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2015 DIGILAW 199 (ORI)

State of Orissa v. Surendra Pradhan

2015-03-25

D.DASH

body2015
JUDGMENT The State in this appeal has called in question the order of acquittal passed by the learned Assistant Sessions Judge, Aska in S.C. Case No. 8 of 1995 acquitting the respondents of the charge under Section 450/376, I.P.C. The complainant has also filed an appeal questioning the said order of acquittal. 2. Fact necessary for disposal of the above appeal run as under: On 14.10.1993 night, the complainant was sleeping in her house waiting for her children for their return after attending a feast. It is around 10 P.M., the accused finding the complainant alone in her house made an entry. It is alleged that the accused then slept over the complaint. So, she wake up and raised hulla. When the accused closed her mouth using his palm and told her not to raise shout any more. Thereafter the accused gagged her by means of a saree, squeezed her breast and did sexual intercourse against her will. At the point of time P.W.2 arrived at the from verandah of the complainant and she focused her torch light. Seeing this, accused got up and made good his escape through the back door. On 15.10.1993, the complainant reported the matter at the Aska Police Station and necessary case was registered. Both the accused and victim were medically examined. Final report being submitted the same got tagged with the complainant case which was earlier instituted. Ultimately cognizance of offence under Section 450/376 IPC was taken and the case got committed to the Court of sessions. That is how the accused faced the trial. 3.During trial the prosecution examined in total eight witnesses. Besides the same, the plain paper F.I.R. Ext. 1. Medical examination report and seizure list have been admitted in evidence. P.W. 1 is the complainant when P.W.2 is the lady who is said to have arrived at the place of occurrence. The medical experts are P.W. 4 and 7, P.W.5 is a co-villager and P.W.6 is the son of uncle-in-law of the complainant. The investigating officer has come to the dock at last as P.W.8. The plea of the defence is that of complete denial and false implication in view of village rivalry and prior litigation. The medical experts are P.W. 4 and 7, P.W.5 is a co-villager and P.W.6 is the son of uncle-in-law of the complainant. The investigating officer has come to the dock at last as P.W.8. The plea of the defence is that of complete denial and false implication in view of village rivalry and prior litigation. 4.The trial Court on evaluation of evidence on record and viewing the circumstances emanating therefrom has finally found the prosecution to have not been able to establish the charge against the accused beyond reasonable doubt and accordingly the trial Court has extended the benefit of doubt to the accused. 5.Learned counsel for the State as also the complainant submits that in the present case the appreciation of evidence as done by the trial Court is perverse. According to him, the trial Court has taken all attempts to pick up some flimsy reasons from the evidence of the witnesses and then have gone to render the finding against the prosecution case. According to him, the evidence of complainant is quite satisfactory to bring home the charge against the accused. It is also his submission that here even, the complainant’s evidence has received due corroboration on other aspects. Therefore, in view of the settled position of law that a conviction can be based on solitary testimony of the victim of the crime of this nature, the trial Court, according to him, has committed gross error in acquitting the accused. 6.Learned counsel for the respondents, on the other hand, supports the finding of the trial Court. According to him, making a threadbare discussion of all the evidence and placing those for appreciation along with the circumstances as those have surface from the evidence, just and proper finding having been rendered, the same is not liable to be set at naught. 7.Before going to reappreciate 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 Vrs. State of Karnataka; (2014) 57 OCR 1044 that the High Court in an appeal under Section 378 Cr. 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.Now, therefore, keeping the aforesaid principle of law in mind and in view rival submission, the evidence let in by the prosecution is required to be examined in the light of the settled principles of law as stated above. Admittedly, the complainant is a widow and her husband had died six months before the incident leaving the complaint, a son and a daughter. According to her evidence the son and daughter are within the age group of 15 to 16 years. The accused is an agnatic relation of the husband of the complainant and is a resident of that village. It is the settled position of law that a conviction can be based upon the solitary testimony of the victim provided of course the evidence is found to be free from any basic infirmity, in which case the Court will require due corroboration from the other sources, also when the probability factor does not render it unworthy of credit. It is the settled position of law that a conviction can be based upon the solitary testimony of the victim provided of course the evidence is found to be free from any basic infirmity, in which case the Court will require due corroboration from the other sources, also when the probability factor does not render it unworthy of credit. 