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2019 DIGILAW 192 (ORI)

Mandhar Sahu v. State Of Orissa

2019-03-07

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner, in this revision, has assailed the judgment dated 12.1.2018 passed by the learned Sessions Judge-cum-Special Judge (Vigilance), Bhawanipatna, Kalahandi in Criminal Appeal No. 19/17 of 2013-17 confirming the judgment of conviction and order of sentence dated 3.12.2013 passed by the learned Assistant Sessions Judge (Special Track Court), Kalahandi, Bhawanipatna in C.T. (Sessions Case) No.91/1 of 201213. The petitioner has been convicted for offence under Section 376 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for six months with further direction as to the payment of compensation to the victim under the "Odisha Victim Compensation (Amendment) Scheme, 2012 put in place pursuant to the provision of Section 357-A of the Code of Criminal Procedure. 2. The prosecution case, in brief, is that the victim, P.W. 15 aged about 14 years was dragged by the accused from near the place where a tube-well had been fixed when the victim had gone there to fetch water. It is stated that the victim was dragged to the house of one Udhab Patel and there, in a room of that house, the accused committed rape on her without her consent. It is the further case of the prosecution that the victim thereafter was taken by the accused to the nearby jungle and kept there and it is only around 3.00 p.m. that he brought her to the village and leaving her near the house of one Manu Patel, fled away. The victim having reported the matter to her mother (P.W.5), on the next day, the FIR (Ext.9) has been lodged. 3. Pursuant to the same, Bhawanipatna Sadar P.S. Case No.166 of 2012 having been registered, in course of investigation, the victim was examined by the Investigating Officer and sent for medical examination by the doctor. Other incriminating articles have been seized as also the accused being apprehended and medically examined, finally charge sheet was placed. 4. The case then being committed to the court of Sessions, the accused faced the trial for the offence under section 366/376 of the IPC. Having been convicted and sentenced by the Trial Court, as aforesaid and being aggrieved, thereby the accused had preferred the appeal, which has also failed. Hence, the revision. 5. 4. The case then being committed to the court of Sessions, the accused faced the trial for the offence under section 366/376 of the IPC. Having been convicted and sentenced by the Trial Court, as aforesaid and being aggrieved, thereby the accused had preferred the appeal, which has also failed. Hence, the revision. 5. Prosecution has examined in total 19 witnesses besides proving a number of documents such as FIR (Ext.9), medical reports of the victim as well as accused, seizure lists as to the seizure of incriminating materials etc. The accused, having been taken the plea of denial and false implication, has tendered no evidence. 6. The trial Court upon examination of the evidence both oral documentary has found that the prosecution has proved its case against the accused to the hilt and recorded the finding that the accused has committed the offence under Section 376 IPC and convicted the accused followed by imposition of sentence, as above. 7. Learned counsel for the petitioner (accused) submitted that here the finding of the trial court as to the age of the victim (p.W. 15) is not at all based on just and proper appreciation of evidence. According to him, the evidence on record does not justify a finding that the victim was under sixteen years of age at the time of the incident. He, therefore, submitted that with a finding that she is more than sixteen years of age, at the time of the incident, if her evidence is plainly gone through, the case can be said to be one of consensual sex and not rape or ravishment. It was also his submission that the testimony of the victim, P.W. 15, when is tested in the touchstone of the settled principle of laws holding the field, a finding that it is the accused who had forcibly committed sexual intercourse upon the victim is not at all recordable and she cannot be termed to be a trustworthy witness so as to inspire confidence in the mind of the court to act upon her evidence without demanding or insisting any corroboration from other sources. 8. 8. He, therefore, submitted that the courts below, in the case, clearly appears have been swayed away simply keeping in view the nature and gravity of only the offence and not the offence as alleged to have been committed; forgetting for a moment that in a trial proceeding against an accused, the whole purpose is to find out the complicity of the said accused for the commission of offence for which he has been charged and the seriousness of the offence comes for consideration thereafter. It was his further submission that the finding of the trial court has been confirmed by the lower appellate court, without any such independent analysis of the evidence as its level and without keeping in view the settled position of law and the appeal has been disposed of. According to him, there has been failure on the part of the lower appellate Court to churn the evidence on record afresh and then judge the sustainability of the finding of the trial court in saying as to whether it is also of the same view. 9. He, therefore, submitted that the ultimate decision of the courts below suffers from vice of perversity as the crucial finding has come out of perverse appreciation of evidence without being alive to the settled position of law holding the field. Learned counsel for the State submitted that the finding of the trial court as to the complicity of the accused is based on sound appreciation of the evidence in the backdrop of the principles of law holding the field in that regard. He further submitted that the victim having rightly been held to be an under sixteen year old girl, and the sexual intercourse by the accused being proved, the conviction is wholly in order. 