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2019 DIGILAW 195 (ORI)

Suleman Nag v. State Of Orissa

2019-03-07

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner, in this revision, has assailed the judgment dated 21.03.2005 passed by the learned Adhoc Additional Sessions Judge, Jeypore in Criminal Appeal No. 39 of 2003. By that, the judgment of conviction of the petitioner for offence under section 376, I.P C. and order of sentence to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 20,000/- in default to undergo further R.I. for a period of six months passed by the learned Assistant Sessions Judge, Koraput in S T. No. 41 of 2001 have been confirmed. 2. The prosecution case, in short, is that the victim being a divorcee was living with her parents in village Chaugaon located in the out-skirt of industrial township of Damanjodi. The accused being an employee of the NALCO at Damanjodi was residing in the township. They being Christians, the accused was in visiting terms to the house of the victim. 3. It is stated that on 22.08.2000 around 5.00 P.M., when accused coming to the house of the victim, ascertained the absence of the parents of the victim in the house and asked the victim to give a cup of tea. It is stated that sometime thereafter, be embarrassed and kissed the victim. The next allegation is that the accused took her to the bed room allured her with the promise of marriage and fulfilled his sexual lust and desire by going for sexual intercourse. It is stated that the victim surrendered at the end to have the sexual relationship at that moment believing the words of the accused that he would marry. The accused thereafter when left the house also assured the victim to fix the marriage early. 4. However, the victim having lost control started crying which attracted the attraction of the parents when they arrived at home. The victim then narrated the incident before them and on the next morning, they all went to the house of the accused with some local gentries. The accused then assured to marry the victim within fifteen days and requested them not to lodge any report before the police. However, later when the accused resiled from his promise, F.I.R. was lodged at the police station on 25.09.2000 and then there being no action from the side of the police, a complaint was lodged in the Court of the learned S.D.J.M., Koraput. However, later when the accused resiled from his promise, F.I.R. was lodged at the police station on 25.09.2000 and then there being no action from the side of the police, a complaint was lodged in the Court of the learned S.D.J.M., Koraput. The same being forwarded to the police under section 156(3), Cr.P.C., 1973 it was registered and finally on completion of investigation, charge-sheet was laid against the accused. The accused took the defence of denial and false implication that it was to fulfill the desire of the victim in marrying him. 5. In the trial prosecution examined nine witnesses whereas the defence examined three. From the side of the prosecution besides other documents, the plain paper F.I.R. (Ext.2), formal F.I.R. (Ext.2/4) and more importantly an agreement dated 23.08.2000 (Ext.1) have been proved. The accused on the other hand has proved the entry in one admission register as Ext. C and holiday list Ext. B. 6. The trial Court upon analysis of evidence on record has accepted the version of the victim and keeping in view the surrounding circumstances which have emanated from the evidence of other witnesses has held the prosecution to have established its case against the accused for commission of offence under section 376, I .P.C. and accordingly he has been convicted and sentenced as aforesaid. 7. The lower appellate Court having been moved, as it appears, has also gone for analysis of evidence at its level. However, in the ultimatum the finding of the trial Court has been confirmed, consequentially leading to the confirmation of judgment of conviction and order of sentence as recorded by the trial Court. 8. Learned counsel for the petitioner (accused) submits that the finding of the trial Court based upon the testimony of the victim-P.W.1 is unsustainable. According to him, the testimony of P.W.1 when is tested in the touchstone of the settled principle of law holding the field, the finding that it is the accused who has forcibly committed sexual intercourse upon the victim is not at all record able as she cannot be termed to be a trustworthy witnesses so as to inspire confidence in the mind of the Court to act upon her evidence without demanding or insisting any corroboration on material particulars from other sources. He, therefore, submits 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 next. 9. It is 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. He further submits that in the totality of the facts and circumstances of the case as those emanate from the evidence on record, it is a clear case of consensual sex and not rape. 10. He, therefore, submits 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. 11. Learned counsel for the State submits 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. According to him, the victim's evidence being wholly trustworthy without any inherent improbability, the Courts below have rightly held the accused guilty of commission of offence under section 376 IPC. 12. In order to appreciate the rival submission in proceeding to judge the legality and propriety of the finding which are assailed in this revision, let us first look into the evidence of P.W. 1. She has stated that on 22.08.2000 around 5 P.M. when she was at home, the accused came and enquired about the availability of her parents. 12. In order to appreciate the rival submission in proceeding to judge the legality and propriety of the finding which are assailed in this revision, let us first look into the evidence of P.W. 1. She has stated that on 22.08.2000 around 5 P.M. when she was at home, the accused came and enquired about the availability of her parents. It is stated that at that time her parents had gone to work in their agricultural field and her brothers had not returned from the school when her sister was engaged in outdoor game. She has stated that at that time there was drizzling and accused coming to know that none except the victim is there in the house asked her to give a cup of tea and then entering into the kitchen where the victim had gone to prepare tea as requested by the accused, caught-hold of her hands, put of the gas stove. He has then stated to have been lifted by the accused to the bed-room by gagging and there she was placed on the cot and in view of the resistance when she fell on the floor, the accused rolled up her wearing apparels and committed sexual intercourse for two to three minutes and then left their house after sometime. 13. It is stated that when she started weeping, accused assured her to marry within four days and requested her not to divulge the incident before anybody. She has further stated that despite such promise, she could not remain silent and disclosed the incident to her. So on the next morning they had gone to the house of the accused and found him absent. In the night when they went to the house of the accused, he assured to go for the marriage within a fortnight and in that context an agreement, Ext. 1 came into being. However, as after fifteen days, the accused did not come forward to fulfill his part under that agreement, the parents of the victim approached the police and then in view of the inaction of the police, the complaint was lodged. 14. Having lent anxious consideration to the materials on record as well as competing submission based thereon and regard being had to the charge leveled against the petitioner, the fulcrum of the prosecution case logically is the testimony of the victim. 