9.Coming to the evidence of the victim, she is found to have stated that after accused made forcible sexual intercourse and when accused slept over her, she was trying the free herself and then hearing sound P.W.2 came and focused torch light when accused ran away. She has further stated that as soon as P.W.2 focussed torch light, accused got up and fled away. P.W.2 has also stated to have focused torch light whereafter accused fled away through the backdoor. The evidence of P.W. 2 is to the effect that on hearing some sound during night when she came out and focused from a torch light, she found the door of the complainant to be half open. When, she switched on the torch light, the victim was seen to be lying on the ground in a naked condition with some portion of saree in her mouth. The accused was then sitting over her in a compromising position. The trial Court has noted some other important features appearing in evidence to come to a conclusion that they were sleeping side-by-side. Having gone to discuss the evidence of all the witnesses, the trial Court has not been able to place reliance on those so as to base an order of conviction for the above offences. Adverting to the evidence of P.W.2 it is seen that she has stated that after pushing the door, she switched on the torch light and then she found the victim to be sleeping and her head was facing the front door. It is also her evidence that the accused had slept keeping his face towards the front door. Thus as per her evidence both were sleeping facing front side door. So the evidence of P.W.2 that the accused was sleeping over the victim gets pushed to the arena of grave doubt, seriously tending to rise eye brows in inviting doubts over the evidence of P.W. 1 as regards the actual incident. Thus as per her evidence both were sleeping facing front side door. So the evidence of P.W.2 that the accused was sleeping over the victim gets pushed to the arena of grave doubt, seriously tending to rise eye brows in inviting doubts over the evidence of P.W. 1 as regards the actual incident. The position of sleeping by both as per the evidence of P.W.2, being viewed with the age of the victim shows the improbability with the prosecution version. All these rather go to show the case may be an outcome of instinct of self falsification in view of arrival of P.W. 2 and that possibility in the totality of facts and circumstances is not completely ruled out. This further finds support from the fact that P.W.2 after seeing this, has not shown the usual and normal conduct having not called her husband and then further being there with the victim together for some time after the accused fled away, and discussed in that mid night and then going to the house of P.W. 5 who happens to be the employer of the son of the victim and the political opponent of the petitioner when earlier there had been direct fight between them in the Panchayat election. The trial Court has again discussed as to how the prosecution in the case having attempted to provide support to the case by proving the injury report of a private medical practitioner has been caught in the net of rather falsity. The trial Court has vividly discussed the same and thereafter has not been able to rule out the possibility of the injuries as shown to have been brought into being by way of self-infliction for the purpose. It has also been noticed as to how the doctor being examined in this case as P.W. 4 has shown his over-interestedness. The victim lady having come to the police station, thereafter having been examined by the private doctor when no such explanation has led the trial Court to doubt the version of the prosecutrix. The view in the fact and circumstance of the case appears to be a reasonable one. The victim lady having come to the police station, thereafter having been examined by the private doctor when no such explanation has led the trial Court to doubt the version of the prosecutrix. The view in the fact and circumstance of the case appears to be a reasonable one. Further, there appears improbabilities in the narration of the incident as made by the P.W.1 that she had been protesting at the relevant time by moving her legs when she says that however during that period the penis of the accused was still there inside her vagina. It is further stated that there was no discharge of semen. But the medical report reveals otherwise. The testimony of P.W.1 is thus found to be not free from basic infirmity and the probability factors also render it un-creditworthy of credit. The trial Court as it appears has made thread bare discussion of the offence in ultimately refusing to fasten the guilt upon the accused. This Court on reappraisal of the offence as indicated above also does not find any justification to interfere with the finding of the trial Court being not in a position to hold that such finding is the outcome of perverse appreciation. For the aforesaid discussion and reason, the order of acquittal does not call for interference. 10.Resultantly, both the appeals stand dismissed. Appeal dismised.