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2017 DIGILAW 1052 (ORI)

Upendra Barik 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 03.10.2008 passed by the learned Ad hoc Additional. Sessions Judge (F.T.C.) Padampur in Criminal Trial No. 163/9 of 2007-2008. By the said judgment and order, the appellant having found guilty for commission of offence punishable under section 366-A and 376 IPC, has been visited with the sentence to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/-with the default stipulation to further undergo simple imprisonment for one year. 2. Prosecution case in short is that on 02.04.2007 around 7.00 PM when the P.W.7 had gone to attend the call of nature, the appellant with others gagged her mouth by handkerchief and forcibly took her away. It is stated that for the said reason, the victim lost her sense and when she regained, she found herself in the house of one Abhina Barik who is the uncle of the appellant. It is the further case of the prosecution that the victim was kept confined in the house and being forced to live in one room with the appellant in the night, she was ravished by the appellant. The victim was then taken to another village in the State of Jharkhand and keeping her there in a house, the appellant again raped her. The father of the victim, P.W.5 has lodged the FIR on 03.04.2007 informing that since the previous evening, the victim, P.W.7 had not returned from the place where she had gone to attend the call of nature and despite on thorough search in the village and nearby, she was not found. An information having come to be received by them that the appellant was also absent in the village the same was so intimated thereby raising a suspicion on the role of the appellant in kidnapping her daughter, P.W.7. This led to the registration of Paikmal P.S. Case No.27 of 2007 corresponding to G.R. Case No. 82 of 2007 on the file of learned S.D.J.M., Padampur. Police took up investigation and finally submitted charge-sheet against the appellant to face his trial in the court of law for commission of offence under section 366-A and 376 IPC. This led to the registration of Paikmal P.S. Case No.27 of 2007 corresponding to G.R. Case No. 82 of 2007 on the file of learned S.D.J.M., Padampur. Police took up investigation and finally submitted charge-sheet against the appellant to face his trial in the court of law for commission of offence under section 366-A and 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 Ad hoc Additional Sessions Judge, (FTC), Padampur. 3. The trial court having framed the charge for the above offences, the trial commenced. During trial the appellant took the plea of denial. The prosecution in the trial has examined in total eleven witnesses besides leading the documentary evidence by proving the FIR, Ext.6, the medical report of the victim, Ext.1 and that of the appellant Ext.3. Defence has examined none. 4. The learned trial court formulating the points for determination, on scrutiny of evidence on record and their evaluation has held the appellant guilty of commission of offence only under section 376, I.P.C. and accordingly he has been convicted and sentenced as afore-stated. 5. Mr. Chitta Ranjan Sahoo, learned counsel appearing on behalf of the appellant submits that the finding of guilt against the appellant for having committed offence under section 376 IPC is not sustainable. According to him, the trial court has failed to properly appreciate the evidence on record and more importantly that of the victim, P.W.7 from all possible angles. It is submitted that the evidence of P.W.7 ought not to have been believed on the score that it is the appellant who committed the rape upon her. In course of hearing, he has taken the pain to place the evidence of P.W.5 in great detail. 6. Miss. S. Ratho learned Additional Government Advocate submits all in support of the findings of the trial court. According to her, the evidence of P.W.7 has remained unshaken and the same has a ring of truth inspiring confidence. It is also submitted that no such materials surface on record to show that she and her family members had any axe to grind against the appellant, so as to even draw any remote inference to the effect of as regards the possibility of the appellant being falsely implicated in this case. 7. It is also submitted that no such materials surface on record to show that she and her family members had any axe to grind against the appellant, so as to even draw any remote inference to the effect of as regards the possibility of the appellant being falsely implicated in this case. 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. 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. 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 first carefully scrutinize the evidence of P.W.7 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.7 is a witness worthy of credence so that her testimony can be relied up for the purpose. The age of the victim has been found by the trial court to be less than sixteen years. The prosecution has proved the school admission register, Ext.4. The date of birth of P.W.7 as finds mention therein is seen to be 06.03.1993. The relevant entry has been proved and marked Ext.5. The evidence of the doctor (P.W.3) also provides support to the said age of the victim at the relevant time. Thus no fault is found with the finding of the trial court on the age of the victim. Now coming to the evidence of the victim, P.W.7 it is found that she has stated on oath that on 02.04.2016 during noon hour when she had been to ease herself in the field in her village, the appellant came from behind and gagged her mouth and then he with others caught hold of her. She has further stated that she lost her sense for that and when she regained it, she found herself in the house of maternal uncle of the appellant where she was kept confined in a room and the appellant did not allow her to go outside. It is further stated that there she was asked to wear saree and blouse etc and thereafter the appellant lifted her, made lie on the cot, undressed her and committed rape upon her. It is further stated that there she was asked to wear saree and blouse etc and thereafter the appellant lifted her, made lie on the cot, undressed her and committed rape upon her. She has further stated that being so kept confined in that room in village Sankari, the appellant again sexually assaulted her on three consecutive days. Thereafter she was taken to village Jharbandh and there from to village Paraskhol. It is her evidence that in village Paraskhol, she was kept confined in the house of one Jagadish Barik who happens to be the brother-in-law of the appellant where also the appellant sexually assaulted her and there from she was finally rescued. The victim was then reading in Class-VII and she has been put to searching cross-examination on two spells, one on behalf of the appellant and other one on behalf of the rest of the accused persons (since acquitted). It has been stated by her that the distance of her village and village Sankari is ten kilometres. She has asserted during the cross-examination to have lost sense at the time she was lifted from the village field while easing out and to have regained it later when she found herself in the house of maternal uncle of the appellant. During the cross-examination she has further narrated that all throughout she was not allowed to move out and thus had no opportunity to meet other members of the family residing in the house. Evidence of P.W.7 inspire confidence as no such material has been elicited to doubt her version and is thus found to be reliable. Her evidence derive support from the evidence of P.W.5 as also the other evidence on record that she was finally rescued from the house in the village Paraskhol. One Sunderlal Pradhan who has been examined as P.W.6 has also stated to have accompanied P.W.5 in said search operation of the victim that culminated in rescuing the victim. Her evidence derive support from the evidence of P.W.5 as also the other evidence on record that she was finally rescued from the house in the village Paraskhol. One Sunderlal Pradhan who has been examined as P.W.6 has also stated to have accompanied P.W.5 in said search operation of the victim that culminated in rescuing the victim. Cumulatively viewing the evidence on record and upon their assessment, giving anxious and thoughtful consideration, in the absence of any such material on record to suggest any reason on the part of the victim so as to falsely implicate the appellant at the cost of her chastity and dignity, the prosecution case in so far as the commission of rape upon the victim, P.W.7 by the appellant is concerned, is found to have been proved beyond the reasonable doubt. For the aforesaid discussion and reason, the finding of guilt recorded by the learned trial court against the appellant for commission of offence under section 376, I.P.C. is found to be wholly defensible and thus it receives the seal of approval. In so far as the quantum of sentence is concerned, I find the same to be just and proper and to be commensurate to the facts and circumstances of the case and thus needs no interference. Therefore, the judgment and conviction and order of sentence are hereby confirmed. 10. Resultantly, the appeal stands dismissed. LCR received be sent back forthwith along with a copy of this judgment.