14. Having lent anxious consideration to the materials on record as well as competing submission based thereon and regard being had to the charge leveled 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. 15. 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. 16. 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 should always without exception, be taken as gospel truth. The essence of the said verdict which has stood the test of time proclaims that though generally the testimony of the victim of 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 17. 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 375 defines the offence of rape and enumerates six descriptions of the offence. 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 375 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 of 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. "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. 18. 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 of 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 "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through 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 of 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. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances." 19. Adverting to the complaint, which has been treated as FIR proved through the victim (P.W.1) and marked Ext.2, being admitted in evidence as Ext. 2/1, it is seen that nothing has been mentioned therein that the accused, arriving at the house, had asked for a cup of tea. It has been stated that the accused, on arrival in course of discussion, entered into kitchen and caught-hold the victim which clearly means that the victim was already then in the kitchen It is next stated that he accused then caught-hold of the victim and putting his hand in the mouth, kissed her. P.W.1, in her evidence, has not breathed a word as to kissing. 20. It has again been stated in Ext.2 that when the victim wanted to separate herself, the accused forcibly took her to the bedroom and threatened her with dire consequence. The evidence of the victim is completely different and appears to be irreconcilable. When she has said that the accused lifted her to the bedroom, gagged her mouth and forcibly laid her at the cot which being resisted, she received a fall on the floor and then when she was lying on the floor, accused rolled her wearing apparels and had sexual intercourse the narration in Ext, 2 is that the accused after embarrassing the victim told her that he will marry her and then the victim tried to convince that if he would be marrying, there would be no problem. It is stated that the accused then declined. The next version in Ext. 2 is that the accused told her that if she will not allow to have sexual intercourse, then she would lend in serious difficulty for which this P.W.1 surrendered. At this juncture, just a glance being given at the evidence, it is seen that the defence has brought out series of contradictions all of which are not liable to be brushed aside saying as minor having no such impact. P.W. 1 has been examined in course of investigation and her statement was recorded under section 161 Cr.P.C., 1973 It had not been earlier stated by her that while she was in the kitchen, the accused came, embarrassed her and put of the gas stove which she is now stating in her evidence. P.W. 1 has been examined in course of investigation and her statement was recorded under section 161 Cr.P.C., 1973 It had not been earlier stated by her that while she was in the kitchen, the accused came, embarrassed her and put of the gas stove which she is now stating in her evidence. 21. It had also not been stated that she has physically lifted to the bedroom by gagging and that she had resisted and received a fall and thereafter the sexual intercourse took place. This is in consonance with the narration in the complaint, Ext. 2 whereas now there is significant development during evidence as to that vital part of the incident. It was, however, in the statement during investigation that the accused used to visit their house twice or thrice in a week and was assuring her for marriage. It has also been stated by her at the first instance that during illness, on some occasion, she has stayed in the house of the accused at Nalco Colony for undergoing medical treatment. So not only that there arises serious discrepancy with regard to the happening of the incident but also contradictions and material omission amounting to contradiction which are not so minor as to be whisked away. All these, in my humble view, when considered in their proper prospective keeping in view the age of the parties, the possibility of consensual sex as is agreed by the learned counsel for the petitioner is not altogether ruled out. The victim having stated in her statement during investigation that she told the accused that in case she would be marrying, there was no force, the same rather probablies a case of voluntary participation after exercise of intelligence based on the knowledge of the significance and moral quality of the act as also after having fully exercised choice between the resistance and assent. 22. The agreement which has been much relied upon by the Courts below rather probablies the above theory wherein it has simply been written that there was a dispute between the parties concerning marriage and that the marriage would be performed within fifteen days from that day of execution of the agreement. This can never be taken as an admission on the part of the accused to have committed sexual intercourse against the will and desire of the victim. This can never be taken as an admission on the part of the accused to have committed sexual intercourse against the will and desire of the victim. Moreso, there is absolutely no whisper as to the incident of forcible sexual intercourse upon the victim or upon any such representation etc. about the agreement. Thus, the view taken by the Courts below that P.W. 1 is a trustworthy witness and her evidence thus inspires confidence to fashion the guilt upon the accused for the offence charged, in my considered view is unsustainable being not at all the outcome of just and proper appreciation of the evidence. The approach of the Courts below appears to be very casual and in a routinely manner. 23. 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 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 age of the parties as also the statues, in the facts and surrounding circumstances which emanate from the evidence on record, hint is available on the score that the victim had a conscious decision after active application of mind to the things that had happened and that is not ruled out. Therefore, 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 is liable to be set aside. 24. In the wake of aforesaid, the judgment dated 21.03.2005 passed by the learned Adhoc Addl. Sessions Judge, Jeypore in Criminal Appeal No. 39 of 2003 (Cr.A 46/02 of Sessions Judge) confirming the judgment of conviction and order of sentence dated 10.05.2002 passed by the learned Assistant Sessions Judge, Koraput in S T. No. 41/01 (Sessions Trial No. 238/2001) is hereby aside. 25. Sessions Judge, Jeypore in Criminal Appeal No. 39 of 2003 (Cr.A 46/02 of Sessions Judge) confirming the judgment of conviction and order of sentence dated 10.05.2002 passed by the learned Assistant Sessions Judge, Koraput in S T. No. 41/01 (Sessions Trial No. 238/2001) is hereby aside. 25. Resultantly, 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 and in case, he is on bail, the bail bonds shall stand discharged.