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2015 DIGILAW 322 (ORI)

State of Orissa v. G. Nageswar Choudhury

2015-05-08

D.DASH

body2015
JUDGMENT The State has called in question the order of acquittal passed by the learned Special Judge-cum-Sessions Judge, Koraput, Jeypore, in S.C. No. 112 of 1994 acquitting the respondent nos. 1 and 2 of the charge under Sections 376 (2)(g), I.P.C. and Section 3 (2)(v) of the SC & ST (P & A) Act as well as 304-A, I.P.C. and respondent no.3 of the charge under Section 376, I.P.C. 2.The case of the prosecution is that on 22.10.1993 at about 5 P.M. Sapadi Sukru and Kadri Jaya of Bailipadu and Majhi Mangala of Ita Valasa came to Gunjulupadu and informed that the victim had been raped by the respondent no.3 under a Sunari tree at Masanimeta. He also told that being asked he was chased and assaulted. Hearing about the incident Majhi Sunder Rao, Kadri Kandara, Kandri Gadava, Sapadi Sukra and others proceeded to Masanimeta, where they found respondent no.3 pulling the hand of the victim. The victim was lying unconscious and therefore was brought to the village. It is stated that after recovery, she disclosed that on 21.10.1993 in the after-noon she with Dholia Lachu and Budia Sinayya had been to the liquor shop of respondent no.1 to sell fowl and Sahukar arrived there little later and give them liquor to drink. Budia Sinayya being drunk fell down there and Dholia Lachu went to the village. The victim when got heavily intoxicated, the respondent no.1 forcibly took her into the hut and raped her and then respondent no.2 and accused-Bhima came there. In spite of protest, Bhima also raped her. In view of that, she again lost her sense. Regaining her sense, she found herself lying under a tree and finding respondent no.3 there asked for water. But that respondent no.3 raped her there where after some boys arrived before whom she complained severe pain allover her body and expressed that she would not survive. Victim’s husband Budia Adu, and Budia Gangulu came to the village and remained with the victim. On 23.10.1993 morning Sarpanch Kataki Chinna was informed and he came to Gunjulupadu and asked everything to the victim. It is stated that the victim divulged before him about the roles of the respondents in committing rape upon her. One Majhi Sundar Rao came to the Police Station and lodged the F.I.R. 3.Receiving the FIR, Police registered the necessary case against the respondents and took up investigation. It is stated that the victim divulged before him about the roles of the respondents in committing rape upon her. One Majhi Sundar Rao came to the Police Station and lodged the F.I.R. 3.Receiving the FIR, Police registered the necessary case against the respondents and took up investigation. On 24.10.1993 death of the victim was• reported. So inquest was held over the dead body of the victim followed by the preparation of the inquest report and the dead body was sent for post mortem examination. Seizure of incriminating materials were also made followed by preparation of seizure list. The wearing apparels of the respondents and the broken pieces of bangles of the victim were also seized and finally seized incriminating articles were placed to examination by the expert. On completion of the investigation, charge sheet being laid, cognizance of the offence was taken. And upon commitment of the case, the respondents faced the trial. Prosecution in the trial examining thirteen witnesses has also proved the documents such as postmortem examination report, inquest report, seizure list and report of the chemical examiner etc. In defence, respondents took the plea of denial and in support of the same they have examined two witnesses. 4.The trial Court on analysis of evidence laid by the prosecution came to the ultimate conclusion that the prosecution has failed to prove its case against the respondents beyond reasonable doubt by leading cogent evidence. Accordingly, the order of acquittal being passed, the same is now before this Court in appeal preferred by the State. 5.Learned counsel for the State submits that in a case of this nature, the trial Court ought not to have given much important to some minor discrepancy and it ought to have accepted the evidence of P.Ws. 1 and 2 as also the version of the victim made prior to her death. According to him, these items of evidence are sufficient to fasten the guilt upon the respondent. It is his further submission that here the appreciation of the evidence by the trial Court is wholly perverse and clinching evidence regarding the role of the respondents have been lost sight of. Thus, he contends that it is a fit case for interference with the other of acquittal. It is his further submission that here the appreciation of the evidence by the trial Court is wholly perverse and clinching evidence regarding the role of the respondents have been lost sight of. Thus, he contends that it is a fit case for interference with the other of acquittal. Learned counsel for the respondents submits that the trial Court has examined the evidence of each of the witnesses very carefully and being alive to the nature and gravity of the crime in the back drop of the settled position of law. He contends that the evidence as regards the involvement of the respondents in committing rape upon the victim is not believable. It is also his submission that when there lacks proof as regards the complicity of the respondents, the Court below has rightly declined to accept the case of the prosecution by simply being swayed away by the nature and gravity of the offence and its manner of commission. It is his submission that the findings rendered by the trial Court is the out come of the proper appreciation of the evidence and there remains no such illegality or infirmity much less to say any perversity. Therefore, he urges that the appeal bears no merit 6.In order to address the rival submission by examining the evidence on record, it is felt apposite to take note of the position of law with regard to the interference with the order of acquittal in an appeal at the instance of the State and its scope and power in that regard. 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. 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). 