10. In order to appreciate the rival submission in proceeding to judge the legality and propriety of the findings which are assailed in this revision, let us first, look at the evidence on record with regard to the age of the victim, P.W. 15. The victim, being examined during trial on 20.3.2013 has deposed her age to be fourteen years whereas the court has made the assessment of her age as fifteen years. The victim, being examined during trial on 20.3.2013 has deposed her age to be fourteen years whereas the court has made the assessment of her age as fifteen years. Father of the victim being examined as P.W. 1, has stated during his examination-in-chief that her daughter's age at the time of the incident was fifteen years whereas as per the deposition of the mother, P.W. 5, her daughter then was fourteen years old. The headmaster of the school where the victim has taken admission having been examined as P.W. 19, with reference to the admission register (Ext.17), he has deposed that the victim's date of birth finds mention therein as 20.05.1998 vide relevant entry under Ext. 17/1. Simply by going to compute the age of the victim as on the date of the incident from the entry in the school admission register, it comes to fourteen years plus. However, interestingly there stands an impediment to accept the said date of birth as per the entry, Ext. 17/1, so as to determine the age of the victim taking it as conclusive and that is borne out from the evidence of P.W. 10 and 16 who are the other teachers of the same school, who have stated to have no knowledge as to whether any birth certificate of the victim had been produced at the time of admission or it was with reference to any such document. None have stated that the exact date of birth of the victim as has been put in the school admission register, if was, as per the version of the victimf's father or with reference to any other document as produced by him. Admittedly, the birth certificate of the victim, P.W. 15 has not been proved. However, important is the statement of P.W. 1 as elicited during cross-examination which is to the effect that he had got married at his age of twenty-one years and the victim was born six years thereafter. Accepting said evidence, taking the age of the father of the victim, P.W. 12, as on the date of examination during trial, as the fixed point, backward calculation being made in ascertaining the year of birth of the victim being so found out, it comes to nineteen year plus. Accepting said evidence, taking the age of the father of the victim, P.W. 12, as on the date of examination during trial, as the fixed point, backward calculation being made in ascertaining the year of birth of the victim being so found out, it comes to nineteen year plus. This being the oral testimony of the Father, now the evidence of the doctor (P. W. 11), who has conducted the ossification test for determination of the age of the victim needs to be simultaneously taken note of. It has been stated by P.W. 11 that in the test, the result has remained that the victim as on the date of examination, i.e. 14.7.2012, was of the age group of sixteen to seventeen years vide Ext. 4 with the margin of two years on either side of which judicial notice can be taken. 11. The above being the state of affair, in the evidence piloted by the prosecution with regard to the age of the victim, the findings of the courts below that the victim, P.W. 15 as on the date of incident was below sixteen years of age stands as the outcome of perverse appreciation of evidence. The age of the victim, P.W. 15, on the basis of the evidence let in, has to be found out to be more than sixteen years. 12. Having lent anxious consideration to the materials on record as well as competing submission based thereon and regard being had to the charge levelled against the petitioner, the fulcrum of the prosecution case logically is the testimony of the victim. It is thus undenied that the credibility and trustworthiness of the victim's version is the decisive factor in adjudging the complicity of the accused. 13. It has been held in the case of Raju and others vs. State of U.P., (2008) 15 SCC 133 that the evidence of the prosecutrix in case of rape is to be construed to be that of an injured witness so much so that no corroboration is necessary. It has, however, been held that the accused must be protected against the possibility of false implication. It has been underlined that the testimony of the victim in such cases though commands great weight but the same cannot necessarily be universally and mechanically accepted to be free in all circumstances from the embellishment and exaggeration. It has, however, been held that the accused must be protected against the possibility of false implication. It has been underlined that the testimony of the victim in such cases though commands great weight but the same cannot necessarily be universally and mechanically accepted to be free in all circumstances from the embellishment and exaggeration. The presumption even contemplated in Section 114A of the Evidence Act is restricted on its application compared to the scope and ambit of the presumption under Section 113A and 113B of the Evidence Act. Although the statement of the victim is required to be examined as like an injured witness whose presence at the spot is probable but it can never be presumed that her statement would should always without exception be taken as gospel truth. The essence of the said verdict which as stood the test of time proclaims that though generally the testimony of the victim rape ought to be accepted as true and unblemished, it would be still the subject of judicial scrutiny, lest a casual, routine and automatic acceptance thereof results unwarranted conviction of the person charged. 