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2015 DIGILAW 76 (ORI)

State of Orissa v. Purna Chandra Barik

2015-02-05

D.DASH

body2015
JUDGMENT The State in this appeal has called in question the order of acquittal dated 14.3.1995 passed by the learned Assistant Sessions Judge, Anandapur in S.T. Case No. 26/133 of 1994 arising out of G.R. Case No. 161 of 1994 acquitting the respondents of the charge under Sections 376 (2)(g), I.P.C. 2. Facts necessary for disposal of the above appeal run as under : On 30.06.1994 morning the victim had been to the house of one Arjuna Kar of their village being engaged as a labourer in the marriage ceremony of his daughter. After finishing the work, she was returning home and it was around 11 P.M. that on the way accused Basanti and Kula wrongfully restrained her and she was dragged to the residential house of accused Basanti. It is stated that they tied her hands by rope and covered her face by means of a piece of cloth. The respondents, who were already in that room by then, committed rape upon the victim, one after the other by removing her undergarments. After the incident those two lady accused persons untied the victim, who came out. The respondents are said to have been indentified with the electric light while they were away from the room. The victim in the night slept at home without informing her parents. On the following day around 4 P.M., the step mother of the victim noticed her to be limping and on her query the victim remained reluctant to tell anything. But when she removed her undergarments and saw the stains of blood, the victim had no other way but to disclose the incident. The mother conveyed the same to father of the victim and then in turn it was told to the village member, who convened a meeting in the village on that day where those lady accused persons were called and confessed their guilt further attributing the respondents to have committed rape upon the victim. As no decision could be taken in the meeting, on the following day, i.e., on 02.07.1994 during noon hours the victim and her parents orally reported the matter to the A.S.I. of the Sainkul Outpost who reduced the version to writing making necessary entry in the station diary book. Immediately investigation was taken up, sending the extract of the station diary entry to Ramchandrapur Police Station for registration of the regular case. Immediately investigation was taken up, sending the extract of the station diary entry to Ramchandrapur Police Station for registration of the regular case. In view of that P.S. Case No. 30 of 1994 being registered, the A.S.I. continued with the investigation as before. 3.In course of investigation, the victim, her step mother, father and other witnesses were examined. The victim was also sent for medical examination. Her wearing apparels being seized, those with the wearing apparels of the respondents were sent for chemical examination. Finally, charge-sheet being submitted, the respondents faced the trial for the offences as stated above. The plea of the defence is that of complete denial and false implication. 4.During trial the prosecution examined in total thirteen witnesses and proved the seizure list, medical examination report of the victim as well as of the respondents, reports of the Radiologist and chemical examiner, the report of the Serologist and that of the Scientific Officer of DFSL. 5.The defence instead of examining any witness has proved the certified copy of the order of this Court in Criminal Misc. Case No. 1954 of 1994 and also the certified copy of the order of the learned Sessions Judge, Keonjhar in Criminal Misc. Case No. 166 of 1994. During trial the rope, piece of cloth as well as the wearing apparels seized in connection with the case were produced and marked as material objects. Out of those witnesses, P.W.1 is the informant who is the step mother of the victim whereas P.W.3 is the father of the victim. The victim has come to the dock as P.W.2. The village member informed about the incident has come as P.W.4. The witness, who was staying in one room of accused Basanti has also been examined as P.W.6. The paternal uncle of the victim and the brother of P.W.3 has been examined as P.W.5 being present at the place where the victim had gone to work. The Doctors have deposed as P.Ws. 11 and 12. The I.O. has come at last as P.W. 13 and the other police constables associated in the process of investigation have also been examined as P.Ws. 9 and 10. 6.The trial Court on evaluation of evidence has given a categorical finding that the victim was raped. The Doctors have deposed as P.Ws. 11 and 12. The I.O. has come at last as P.W. 13 and the other police constables associated in the process of investigation have also been examined as P.Ws. 9 and 10. 6.The trial Court on evaluation of evidence has given a categorical finding that the victim was raped. However, on further examination of evidence a conclusion has been arrived at that the prosecution has not been able to establish the charge of rape against these respondents. It has also been held that the evidence with regard to the complicity of the respondents are not trustworthy and reliable. So, they have been acquitted giving the benefit of doubt. The other lady accused persons have of course been convicted. 7.Learned counsel for the State submits that the appreciation of evidence so far as the complicity of the respondents are concerned has not been properly done by the trial Court and scoffing off of some flimsy reasons doubt has been entertained by the trial Court. According to him, such appreciation of evidence is wholly perverse and, therefore, the outcome i.e., the order of acquittal recorded against the respondents is unsustainable in the eye of law and that has to be interfered with. In support of his submission, he has drawn the attention of this Court to the evidence of the prosecution witnesses mainly the victim and her parents. He submits that there remains no such reason to discard their evidence with regard to the complicity of the respondents. 