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2017 DIGILAW 1056 (ORI)

Ajaya Digal 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 26.03.2013 passed by the learned Asst. Sessions Judge, Baliguda in S.T. No.21/2012. By the said judgment, the appellant has been found guilty for commission of offence punishable under section 376, I.P.C. which has been followed by the order directing the appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.10,000/-with default stipulation to further undergo rigorous imprisonment for one year. 2. Prosecution case briefly stated is that sometime prior to 03.03.2012 the appellant somehow convinced the victim (P.W.19) for payment of a sum of Rs.200/-so that he would arrange one bank loan for her. It is the further case of the prosecution that on 03.03.2012 around 10 A.M., the appellant came to the house of the victim and intimated about the sanction of the said loan. Accordingly, the victim was asked to go with him to the Bank at K. Nuagaon. So, the victim accompanied the appellant to the Bank where the appellant gave her a paper and showing her a cheque told her that it had to be encashed in the Bank at Baliguda and then she was asked to accompany him to Baliguda. The victim believing the version of the appellant proceeded to Baliguda. On arrival there at Baliguda, the appellant asked her to sit near a cabin when the appellant went for a stroll. It is alleged that after sometime, the appellant came there, offered her a soft drink and some medicines stating that those are required to be taken so that her clear and proper photograph would be captured when it would be so taken, being the requirement. The victim accepting the version of the appellant did everything what he wanted. It is stated that thereafter instead of taking photograph or going to the Bank, the appellant told her that let them then go back home. So, they proceeded to village Jamapadar and on their way back having reached village Nuagaon when they were proceeding on foot to the village, the informant felt dizzier with severe head reeling. The appellant held her hands and took her in another route to a lonely place. It is alleged that the appellant at that place committed rape on her. So, they proceeded to village Jamapadar and on their way back having reached village Nuagaon when they were proceeding on foot to the village, the informant felt dizzier with severe head reeling. The appellant held her hands and took her in another route to a lonely place. It is alleged that the appellant at that place committed rape on her. The victim since was dizzying and having severe head reeling, she could not at all resist being not in a position to have any physical movement for intake of said medicines and as its after affect. The appellant then carrying her little away on the road, left her alone. The daughter and son of the victim (P.Ws.16 and 20) seeing their mother in that helpless condition took her to the house and there from to the hospital for treatment. After about 10 days when she returned to her normalcy, she disclosed the entire incident and the F.I.R. was lodged. This led to the registration of K.Nuagaon P.S. Case No.10 of 2012 corresponding to G.R. Case No.69 of 2012 on the file of S.D.J.M., Baliguda. Police took up investigation and finally submitted charge-sheet against the appellant to face trial in the court of law for commission of offence under section 420/328/376, I.P.C. 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, Baliguda. Charge having been framed for the said offences, the trial commenced. During trial the appellant took the plea of denial. 3. Prosecution in the trial has examined altogether 20 witnesses. Out of whom P.W.6 is the person, who had scribed the F.I.R. lodged by the victim P.W.19. P.Ws.2 and 3 are the constables, who have performed their duties as directed by the Investigating Officer whereas P.W.7 is the husband of the younger sister of the victim. P.Ws.8 and 9 are the victim’s niece; P.W. 15 is the nephew; P.W.10 is the Doctor whereas P.Ws.11,12,13 and 14 are the witnesses, who have heard the incident from P.W.7. The son of the victim-informant has been examined as P.W.16. The Investigating Officer has come to be examined as P.W.17. P.Ws.8 and 9 are the victim’s niece; P.W. 15 is the nephew; P.W.10 is the Doctor whereas P.Ws.11,12,13 and 14 are the witnesses, who have heard the incident from P.W.7. The son of the victim-informant has been examined as P.W.16. The Investigating Officer has come to be examined as P.W.17. A co-villager of the victim and a visitor to the house of the informant after she had been brought to her house from the place where she was lying unconscious after the said incident has been examined as P.W.18. The victim has been examined as P.W.19 and P.W.20 is her daughter. 4. The appellant in his defence has examined two witnesses, who are his father and wife. Prosecution besides leading the oral evidence through the lips of the above witnesses has also proved the F.I.R.