14. To begin with, the evidence of the victim, i.e. P.W. 15 who happens to be the star witness for the prosecution and upon whose testimony the courts below have gone to the base the finding of guilt, being carefully read, it is seen that the accused is their front door neighbour. Obviously, they had acquaintance since their childhood days. The victim, at the time, was a wage earner working in a poultry farm in their village It has been stated that on the relevant date, she had gone to work in the farm and there the accused came and persuaded her to marry. It is not stated by her as to what further discussion took place and whether she had then expressed any view of her own or not before the accused. This is the first incident on that day as has been stated by P.W. 15. Next incident of the date, as per her evidence is that the accused had gone to her house around 8.00 a.m. when she was alone and preparing food. He then asked her to go with him to which she protested. This is the first incident on that day as has been stated by P.W. 15. Next incident of the date, as per her evidence is that the accused had gone to her house around 8.00 a.m. when she was alone and preparing food. He then asked her to go with him to which she protested. However, she is not attributing any such overt act then to the accused either when he met her in the poultry farm where she had been to work in the early morning of the day on in the house in the morning hours of the day or that date when the incident for which the case got initiated. It is than stated that when she had been to the tube-well situated nearby for fetching water, the accused arrived there, dragged her towards the house of one Udaba Patel where Udhaba's wife was present. 15. It is further stated that the accused then took her to a room and forcibly committed rape on her without her consent. This wife of Udhaba has not come to the witness box although, through her evidence, it would have at least come to light as regards the conduct and role of the accused as also that of the P.W. 15 then whether it is she who followed or was forcibly taken and if so, how and in which manner. In my considered view, for nonexamination of that wife of Udhaba whose name is divulged by none other than the victim that she had seen the accused taking her to that house and then to the room, adverse inference is bound to be drawn against the case of the prosecution that she was taken by dragging and the prosecution is to share the blame for said non-examination. It is further stated that she was taken to a jungle then and kept there for quite some time and it was around 3.00 p.m., she was brought and left near the house of one Manu Patel when it was raining. It is also her evidence that wife of Manu Patel seeing her in a drenched condition, called her to her house and there from Manu Patel and others coming to her rescue left her in the house. The victim es oral version has been reduced into writing by one scribe named Barik was presented at the police station and treated as FIR (Ext.8). The victim es oral version has been reduced into writing by one scribe named Barik was presented at the police station and treated as FIR (Ext.8). The narration therein is to the effect that on the relevant date and time, the accused saying trie victim that he would marry her, took her to the nearby jungle, raped her there and finally left her in the house of one of her relations around 9.00 p.m. The time when she was taken by the accused is said to be around 5.00 p.m. So, the incident right from the time of taking the victim to the jungle till the end is said to have stretched nearly over a period of about four hours. 16. Admittedly, no such bodily injury has been noticed with the victim and the evidence of the doctor, P.W. 11 is one the score that she had noticed no such bodily injury on the victim when she was examined on 14.7.2012 and that he did not notice any such feature suggestive of sexual intercourse by applying force. Now, when in her evidence in court, she has gone to narrate two prior incidents preceding the main incident, the FIR is totally silent on that score. The scribe of the FIR, Ext.8, has not been examined nor there remains any endorsement of the scribe at the foot of the FIR. The version in the FIR is also not on the score that the accused applied any force to take her inside the jungle whereas during evidence, it has been stated that she was dragged by the accused to the house of Udhaba Patel where she was first raped and then taken towards the jungle. Such discrepancy goes to the root as regards of the incident. The FIR version is of course on the score that the accused had proposed that he would be marrying her and then took her inside the jungle. 