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2019 DIGILAW 127 (ORI)

Dharmananda Pradhan v. State of Odisha

2019-02-14

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The petitioner by filing this revision has assailed the judgment dated 28.01.2000 passed by the learned Addl. Sessions Judge, Nayagarh in Crl. Appeal No. 245/88 of 1997/96 confirming the judgment of conviction and order of sentence dated 14.11.1996 passed by the learned Asst. Sessions Judge-cum-C.J.M. Nayagarh in S.T. Case No. 18/121 of 1996. 1.1 The petitioner having been convicted by the Trial Court for offence under Section 376 IPC and sentenced to undergo rigorous imprisonment for a period of seven years with payment of fine of Rs. 1,000/- in default to undergo rigorous imprisonment for three months had preferred the appeal which has been dismissed. 2. The prosecution case in brief is that the victim (PW-3) then age about 15 years, during one evening in the month of Jyestha in the year 1995 while returning home purchasing tobaco for her father (PW-1) was restrained by the accused who then lifted her to his "Dhenkanal" near the house and fulfiled his sexual lust by forcibly having sexual intercourse. It is stated that when the victim attempted to raise hulla on being lifted, the accused closed her mouth by putting his hand by force. It is stated that thereafter, the victim was allured by the accused for her marriage with him and with that promise continued to have sexual relationship with her. It is the further case of the prosecution that both the accused and the informant having continued with such relationship, the victim became pregnant and as advised by the accused, she did not disclose these incidents before anybody. The mother of the victim (PW-2), one day during the sixth month of pregnancy noticing such some symptoms when questioned the victim; all these happenings came to light being so disclosed by the victim. It is further stated that the victim thereafter when went to the house of the accused to stay with him as his wife, the accused drove her out. So a village meeting was convened where the accused refuted the allegations. However, the villagers decided that the accused should accept the victim. The accused then fled away by giving threat. Later on, the informant convened another meeting which was attended by both the parties. But that attempt to resolve proved to be an exercise in futility. So a village meeting was convened where the accused refuted the allegations. However, the villagers decided that the accused should accept the victim. The accused then fled away by giving threat. Later on, the informant convened another meeting which was attended by both the parties. But that attempt to resolve proved to be an exercise in futility. So ultimately the FIR was lodged at Daspalla Police Station on 11.10.1995 leading to the registration of the case. The Investigating Officer on completion of investigation submitted the charge sheet, placing the accused for trial for commission of offence under Section 376 IPC. 3. The accused took the plea denial in the said trial. 4. During trial, the prosecution examined nine witnesses and proved the FIR marked Ext.5, medical examination report of the victim Ext.1 and other documents. The Trial Court on analysis of evidence, both oral and documentary found the prosecution to have established the charge under Section 376 IPC against the accused beyond reasonable doubt and accordingly, the accused being convicted for the said offence was sentenced as aforesaid. The appeal filed by the accused did not yield any fruitful result. Hence the revision. 5. Learned counsel for the petitioner (accused) submits that the findings of the Courts below that the accused has committed the offence under Section 376 IPC is the outcome of perverse appreciation of evidence and as such are untenable. In this connection, he has invited the attention of this Court to the evidence of the victim PW-3 as also her mother PW-2. It is submitted that the Courts below have mainly been swayed away by the evidence that the victim was found to be pregnant at the relevant time and for that reason, even in the absence of clear, cogent and acceptable evidence on record to established that the accused is the author of and solely responsible for such pregnancy, having gone for sexual intercourse repeatedly, has held his complicity therein. He therefore, urges for setting aside the judgment of conviction and sentence rendered by the Courts below. 6. Learned counsel for the State submits all in support of the findings recorded by the Courts below. According to him, the evidence of PWs. He therefore, urges for setting aside the judgment of conviction and sentence rendered by the Courts below. 6. Learned counsel for the State submits all in support of the findings recorded by the Courts below. According to him, the evidence of PWs. 3, 4 and 5 being read simultaneously, the findings returned by the Courts below as regards the establishment of the charge under Section 376 IPC against the accused clearly stand for more above the criticism that it is outcome of perverse appreciation of evidence. He therefore submits that such well reasoned findings given by the Courts below upon detail discussion of evidence on record are not liable to be set at naught in exercise of the revisional jurisdiction as no such glaring infirmity is noticed in that exercise. 7. Keeping in mind the rival submission, let us now proceed to have a glance at evidence on record. 8. The victim girl has been examined as PW-3 and her father and mother have been examined as PWs. 4 and 2 respectively. It has been brought out in the evidence that the victim an illiterate. She has stated her age to be 15 years. The victim and the accused hail from the same village. It has been deposed by the victim that one day when she was returning home with tobacco for her father, it is the accused who lifted her to is DHINKISALA and forcibly committed sexual intercourse. It has been further stated that though she tried to raise hullah, her attempt in that direction did not succeed as the accused closed her mouth by forcibly putting his hand. She has further stated that after that incident, the accused allured that he would marry her and having promised so asked her that this incident be not disclosed to anyone. She has further stated that thereafter the accused went on telling her to be his wife and pretended all along to be her husband. The victim has further deposed that in this way, the accused continued to keep the sexual relationship with her. The dispute arose when she having conceived, in the six months of her pregnancy was asked by her mother about that noticing some symptoms in that light. This version PW-3 finds support from the evidence of her mother PW-2 as well as her father PW-4. The dispute arose when she having conceived, in the six months of her pregnancy was asked by her mother about that noticing some symptoms in that light. This version PW-3 finds support from the evidence of her mother PW-2 as well as her father PW-4. The doctor PW-5 has found the victim to be having pregnancy of 24 weeks old at the time of examination. The Courts below have accepted the evidence of the victim that after the first incident when the accused forcibly committed sexual intercourse with her, she did not disclose the same before others because of the promise given by the accused that he would marry and accept her as his wife. The explanation as to the delayed disclosure has been found to be acceptable. The Courts below on analysis of evidence of the victim, her parents and the doctor have gone to hold that the victim then was below 16 years of age. Having so held, the consent even if any, is said to be of no significance. Moreover, it appears from the evidence of the victim that after the first incident, the accused continued to have sexual intercourse with her on the basis of the promise that he would marry and stay as husband and wife, which has later on been found to be false. In view of that, the consent of the victim who has given birth to a female child even if so, has to be termed to be a snatched one and founded upon false promise. Above being the evidence on record, this Court is not in a position to say that the findings arrived at by the Trial Court as confirmed by the lower Appellate Court, fastening guilt upon the accused-petitioner for offence under Section 376 IPC are the result of perverse appreciation of evidence. 9. For the aforesaid discussion and reason, no such infirmity of fault is found with the judgment passed by the Courts below warranting interference in exercise of revisional jurisdiction of this Court. 10. In the result, the revision stands dismissed.