7.With the above position of law in mind, this Court is called upon to judge the sustainability of the findings of the trial Court holding the respondents not guilty of the offences for which they stood charge. At the cost of the repetition, it may be stated that the victim being dead particularly after the incident, her statement has not been recorded in course of the investigation and the question of her being examined in Court had thus not arisen. The prosecution for this purpose heavily relies on the declaration of the victim about the incident prior to her death implicating these respondents to have raped her. 8.In this case, the FIR has been exhibited and marked as Ext.14. It appears there from that the P.W.12 came to the Police Station with P.Ws. 5 and 6 and had orally reported the matter which was reduced into writing by P.W.13. Though P.W.5 states to have gone to the police station with P.Ws. 12 and 6, and that P.W.12 reported the matter at the police station; this P.W.12 however denies the said fact of lodging of FIR. It is his evidence that he had put his LTI before the Sarpanch. At the same time the father-in-law of the victim, P.W.6 maintains silence about lodging of FIR. He has further stated that there was a panch meeting and the sarpanch gave a writing to them to be given at the police station which was so given. Thus, it appears that FIR which has been now marked as Ext. 12 is not established to be one which was written by the sarpanch and given at the police station. He has further stated that there was a panch meeting and the sarpanch gave a writing to them to be given at the police station which was so given. Thus, it appears that FIR which has been now marked as Ext. 12 is not established to be one which was written by the sarpanch and given at the police station. This sarpanch has been examined as D.W.l who has stated that being called by Budia Adu and others, he had been village Gunjulupadu to the house of Budia Adu where the victim was lying unconscious. So, he advised to Budia to go to the police station and as requested, he had written the version of Budia Adu and handed over the same to him who proceeded to the police station being accompanied by Budia Gangulu and Balaram Pangi. Thus from the very beginning there arises suspicion that the initial piece of writing which was given at the police station for being treated as FIR has been suppressed. This leads for careful and cautions examination of the evidence on record. Under Ext.14 it is indicated about the declaration of the victim. It is not known whether it was there in the other writing said to have been first given at the police station. When P.W.l has stated that when he was at the thrashing floor of Kadri Gadaba along with Kadri Jaya, Sopadi Sukra, Sopadi Sukra, those persons left the thrashing floor and were going to collect the fire wood. After a while they on return, informed him about commission of rape by the respondent no.3 upon the victim. The prosecution has not examined Sopadi Sukra who has stated to have seen the respondent no.3 committing rape. P.W.3 stated to have gone to the spot and seen the respondent no.3 committing rape upon the victim. This appears quite unbelievable and absurd that for all the period till his arrival, the sexual intercourse would be continuing. P.W. 1 states that P.W.2 had accompanied him, but surprisingly, P.W.2 on his arrival at the spot is saying to have seen the respondent no.3 dragging victim when P.W.12 arrived. P.W.6 the father-in-law of the victim though claims to have gone to the spot with other family members and then called on the sarpanch, he is silent about respondent no.3 committing rape upon the victim as to have seen by him. P.W.6 the father-in-law of the victim though claims to have gone to the spot with other family members and then called on the sarpanch, he is silent about respondent no.3 committing rape upon the victim as to have seen by him. He is also not speaking even about the presence of the respondent no.3 there. P.W.7, the husband of the victim although stated to have seen the respondent no.3 sitting there when he arrived, he is not ascribing any role to the respondent no.3. In such state of affair, in the evidence, the trial Court having said that the versions of each of the witnesses materially differs from one another cannot be said to be a faulty one and the Court below having entertained doubt, the same also cannot be said to be fanciful. 9.As regards the declaration said to have been made by the victim, the same finds place at the FIR Ext. 14 which has remained under cloud as from the evidence, it comes out that the first report which is sought to be lodged an FIR has not seen the light of the day and has been suppressed. The father-in-law of the victim examined as P.W.6 states that the victim had stated about the respondents committing rape upon her, but this is not being stated by any other independent witnesses except P.W.7. P.Ws. 1 and 2 though have not turned hostile, are not saying about any statement to have been made by the victim at any point of time. The prosecution has not explained nor has given any reason as to what have prompted these witnesses not to speak about it. When P.W.6 stated about convening of the panchayati and so called declaration of the victim about rape upon her by the respondents, no other witness is coming forward to speak about the victim’s making statement. Although the evidence on record reveals that such statement of the victim was made when in presence of many other villagers, none of them has been examined. At this moment, the evidence of P.W. 5 bears importance. P.W.6 states that Sarpanch and P.W.5 were present in the meeting. Although the evidence on record reveals that such statement of the victim was made when in presence of many other villagers, none of them has been examined. At this moment, the evidence of P.W. 5 bears importance. P.W.6 states that Sarpanch and P.W.5 were present in the meeting. But P.W.5 being related to the victim being her sister’s husband, he has stated to have found the victim lying over a gunny bag in front of the house of one Dombu being not in a position to talk without even by giving any sign or by moving her hand. 10.In view of above discussion of evidence, the trial Court having refused to place the reliance on the version of P.Ws. 6 and 7, as regards that version said to have been made by the victim, the same cannot be said to be suffering from the vice of perverse appreciation of evidence. Therefore, this Court does not find any such justification to interfere with the order of acquittal. 11.In the wake up aforesaid, the appeal stands dismissed. Appeal dismissed.