(Ext.8), the seizure lists showing seizure of incriminating materials in course of investigation, medical reports etc. The learned trial court formulating the points for determination, upon scrutiny of the evidence on record and their evaluation has held the appellant guilty of offence only under section 376, I.P.C. and accordingly the appellant has been convicted and sentenced as afore-stated. 5. Mr. Sangram Keshari Rout, the learned counsel appearing on behalf of the appellant submits that the finding of guilt recorded by the trial court against the appellant holding him to have committed the offence under section 376, I.P.C. is unsustainable inasmuch as the same is against the weight of evidence on record. According to him, the prosecution in the case has not been able to establish its case beyond reasonable doubt that it is the appellant who had sexually assaulted P.W.19. He further submits that the trial court ought not to have accepted the version of the P.W.19 as gospel truth on the face of the glaring infirmities surfacing therein. It is his submission that the delay in lodging the F.I.R. ought to have been held to be the factor for casting serious doubt on the veracity of the case of the prosecution. It is his submission that the delay in lodging the F.I.R. ought to have been held to be the factor for casting serious doubt on the veracity of the case of the prosecution. He finally submits that the trial court ought to have accepted the defence version as to have been established through D.W.1 and 2 that there was every reason for the victim to falsely implicate the appellant in order to take revenge and in that light the testimony of P.W.19 insofar as it relates to the actual commission of offence of rape ought to have been held to be unreliable and unsafe to be acted upon and since said evidence has not received corroboration from the evidence of independent witnesses other than those who are the direct relations of the victim and members of the rival camp of the appellant, the prosecution case ought to have been held to have not been established beyond reasonable doubt. With the above, he urges for setting aside the judgment of conviction and the order of sentence. 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.19 has been rightly accepted by the trial court insofar as the incident is concerned and that also find corroboration from the evidence of the other witnesses. It is submitted that no such reason even too remote emanate from the evidence to say for the victim to have falsely implicated the appellant more so when the defence version presented for the purpose appears to be purely imaginary without deriving support from any documentary evidence. It is her submission that the victim has narrated the incident in detail which has not been shaken in any manner during cross-examination and even no other materials surface from evidence for pointing any finger against the evidence of P.W.19 concerning the incident and the appellant’s role. He further submits that the evidence of P.W.19 being cogent, credible and trustworthy having a ring of truth, the same, itself, is enough for fastening the guilt upon the appellant. 7. In order to address the rival submission in examining the sustainability of the finding of 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. 7. In order to address the rival submission in examining the sustainability of the finding of 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. 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. 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 now carefully first scrutinize the evidence of P.W.19 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.19 is a witness worthy of credence so that her testimony can be relied upon for the purpose. Before that, in my considered opinion, few factual aspects from the beginning are to be kept in view that here the occurrence having taken place on 03.03.2012, the F.I.R. has been lodged on 15.03.2012 after medical treatment when the victim stated to have regained normalcy; and the parties are having rural background hailing from a schedule district of the State. 9. The victim-P.W.19 is a rustic illiterate married lady having son and daughter aged about 18 and 16 years respectively. She in her inimitable style has stated that one day a month prior to the incident, the appellant had approached her to avail a loan from the Bank and demanded a sum of Rs.200/-for the purpose which she gave and then after noting down something on a paper, the appellant left. On the date of incident, he took her to K.Nuagaon Bank and after sometime he came out of the Bank with a paper and said that they would go to Baliguda to encash the cheque, being asked the victim accompanied. There at Baliguda the victim was asked to sit near a cabin and the appellant sometime thereafter came with the soft drink and some tablets. She has further deposed that the appellant told her to take those so that she would have proper blood circulation, and the photograph that would be captured would be in proper order which is required for the purpose of clearance of loan. She states that when she consumed those tablets, as directed by the appellant, then the appellant told that let them go back home and accordingly they left. She states