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2017 DIGILAW 1054 (ORI)

Teji @ Khirasindhu Saraf 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 15.04.2013 passed by the learned Addl. Sessions Judge-Cum-Special Judge, Dharamgarh in C.T. (Special Act) No. 17/07 of 2011. By the said judgment, the appellant has been found guilty for commission of offence punishable under sections 366 and 376, I.P.C. which has been followed by the order directing the appellant to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/-in default to undergo rigorous imprisonment for six months more for offence under section 366 IPC and to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-in default to undergo rigorous for one year more for offence under section 376 IPC with the concurrent running of the substantive sentences. 2. Prosecution case in short is that on 9.11.2010 the victim, P.W. 17 aged about 15 years while going to the field was forcibly taken away by the appellant to a distant village Narla and kept in the house of one of the relations of the appellant. It is the further case of the prosecution that there the appellant committed rape upon her. After three days being kept confined in that house and being raped by the appellant, the victim was rescued by her brother and another. Thereafter she having narrated the incident before her mother (P.W.15), lodged the FIR on 15.11.2010 at Koksara Police Station. In course of investigation, victim and other witnesses were examined and the victim was sent for medical examination. Wearing apparels of the victim along with other incriminating materials were seized. Appellant was arrested and sent for medical examination. His wearing apparels etc. as well as the motor cycle used by the appellant was seized from his house. On completion of investigation, charge sheet was submitted against the appellant to face the trial for commission of offence under section 366 and 376 IPC. The case being committed to the Court of Special Judge, Bhawanipatna, the appellant faced the trial being charged for said offences. During trial, the appellant took the plea of denial. 3. Prosecution in the trial has examined altogether 18 witnesses. Out of whom P.W.17 is the victim and P.W.15, the mother of the victim is the informant. P.W. 16 is the father of P.W.17. During trial, the appellant took the plea of denial. 3. Prosecution in the trial has examined altogether 18 witnesses. Out of whom P.W.17 is the victim and P.W.15, the mother of the victim is the informant. P.W. 16 is the father of P.W.17. P.Ws.1, 2 and 7 are the constables in whose presence wearing apparels of victim and appellant along with other incriminating materials were seized. P.Ws. 3 and 4 are the co-villagers of the appellant in whose presence motor cycle was seized. P.W.5 is the scribe of the FIR whereas P.W. 6 is the Medical Officer who examined the victim on police requisition and the other Medical Officer who had examined the appellant has been examined as P.W. 12. P.W. 8, the wife of the appellant is a witness to the seizure of the motor cycle in whose zima it was left after seizure. P.W. 9 is the Headmaster-In-Charge of Ichhapur U.P. School from whose custody, the School Admission Register containing the entry relating to the admission of the victim in the said School had been seized. P.W. 11 is another such seizure witness. P.W. 9 the Revenue Inspector, has been examined to prove the Caste Certificate of the victim. P.Ws. 13 and 14 are co-villagers of the victim, who are stated to be present at the time of kidnapping. The Investigating Officer of the case has come to be examined at the end as P.W. 18. The defence case is one of denial. 4. The learned trial court formulating the points for determination, upon scrutiny of evidence on record and on evaluation thereof has held the appellant guilty of offence under section 366 and 376, I.P.C. and accordingly, the appellant has been convicted and sentenced as afore stated. 5. Mr. Aurovinda Mohanty, learned counsel appearing for the appellant submits that the finding of the trial court fastening the guilt upon the appellant for commission of offence under sections 366/376 IPC is unsustainable since it is against to the weight of evidence on record. According to him, the evidence of victim, P.W.17 ought to have been discarded simply for the reason that the manner of happening of the incident as has been described by her is highly improbable. According to him, the evidence of victim, P.W.17 ought to have been discarded simply for the reason that the manner of happening of the incident as has been described by her is highly improbable. According to him, the trial court ought not to have accepted the version of P.W.15 that she was forcibly taken in a motor cycle for such a distance which itself makes the entire prosecution case highly doubtful and unbelievable. Thus he submits that the order of conviction and sentence impugned in this appeal are liable to be set aside. 6. Ms. S. Ratho, learned Addl. Govt. Advocate submits that the evidence of P.W. 17 has been rightly found by the trial court to be having the ring of truth as there remains no other evidence available on record so as to say that either she had any reason to falsely implicate the appellant or that she has stated so as an instinct of self preservation. Therefore, she contends that the appeal is devoid of merit. 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 Vs. 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. 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 above settled principles of law in mind, let me now carefully scrutinise the evidence of P.W. 17 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. 17 is a witness worthy of credence so that her testimony can be relied upon for the purpose. Before that it may be stated here that the trial court has found the age of the victim to be more than 16 years which appears to have been so concluded taking the medical report Ext. 5 and the evidence of the parents of the victim into consideration. It may be also taken note of that it is not there in the evidence that the victim had any prior acquaintance with the appellant. 5 and the evidence of the parents of the victim into consideration. It may be also taken note of that it is not there in the evidence that the victim had any prior acquaintance with the appellant. The evidence of the victim P.W. 17 is that on the said date, she with her friends had gone to the agricultural field for reaping paddy when her mother was in the house and the appellant came and forcibly took her on a motor cycle to village Narla, kept her in the house of one of his relations and committed rape upon her without consent and against her will. She was kept there for three days and rescued by her brother and another. When they came she has also stated to have immediately told the incident to her mother. During cross-examination, it has been further elicited that the appellant sexually assaulted her thrice during her stay in the house. Although a suggestion has been given that it was a case of false implication since the appellant had demanded money from her brother, which she has denied, no such material is forthcoming on that score. The informant, P.W. 15 has stated to have lodged the FIR after hearing the incident from her daughter, P.W. 17. It is her evidence that P.W. 5 has written the FIR under her instruction. This P.W. 5 has also so deposed to have scribed the report as per the version of the informant and to have taken her thumb impression after explaining the contents of that report and getting the acknowledgement from her that her version has been truly and correctly reduced into writing. The FIR has been admitted in evidence and marked Ext. 4. P.W. 16 is the father of the victim who has stated to have been informed by P.W. 15 about the incident and their daughter, P.W. 17 was traced out at village Narla with the appellant when P.W. 17 told about the incident. No such material has been elicited from this P.W. 15, 16 and 17 so as to doubt their testimony and especially the evidence of P.W. 15 has remained unshaken on every score. No such material has been elicited from this P.W. 15, 16 and 17 so as to doubt their testimony and especially the evidence of P.W. 15 has remained unshaken on every score. There is also no material on record to even remotely suggest that all these witnesses had any axe to grind against the appellant by falsely implicating him in such an incident at the cost of chastity and dignity of P.W.17 seriously telling upon her future. On careful consideration of the evidence, let in by the prosecution and more importantly the evidence of the victim, P.W. 17 receiving further corroboration from the evidence of P.Ws. 15 and 16 with the immediate disclosure about the incident on being rescued, this Court finds no such reason and justification to differ with the finding of the trial court fastening the guilt upon the appellant for commission of offence under sections 366 and 376 IPC so as to upset the same. 9. For the aforesaid discussion and reason, the finding of guilt recorded by the learned trial court against the appellant for commission of offence under sections 366 and 376, I.P.C. is found to be wholly defensible and as such is affirmed. As regards the quantum of sentence, the same appears to be commensurate to the facts and circumstances of the case and so needs no interference. Therefore, the judgment of conviction and order of sentence impugned in this appeal are hereby confirmed. 10. Resultantly, this appeal stands dismissed. LCR received be sent back forthwith along with a copy of the judgment.