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2015 DIGILAW 303 (ORI)

STATE OF ORISSA v. MIR RAHIM ALII

2015-05-04

D.DASH

body2015
JUDGMENT : D. Dash, J. - The State has called in question the order of acquittal passed by the learned Assistant Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 13/56 of 1991 acquitting the respondent for the charge under Sections 363 /366, IPC. Prosecution case is that the victim aged about 14 years, the daughter of the informant while was reading in village M.W. School had gone to attend the school fest which was being held during evening on the occasion of Republic Day in the year 1991. It is stated that the daughter of the informant had associated herself being involved in different kind of activities in the said school fest. It is said that the programmes continued till late night and after the programme ended the respondent standing near the school gate called the victim girl by giving signal and accordingly the victim went near him. Thereafter, it is stated that the respondent took her on a cycle to Rupsa wherefrom she was further taken to Jaleswar in train and from there they boarded for Bhubaneswar. It is also the case of the prosecution that the victim girl was also taken to Waltear and men to Tata Nagar where they stayed in the house of one Moulabi. In view of such leaving of the victim girl, the family members went on search of her but they could not trace out the victim girl. So, the matter was reported at the Police Station. The father of the victim girl reported about such missing at the Police Station. Subsequently on 18-2-1991, information was received that the respondent was staying with the victim girl at Tata Nagar in the house of one Moulabi. The police officer of the concerned Police Station where the report was lodged by the father of the victim proceeded to the place and finally raiding the house of that Moulabi, rescued the victim and traced out the respondent there. Thereafter, further investigation was made and finally charge-sheet was laid against the respondent for commission of offence under Section 363 /366, IPC. Cognizance of the said offences having been taken, the case got committed to the Court of Session and ultimately it came to be tried by the Assistant Sessions Judge. 2. During trial, prosecution examined nine witnesses, such as, the father of the victim girl (P.W. 1), the witnesses to the recovery of the victim (P.Ws. Cognizance of the said offences having been taken, the case got committed to the Court of Session and ultimately it came to be tried by the Assistant Sessions Judge. 2. During trial, prosecution examined nine witnesses, such as, the father of the victim girl (P.W. 1), the witnesses to the recovery of the victim (P.Ws. 2 and 3) and the victim as P.W. 4. Teachers of the School where the victim girl was reading have also been examined to prove the School admission register. Evidence of the Doctor has also been tendered for the purpose of proving the age of the victim girl. The I.O. in the case has been examined as P.W. 9. Besides the above the documents, such as, the FIR School admission register, reports of the Doctor have also been admitted in evidence. The respondent took the plea of denial and has not adduced any evidence in defence. 3. The trial Court on analyzing the evidence and upon their evaluation has come to the conclusion that the victim girl was aged below 18 years at the time of the incident. However, coming to the most important ingredient for the offences, the finding has been rendered that there remains no such evidence that the respondent held out any inducement to the victim or took any active participation in the formation of the intention of the minor to leave the protection of her parents. It has further been held that the evidence on record has been that it was the victim who had taken the initiative for the purpose of going with the respondent in leaving the village from near the school on the relevant night. In view of this, the trial Court has recorded the acquittal. 4. Learned counsel for the State submits that when specific finding has been given and that is also based on just and proper appreciation of evidence that the victim girl was below 18 years of age at the time of incident, the trial Court ought to have more carefully examined the evidence and ought to have arrived at a conclusion with regard to fulfillment of other ingredients keeping in view that it is a case of minor leaving the village from near the school at the dead of the night and going to far off places with the respondent. According to him, simply because the victim girl had gone to different places with the respondent when her age is found to be below 18 years, the trial Court ought not to have taken that as the circumstance favouring lack of inducement in taking the victim and against the active participation of the respondent in formation of the intention of the minor to leave the protection of her parents. Therefore, he urges that it is a fit case to interfere with the order of acquittal. 5. Learned counsel for the respondent, on the other hand, referring to the depositions of the witnesses including the victim (P.W. 4) contends that the finding of the trial court with regard to the absence of evidence on the score of inducement to the victim and his active participation in formation of the intention of the victim in order to leave the place is just and proper. He further submits that here if the evidence of the victim (P.W. 4) is given a plain reading, it is well seen that she had followed the respondent and the element of taking by this respondent is wholly missing. Of course, the learned counsel for the respondent fairly does not level any challenge to the finding of the trial Court on the score of the age of the victim girl that she was 18 years at that time. 6. 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 Vs. State of Karnataka, 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 Vs. State of A.P. thr. Secretary, 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 Vs. P.K. Surenderan it has also been held that the Appellate Court should not reverse the acquittal merely because another view is possible on evidence. State of A.P. thr. Secretary, 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 Vs. P.K. Surenderan 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. Subramanian Vs. State of Tamil Nadu, ). 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.:-- Bhim Singh Vs. State of Haryana, ). 7. Keeping in mind the rival submission and viewing the above settled position of law, now let us go to examine the sustainability of the finding of the acquittal as passed by the trial Court. At the outset, it is felt apposite to discuss the evidence of P.W. 3. She has stated that at about 2.30 a.m. in the night after the function in the school was over, she came out when respondent gave her the signal to come near the school gate. She further states that responding to such signal, she went near the gate where the respondent told her to go with him and she refused. Next, it is stated that she being threatened, had to follow the respondent. Her evidence is there that she went with the respondent on a cycle to Rupsa and the cycle was kept in the house of another at Rupsa and then they boarded a train to go to Jaleswar. Thus it appears that the victim went on moving from one place to another using public conveyances coming in contact with public during the period. It is his further that from Jaleswar they went to Bhubaneswar, then to Waltear and finally to Tata Nagar. She has also stated to have stayed in the house of one person at Bhubaneswar for two to three days. It is his further that from Jaleswar they went to Bhubaneswar, then to Waltear and finally to Tata Nagar. She has also stated to have stayed in the house of one person at Bhubaneswar for two to three days. It is not her evidence that she was kept under confinement during the time or threatened in any manner that her attempt to disclose her unwillingness to come and about respondent's | threat being the cause to leave was being prevented in any way. The conduct of the victim reveals that she never disclosed about the incident to anybody nor sought for anybody's help during the period. The manner in which the victim has responded is also important to be viewed which leads to infer that they were closely known to each other as otherwise simply getting a signal the victim would not have followed the respondent. No evidence is forthcoming with regard to any resistance from the side of the victim at any point of time or attempt even for making complaint before any person at any time till she was rescued from the house at Tata Nagar. It is also her evidence that from Bhubaneswar they had gone to Waltear and while ultimately leaving for Tata Nagar they had also crossed their native places but no such evidence is coming from the lips of the victim that she had even expressed the desire to flee. All these being cumulatively viewed negative the establishment of the charges. Rather those go to show that there was no inducement by the respondent for the victim girl in leaving the village away from the keeping of her parents. 8. With the above state of affair in the evidence, this Court does not find any justifiable reason to differ with the finding of the trial Court so as to say that the same is the outcome of perverse appreciation of evidence. In the result the appeal stands dismissed. Final Result : Dismissed