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2017 DIGILAW 1051 (ORI)

Umesh Ram v. State of Odisha

2017-09-14

D.DASH

body2017
JUDGMENT : 1. The appellant from inside the jail has preferred this appeal challenging the judgment of conviction and order of sentence dated 30.05.2015 passed by the learned Assistant Sessions Judge Special Track Court, Baripada in S.T. Case No. 32/253 of 2014. By the said judgment, the appellant has been found guilty for commission of offence punishable under sections 343/323/376(1) IPC which has been followed by an order directing the appellant to undergo rigorous imprisonment for four months and to pay a fine of Rs.300/-in default to undergo simple imprisonment for a period of seven months for offence under sections 341/323 IPC and to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/-with default stipulation to further undergo rigorous imprisonment for six months for offence under section 376(1) IPC with the stipulation that the substantive sentences would run concurrently. 2. Prosecution case in short is that on 29.08.2014 during the noon hour the victim-informant, P.W.1 with her husband, P.W.2 had been to the house of her daughter, P.W.3, at village Jharia near their village under the jurisdiction of the same police station. During the afternoon the daughter of the victim gave her father watered rice (Pakhal) in a bowl. No sooner did it was so served; the appellant snatched it away and abused P.W.2 using obscene words and assaulted him by means of split bamboo. When P.W.3, the daughter of the victim went to rescue her father, P.W.2, she was assaulted by fist blows and kicks. It is alleged that the appellant then chased P.Ws. 2 and 3 by brandishing an axe and for that reason they had to take shelter in the house of one Deba Ram of village Jharia. It is next alleged that as the appellant threatened the victim by brandishing the axe and directed her to remain in the house, the victim had no alternative before her but to abide by it. It is the further case of the prosecution that during the night when the victim slept inside the room, the appellant entered inside by scaling over the wall and committed rape on her. The victim though somehow managed to go outside the house, the appellant even in a naked condition chased her and on the way since the victim shouted, the appellant fled away. The victim though somehow managed to go outside the house, the appellant even in a naked condition chased her and on the way since the victim shouted, the appellant fled away. It is stated that the brother of the appellant then took the victim to the house of that person where P.Ws. 2 and 3 had taken shelter for the night where she narrated the incident. 3. With these allegations victim, P.W.1 having lodged the FIR at Rasgobindpur Police Station, P.S. Case No. 88 of 12014 on being registered, investigation commenced. On completion of the investigation, after recording the statements of the witnesses including that of the victim under section 164 of the Code of Criminal Procedure and the medical examination of the victim with the seizure of the incriminating materials, charge sheet has been submitted against the appellant to face his trial in the court of law for commission of offence under sections 294/323/341/342/ 506/ 376 IPC. Cognizance of the above offences being taken, the case was committed to the court of Sessions which ultimately came to be tried by the learned Assistant Sessions Judge Special Track Court, Baripada. The trial court having framed the charge for the above offences, the trial commenced. The appellant took the plea of denial. 4. The prosecution in the trial has examined in total sixteen witnesses besides leading the documentary evidence by proving the FIR, Ext.1, the medical report of the victim, Ext.5 and that of the appellant Ext.4 as well as others such as seizure lists, statement of P.W.1 recorded under section 164 Cr.P.C. etc. Defence has examined none. The learned trial court formulating the points for determination, upon scrutiny of evidence on record and their evaluation has held the appellant guilty of commission of offence under sections 341/323/ 376 IPC and accordingly the appellant has been convicted and sentenced as afore stated. 5. Mr. R.L.Pattnaik, learned counsel appearing on behalf of the appellant submits that the evidence of the victim, P.W.1 when read in entirety, the prosecution case is to be held to be highly improbable and her evidence is thus liable to be discarded being untrustworthy. According to him, the learned trial court ought not to have relied upon the evidence of P.Ws. R.L.Pattnaik, learned counsel appearing on behalf of the appellant submits that the evidence of the victim, P.W.1 when read in entirety, the prosecution case is to be held to be highly improbable and her evidence is thus liable to be discarded being untrustworthy. According to him, the learned trial court ought not to have relied upon the evidence of P.Ws. 1, 2 and 3 and it ought to have been held that because of the serious family dispute prevailing for long time, the case has been foisted against the appellant. He has taken pain of placing the entire deposition of P.Ws. 1, 2 and 3 in course hearing before this Court. It is also submitted that the evidence of P.W.1 that the appellant had entered into the room by scaling over the wall is highly improbable and unbelievable and then again the victim’s version that she escaped by opening the shackle lock is not believable and therefore it is unsafe to rely upon the evidence of P.W.1 to fasten the criminal liability upon the appellant. Thus he submits that the finding of guilt recorded against the appellant for commission of offence under sections 323/341/376(1) IPC is unsustainable. 6. Miss. S.Ratho, learned Additional Government Advocate submits all in favour of the finding of guilt against the appellant as recorded by the trial court. It is her submission that taking the totality of the facts and circumstances which emanate from the evidence on record and the relationship of the parties which stands admitted, the trial court did commit no error in accepting the evidence of the prosecution witnesses more particularly P.Ws. 1, 2 and 3 who are wholly trustworthy and reliable. It is also submitted that the trial court has made detail discussion of the evidence on record and has rightly arrived at the conclusion that the prosecution has established its case beyond reasonable doubt. 