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2015 DIGILAW 73 (ORI)

State of Orissa v. Padman Duria

2015-02-05

D.DASH

body2015
JUDGMENT : The State in this appeal has called in question the order of acquittal of the respondent No.1 passed by learned Sessions Judge, Kalahandi acquitting him of the offence under Section 363/376 of IPC and. other respondents of the charge under those sections with the aid of section 109/34 of IPC in S.C Case No. 27 of 1996. 2. On 10.12.1995 after noon around 4.00 a.m mother of the victim (P.W.1) lodged a written report before Khariar Police Station stating therein about the kidnapping of her minor daughter aged about 13 years (P. W.1 0) from their house, on 09.12.1995 evening during their absence. It is also stated therein that despite of search, the daughter could not be traced. 3. The prosecution case is that the respondent no.1 along with other respondents kidnapped the minor daughter of P.W.1 by gagging her mouth at the point of knife and took her Bhaludungri Forest area. It is stated that there respondent no.1 was left with the victim girl when others came back. Finally the victim was rescued from the house of P.W.S. It is stated that the respondent no.1 had committed rape upon the victim. . After the victim was rescued, her wearing apparels were seized and she as well as respondent no. 1 were medically examined. Finally on completion of investigation charge sheet being submitted, the respondents faced the trial for the above offences. 4. The respondents took the plea of denial and false implication in view of the long standing ill-feeling between the two groups of the village, between touchables and untouchables. It is stated that in order to harass the respondents who were on the rival camp. P.W.1 0 has been set up for the purpose and she has so chosen being a girl of easy virtue. 5. The prosecution in order to establish the charge has examined twelve witnesses. As already stated P.W.1 is the father of victim whereas P.W.10 is the victim herself. The doctors have been examined as P.W. 2 and P. W.11. Besides the above, other witnesses have been examined to prove the seizure of incriminating articles etc. The defence has examined none. 6. The prosecution in order to establish the charge has examined twelve witnesses. As already stated P.W.1 is the father of victim whereas P.W.10 is the victim herself. The doctors have been examined as P.W. 2 and P. W.11. Besides the above, other witnesses have been examined to prove the seizure of incriminating articles etc. The defence has examined none. 6. The trial Court on analysis of evidence and upon their evaluation has disbelieved the prosecution version by refusing the place reliance upon the evidence of the victim, her father as also of other witnesses as those have been found by the trial Court be filled with basic infirmity and as such untrustworthy. Therefore, finally order of acquittal h.as been recorded on the ground that the prosecution has failed to establish its case beyond reasonable doubt by leading clear cogent and acceptable evidence. 7. Learned counsel for the State submits that the appreciation of evidence by the trial Court especially that P.W.10 and P.W.1 is wholly perverse. According to her, there remains no such apparent reasons for the victim - P.W.10 to falsely implicate respondents by going to state against her chastity and at the risk of inviting serious stigma. She further contends that on the reading of the judgment of the trial Court, rather it reveals that some flimsy grounds have been picked up and chosen as if, the Court was in a mood to so describe the evidence of P.W.1 O. Therefore, he urges before this Court to interfere with the order of acquittal. 8. Learned counsel for the respondents submits all in favour of the finding rendered by the trial Court. According to her, the evidence of P.W.1 is highly unreliable in present case and she cannot be said to be a trustworthy witness. Therefore, according to her, the trial Court, has rightly refused to accept her evidence in finding the complicity of .the respondents on the face of the evidence available regarding the bitter ill feeling and bad blood flowing between the accused persons of one hand and the members of the prosecution party on the others. Therefore, according to her, the trial Court, has rightly refused to accept her evidence in finding the complicity of .the respondents on the face of the evidence available regarding the bitter ill feeling and bad blood flowing between the accused persons of one hand and the members of the prosecution party on the others. He further submits that the Court below having gone for a thread bare analysis and having critically examined the evidence, when has taken the view which is not at all unreasonable, this Court in view of the settled position of law should not be inclined to interfere with the final order of acquittal by taking a different view. 9. Before going to re- appreciate 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) 47 OCR 1044 that the High Court in an appeal under section. 378 Cr. P.C. is entitled to reappraise the evidence and put the conclusion drawn by the trial Court to test but the same is permissible only if the judgement 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 bee held that the world "perverse" in terms as understood in law has been defiried 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 Dot reverse the acquittal merely because another view. is possible on evidence. It has been clarified. that if two views are reasonably possible on the vary 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) 10. 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) 10. Now, therefore, keeping the rival submission in mind and in view of the settled position of law, the Court is called upon to approach the evidence of prosecution to find out as to whether the order of acquittal is based upon perverse appreciation of evidence or it is just and proper. P.W.10 is the victim. Admittedly there is strong ill feeling and enmity between the respondents and other on one hand and the members of the prosecution party on the other and it is very deep rooted being on the ground of touchability. It is even admitted that there was long standing litigation in this regard. As per the settled position of law though such enmity is not a ground to discard the prosecution evidence altogether, but in a case of this nature certainly the evidence is required to be scanned with care so as to eliminate the possibility of false roping. The F.I.R, Ext.1 shows as if it was only respondent Padman Duria who had taken P.W.10. from the beginning. Evidence appear to be contradictory when she again states to have been lifted by all. P. Ws. 4 and 5 examined as the eye witnessess do not implicate any of the respondent except respondent no.1. It is not stated anywhere by then as regards the involvement of others. P.W.1 has categorically stated that Sunil, her daughter informed her about the role played by respondent no.1 in forcibly taking away P.W.10. This witness is a literate person. Next, coming to the evidence of P.W.10, her evidence from the beginning appears to be exaggerated. She has stated that all the respondent lifted her physically and carried her to deep forest; where except respondent nos. 1 others left and then she states about the rape. It also appears to be improbable that all the respondents would be carrying her into the forest and then she would be left only with respondent no.1. She has not stated as to what course of action she adopted after she was left alone. 1 others left and then she states about the rape. It also appears to be improbable that all the respondents would be carrying her into the forest and then she would be left only with respondent no.1. She has not stated as to what course of action she adopted after she was left alone. The age of the victim is also found to be more than 16 given marginal error to her age as ascertained through the ossification test. P.W.10. further states that the respondent no.1 repeatedly went from sexually intercourse for four times. Eye witnessess stated to be there have not been examined. The evidence of P.W.10 if duly examined does not appear to be acceptable. The respondent no.1 and others when have stated to have forcibly taken away; she is stating that only during the sexual intercourse, she left pain and that too after four times of repeated sexual intercourse. There was no resistance, no such marks or signs. Moreover, the incident of rape as projected shows improbability. The trial Court has made elaborate discussion of evidence in finding out material discrepancies. As regards recovery of P.W.10, when the states to have been kept by respondent no.1 in a room in the house of P.W.8 being chained from outside, P.W.12 the I.O. proves that this was not stated in her statement. P.W.s 8 and 9 do not state about police going to rescue P.W.10 from the house. This further creates doubt regarding the occurrence as depicted by prosecution. 10. In view of the aforesaid discussion of evidence and reason, this Court finds no such justifiable reason to say that the appreciation of evidence made by trial Court is perverse so as to interfere with the order of acquittal. Accordingly, the appeal is dismissed.