17. This part is suppressed that before taking to jungle, the accused had said that he would marry the victim. No other evidence is there that the accused was seen dragging the victim from the village to the jungle and then also on the own saying of the victim, it is not clear as to wherefrom she was taken to the jungle whether it is the very house of Udhaba or it is from somewhere else. No other evidence is there that the accused was seen dragging the victim from the village to the jungle and then also on the own saying of the victim, it is not clear as to wherefrom she was taken to the jungle whether it is the very house of Udhaba or it is from somewhere else. Rather, it is her evidence that before even proceeding to jungle, the accused had committed sexual intercourse in the house of Udhaba in a room when they are going to that house is not stated by Udhaba's wife whose presence at the time is stated by none other than the victim, P.W. 15. Thus, there appears inconsistencies in FIR version as also the evidence of P.W. 15. There also remains no such explanation as to the absence of those material facts so deeply connected and associated in the happening of the incident, which have been deposed to by the victim in the trial for being not so indicated in the FIR. The non-examination of the scribe of that FIR under circumstance is of significance inasmuch as in such state of things, it is not possible to say as to if the victim's true version was reduced into writing. 18. At this juncture, it is profitable to place on record as to what have been stated by the Hon'ble Apex Court in a recent decision in the case of Dr. Dhruvaram Muralidhar Sonar vs. State of Maharashtra and others, AIR 2013 SC 327 . Paragraphs 14 and 15 of the said judgment reads as under: "14. Section 376 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable to consenting but the act is done against her will and the second where it is done without her consent, the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. 15. Section 90 of the IPC defines "consent" known to be given under fear or misconception :- "Section 90 : Consent known to be given under fear or misconception -A consent is not such a consent as it intended by any section of this Code. If the consent is given by a person under fear or injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception." Thus, Section 90 though does not define "consenth", but describes what is not "consenth". Consent may be express or implied, coerced or misguided, obtained willingly or though deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise off intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances". 19. The evidence, as has been discussed in the foregoing paragraphs being made to pass through the all those probability tests keeping the aforesaid principles, given in the decision (supra), this Court finds that there was intimacy between the accused and the victim to the knowledge of the parents and others of the village and as such prior relationship is not ruled out. P.W.1, the father of the victim has not heard about the incident from the victim, P.W. 15. He was told so only by his wife P.W. 5. P.W.2, a co-villagers, simply has stated that the victim when was found on being asked told that accused had taken her from their house and nothing else. P.W.1, the father of the victim has not heard about the incident from the victim, P.W. 15. He was told so only by his wife P.W. 5. P.W.2, a co-villagers, simply has stated that the victim when was found on being asked told that accused had taken her from their house and nothing else. Important is the evidence of P.W. 3 who has stated to have seen accused and victim talking with each other and then entering the house. P.W. 5, the mother of the victim has stated about tracing the victim, P.W. 15'in a completely different fashion. P.W. 8 has stated that victim told that she was taken away by the accused in order to marry and committed rape. The victim, P.W. 15 has stated during cross-examination to have not told anything to Bhudeb (P.W.2), Manu, Satya and Krushna regarding the incident. None have stated to have been seen the accused taking the victim to the jungle by applying any such force whatsoever. 20. In that view of the matter, the evidence on record does not lead to conclude that the accused had the sexual intercourse with the victim, P.W. 15 against her will. The prosecution case, when judged on the touchstone of the totality of the facts and circumstances does not lead to generate the unqualified and unreserved satisfaction indispensably required to record a finding of guilt against the accused. Keeping in view the fact that the victim has read in the school as also her age in the facts and surrounding circumstances, which emanate from the evidence on record, that the victim had a conscious decision after active application of mind to the things that had happened is not ruled out. 21. Therefore, the findings of the courts below in holding the accused guilty, in my estimate are, by ignoring the irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case as laid as unworthy of credit. Accordingly, the finding of the guilt against the accused for commission of offence under Section 376, IPC, which is an in sever able component of the string of the offence alleged against him, is liable to be set aside. In the wake of aforesaid, the judgments of conviction and order conviction dated 3.12.2013 passed by the trial Court, which have been confirmed by the appellate court by its judgment dated 12.01.2018 are hereby set aside. Resultant, the CRLREV is allowed. In the wake of aforesaid, the judgments of conviction and order conviction dated 3.12.2013 passed by the trial Court, which have been confirmed by the appellate court by its judgment dated 12.01.2018 are hereby set aside. Resultant, the CRLREV is allowed. The accused, if is in custody, be set at liberty forthwith in case his detention is not so required in any other case.