8.Learned counsel for the respondents, on the other hand, submits all in favour of the findings rendered by the trial Court saying it to have been based on proper appreciation of evidence. According to him, there is absolutely no acceptable evidence with regard to the identification of these respondents and the improvement said to have been made during trial has rightly been discarded by the trial Court. Therefore, he contends that the appeal bears no merit and there arises no reason to interfere with the order of acquittal within this scope and power of this Court in seisin of an appeal against the order of acquittal. Therefore, he contends that the appeal bears no merit and there arises no reason to interfere with the order of acquittal within this scope and power of this Court in seisin of an appeal against the order of acquittal. 9.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.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). 10.Now, therefore, keeping the aforesaid rival contentions in mind the evidence let in by the prosecution is required to be examined in the light of the settled principles of law as stated above. It has been deposed by the mother-informant (P.W.1) that the victim had not disclosed the names of the respondents though she had stated that she was raped by two boys in the house of accused Basanti. It has been deposed by the mother-informant (P.W.1) that the victim had not disclosed the names of the respondents though she had stated that she was raped by two boys in the house of accused Basanti. She has further stated that in the village meeting, accused Basanti when expressed her ignorance, accused Kula disclosed that she could identify the shop of the boys, who had committed rape upon the victim. Though it is stated by her that accused Kula had then taken the panch members to the shop to identify, she claims to have not accompanied them. She has clearly stated to have not told the police the names of these respondents either at the time of her initial reporting or thereafter during her examination in case of investigation. In Court she has specifically stated to have not known these respondents. She has also expressed her ignorance as to how the names of these respondents found place in the F.I.R. Next, comes the evidence of the victim which is most important. While narrating the incident, she has stated that these accused persons raped her in the house of accused Basanti. She has further stated to have disclosed it before P.W.1, the names of these respondents to have committed rape upon her. She has admitted to have not disclosed the names of respondents nos.1 and 2 to have committed rape upon her in further describing the roles played by them prior to the actual incident of rape. So, the evidence of the victim does not get support from the evidence of P.W.1 as regards the complicity of the respondents and rather on material aspect their evidence are in variance. When P.W.3 the father has stated to have known the names of the respondents as the culprits from P.W.1 that again does not find support from the evidence of P.W.1. There again arises the variance that when P.W.3 states that the lady accused persons disclosed the names of these respondents, it is stated completely different by P.Ws. 1 and 2 that the victim was totally silent about such disclosure being made by the lady accused persons. This P.W. 3 again during cross-examination has admitted to have not stated the involvement of these respondents before the police. P.W.4 the village member has not supported the prosecution case. 1 and 2 that the victim was totally silent about such disclosure being made by the lady accused persons. This P.W. 3 again during cross-examination has admitted to have not stated the involvement of these respondents before the police. P.W.4 the village member has not supported the prosecution case. The uncle of the victim (P.W.5) is stating as if for the first time the names of these respondents came out in the meeting, itself. The evidence of P.W.6 is of no help to the prosecution. The respondents are the residents of village Sainkula whereas the victim’s place of residence is village Barapada. It is not coming out in evidence that these respondents were known to the victim and her family members earlier. That apart even accepting for a moment that they were not known during investigation, no steps have been taken for holding the T.I. parade in order to provide corroboration to the identification in the Court. In the F.I.R. no such indication is given that the victim had disclosed the names of these respondents and when it is stated by the informant P.W.1 that the lady accused persons had not stated the names of the respondents, it is further indicated in the F.I.R. that they had so disclosed in the meeting. In such state of affair in the evidence it is important to take note of the evidence of P.W.2 the victim, who has stated to have gone to Cuttack and disclosed before the Officer on oath that two unknown persons had raped her and also that she had not disclosed the names of those persons to her mother on being asked and she is offering no explanation to wriggle out of it. The settled position of law that the solitary testimony of the victim in such type of case can form the foundation of conviction of the accused persons provided the same is trustworthy and reliable and corroboration is not the sine qua non for such acceptance. From the aforesaid discussion of evidence of P.W.2 when the same is tested with the evidence of other witnesses, the trial Court cannot be said to have unjustly refused to act upon the solitary testimony of P.W.2 in rendering the finding that the respondents are guilty of the offence for which they stood charged. From the aforesaid discussion of evidence of P.W.2 when the same is tested with the evidence of other witnesses, the trial Court cannot be said to have unjustly refused to act upon the solitary testimony of P.W.2 in rendering the finding that the respondents are guilty of the offence for which they stood charged. The appreciation of evidence as done by the trial Court is thus not found to be perverse and so also the conclusion in acquitting the respondents holding that their complicity in the said incident has not been established beyond reasonable doubt. 11.Resultantly, the appeal stands dismissed. Appeal dismissed.