that when she consumed those tablets, as directed by the appellant, then the appellant told that let them go back home and accordingly they left. It is her further version that when on the way she felt severe head reeling and could not walk, she had to sit down underneath a mango tree and then the appellant taking advantage of her physical disability on account of intake of the soft drink and tablets, which the appellant had offered, the appellant sexually assaulted her and finally thereafter taking away for some distance left her alone. It is further stated that her son sometime thereafter saw her and she with her daughter (P.W.20) took her to the house. On the next date, P.W.20 and other villagers took her to K.Nuagaon for her treatment which continued 4 to 5 days and after 10 to 11 days on her recovery from illness, she lodged the F.I.R. (Ext.8) being scribed by such P.W. 6 under her instruction. A close and careful reading being given, it is seen that, no such material surface either in their evidence or the F.I.R. to entertain any doubt in the mind with regard to her version as to commission of rape by the appellant. Nothing has been unearthed during cross-examination to discredit victim’s version. P.W.6 has clearly stated to have written the F.I.R. as instructed by the P.W.19. Admittedly, none others were available at the scene of the incident nor any such evidence is forthcoming to show that there was the possibility of anyone else to be there near about the place so that his/her evidence could have thrown light on the happening of the incident and thus for their non-examination, there would have been the drawl of adverse inference so as to entertain doubt on the veracity of the prosecution case. P.Ws.8 and 9 who are closely related to the P.W.19 have stated that the victim had narrated the incident to them in detail and that has also been the evidence of P.Ws.12,13 and 14. The evidence on record is there that the victim P.W.19 on the next day of the incident was taken to the hospital for the treatment and only when she regained normal state of health and mind, she lodged the F.I.R. All other witnesses have stated that the victim during the period was not in proper state of health and mind. The evidence on record is there that the victim P.W.19 on the next day of the incident was taken to the hospital for the treatment and only when she regained normal state of health and mind, she lodged the F.I.R. All other witnesses have stated that the victim during the period was not in proper state of health and mind. P.W. 18 has stated that on her asking, the victim had narrated the incident. The above witnesses in one way or other being related to the victim, it is but natural on their part to ask the victim about her physical condition when they saw her in that state. It is not a case where the victim can be said to have remained mum for no reason for a long length of time and on a fine morning had gone to lodge the F.I.R. The evidence on record clearly provides the explanation for such delay in lodging the F.I.R. and the same is acceptable. When the specific defence is that the victim and others had once attacked the appellant and his other family members in their house and a criminal case for the same was instituted against them, no such document has been proved in support of said plea in order to show that there was some animosity. Had it been so, the Court would have bestowed its attention in a suspicious way as to how in view of such strained relationship, P.W.19 had accompanied the appellant believing the words of the appellant. Rather, in the case, the evidence of P.W.19 inspires confidence that in view of assurance given by the appellant, she had gone with him to the Bank. 10. On carefully going through the evidence, this Court is also unable to search out any such feature therein to draw a remote inference as to any reason for P.W.19 to falsely implicate the appellant in such an incident at the cost of her own chastity and dignity and inviting stigma thereupon for herself as well as other members of the family. The evidence is not found to be having any inherent infirmity nor any such improbability surfaces there from. The evidence is not found to be having any inherent infirmity nor any such improbability surfaces there from. In this background, when the victim having no axe to grind against the appellant, has deposed to have been raped by the appellant, there is no reason to view her evidence with suspicion and the delayed disclosure by her before others and the delay in lodging the F.I.R. under the circumstance is found to be hardly of any significance to carry any adverse impact. Her evidence is found to be unimpeachable and creates confidence in mind leaving no room for being viewed as suspect. 10. For the aforesaid discussion and reasons, 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 the same is hereby 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. The impugned judgment of conviction and order of sentence are hereby confirmed. 11. Resultantly, this appeal stands dismissed. L.C.R. received be sent back forthwith along with the copy of the judgment.