7. In order to address the rival submission in examining the sustainability of the finding of the guilt as recorded by the trial court against the appellant, first of all the settled principle of law covering the field be taken note of. In case of State of Rajasthan Vrs. Noor Khan, 2000 SCC (Cri) 898, the Apex Court in Paragraph-11 have held: “It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. In case of State of Rajasthan Vrs. Noor Khan, 2000 SCC (Cri) 898, the Apex Court in Paragraph-11 have held: “It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter a criminal charge. However, if the Court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. Reference may be had to a long chain of decisions, some of which are Rameshwar, Sidheswar Ganguly, Madhoram & Another, State of Maharashta v. Chandraprakash Kewalchand Jain, Madam Gopal Kaddad, Shri Narayan, Karnel Singh, Bodhisattwa Gautam and Gurmit Singh (supra). We may quote from the last of the above said decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words: “.... If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations.” 8. Keeping the aforesaid settled principle of law in mind, let me carefully scrutinize the evidence of P.W.1 and others to arrive at a conclusion as to whether the prosecution story as alleged in the facts and circumstances, inspires confidence and whether the victim, P.W.1 is a witness worthy of credence so that her testimony can be relied up for the purpose. In the instant case the mother-in-law, P.W.1 is implicating her son-in-law, the appellant for committing rape upon her and add to it, the father-in-law of the appellant i.e. P.W.2 as also the appellant’s wife, P.W.3 have supported the prosecution case though not stating the main incident which they are not supposed to, which took place inside of the room as has been stated by P.W.1 regarding sexual assault yet they have stated about the incident prior to it and also describing the subsequent events which are found to be having the continuity in a natural manner. The victim, P.W.1 has lodged the FIR being drafted by P.W.14 who has stated to have so drafted which has been marked Ext.1. P.W.14 has further stated to have scribed Ext.1, under the instruction of P.W.1 and accordingly to have provided necessary endorsement in that respect under his signature in evidence admitted and marked as Ext.1/1. P.W.2, the father-in-law of the appellant has stated about their arrival during the mid day in the house of their son-in-law, the appellant where after their daughter provided him with bowl full of watered rice (pakhal) which is said to have been snatched and thrown away by the appellant. He has also stated about the later incident how he was abused and assaulted and that when her daughter, P.W.3 came to his rescue, she was also assaulted by the appellant. It is also the evidence that the appellant had chased them, for which they had to take shelter in the house of one Deba Ram for the night. He has next stated about arrival of P.W.1 sometime during the mid night and going to narrate that most shocking episode in her own style. P.W.3, the daughter of P.Ws. 1 and 2 and wife of the appellant has also stated in the same vain which tally with one another on material particulars. This being the evidence of P.Ws. 2 and 3, next the evidence of P.W.1, the victim about the incident with regard to the sexual assault upon her by the appellant stand like this – that the appellant suddenly after the mid night entered into the room where she was sleeping by scaling over the wall and committed rape on her despite her protest and instead of putting any self restraint, the appellant continued with the said indecent activity. It is her further evidence that somehow she managed to come out when the appellant even in a naked condition did chase her and finally left her seeing two to three persons who arrived there hearing the shout of the informant which she did as was further caught hold off by the appellant on the way. She has also stated that no sooner did she arrive near that house in the village where P.Ws. 2 and 3 had taken the shelter for the night, she stated all those unexpected happenings before them. She has proved the information which had been given by her at the Police Station which has been admitted in evidence and marked as Ext.1. The witnesses on being put to searching cross-examination, has stated all the details about the situation of the room and the varandah going to explain that the room was having the mud walls without being joined up till the roof completely overruling the improbability factor. Ordinarily in our tradition bound society, a woman of this age and with such pious relationship with the offender is likely at this instant point of time to lose mental balance to think as what to do, being not able at that moment to believe her own eyes as to the most unexpected sexual assault upon her in such manner by a person having such relationship and being a victim to it. So in this particular case non-resistance by P.W.1, non-sustaining of any injury by her are no significance to entertain any doubt on the evidence of P.W.1 so as to treat the evidence as untrustworthy and unsafe to be relied upon. The question of false implication in the totality of facts and circumstance does not also arise. 9. Having carefully examined the evidence of P.W.1 and bestowing anxious and thoughtful consideration, I thus find no fault with the trial court’s finding in fastening the guilt of commission of offence under sections 323/341/376(1) IPC upon the appellant. 10. For the aforesaid discussion and reasons, the judgment of conviction of the appellant for commission of offence under sections 323/341/376 IPC is found to be wholly defensible and therefore the same stands affirmed. In so far as the quantum of sentence is concerned, I find that the same as just and proper and to be commensurate in the facts and circumstances of the case. In so far as the quantum of sentence is concerned, I find that the same as just and proper and to be commensurate in the facts and circumstances of the case. Therefore, the judgment of conviction and order of sentence are hereby confirmed. 11. Resultantly, the appeal stands dismissed. L.C.R received be sent back forthwith along with a copy of this judgment.