1 had narrated in detail about the incident there. P.W.2 having stated before the Court contrary to the F.I.R. version that she had not seen P.W.1 and respondent in compromising position has been taken as circumstances to a adversely view the prosecution case and the version of P.W.1. It is not understood as to how that would have adverse impact upon the testimony of P.W.1, when it is stated by the respondent that the case has been foisted against him to spoil his career and as because he belongs to a different religion, no such evidence is forthcoming. It is not understood as to how that would have adverse impact upon the testimony of P.W.1, when it is stated by the respondent that the case has been foisted against him to spoil his career and as because he belongs to a different religion, no such evidence is forthcoming. It is extremely hard even to accept for a moment that for the purpose life of a girl of such tender age would be put at stake and she would come out to speak falsehood in implicating the respondent in a crime of this nature alleging sexual assault upon her inviting social stigma, causing severe harm for her future life and at the cost of her dignity. The defence version as such does not corrode the credibility of the version of P.W.1, the victim. It is thus found that the trial Court without any such justifiable reason has discarded the version of P.W.1 which is having the ring of truth without any such basic infirmity or exposing any such feature to doubt the same. Thus, the submission of the learned counsel for the State that the appreciation of evidence as done by the trial Court is perverse and it’s a fit case for interference with the order of acquittal merits acceptance. So, there remains compelling reason to differ with the finding of the trial Court in order to prevent miscarriage of justice. Consequently, the order of acquittal is held unsustainable. For the aforesaid discussion and reasons, accepting the version of P.W.1 the respondent is held guilty for commission of the offence under Section 376 read with Section 511 of IPC. 8.In the result, the appeal stands allowed, the order of acquittal is set aside and respondent is convicted for offence under Section 376 read with Section 511 of IPC. Next coming to the question of award of appropriate sentence, taking into consideration the age of the respondent and his suffering with family, and he having continued with the presumption of innocence for nearly two decades, when also the scar on the victim with her family must have settled down. Further, viewing their rural background as well as the strata of the society which they enjoy, this Court feels it just and proper to impose sentence of rigorous imprisonment for a period of one year. The respondent is accordingly directed to surrender in the trial Court to serve out the sentence. Further, viewing their rural background as well as the strata of the society which they enjoy, this Court feels it just and proper to impose sentence of rigorous imprisonment for a period of one year. The respondent is accordingly directed to surrender in the trial Court to serve out the sentence. The trial Court is also directed to take necessary step forthwith as per law to see that the respondent is taken to custody to serve the sentence. It is needless to mention that the period already undergone in custody in this case by the respondent shall be set off. Appeal allowed.