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2019 DIGILAW 236 (ORI)

Surendra Kumar Mallick @ Rabi v. State Of Orissa

2019-03-25

D.DASH

body2019
JUDGMENT Justice D. Dash, J. - The petitioner, by filing this revision, has prayed for examination of the legality and propriety of the judgement dated 20.01.2005 passed by the learned Ad hoc Additional Sessions Judge (FTC), Jagatsinghpur in Criminal Appeal No.08 of 2003 (Criminal Appeal No.33 of 1999) confirming the judgment of conviction dated 20.09.1999 passed by the learned C.J.M.-cum-Assistant Sessions Judge, Jagatsinhgpur in S.T. No.528 of 1997 (Trial No.6 of 1998), convicting the petitioner (accused) for the offence under section 376 of the Indian Penal Code (in short, 'the IPC') followed by the order of sentence of seven years of rigorous imprisonment and payment of fine of Rs. 2000/- in default to undergo rigorous imprisonment for six months and further payment of the same to the victim in case of realization. 2. The prosecution case, in short for the purpose, is that the husband of the victim (p.w.8) works in Paradeep Phosphates Limited (PPL) and he with his wife (victim-p.w.5) reside in the PPL township. It is alleged that on 1.8.1996 around 1.00 pm, when the victim was taking rest, the accused suddenly came inside the house, lifted her saree and attempted to commit sexual intercourse. The victim then resisted. It is further stated that the accused then wanted to kill the victim showing the knife. Hearing hullah, the husband of the victim (p.w.8) came to the spot when the accused ran away. Information being lodged at the PPL police outpost, Paradeep P.S. Case No.225 of 1996 was registered against the accused for offence under Section 376 I.P.C. and the investigation commenced. On completion of the investigation, charge-sheet being placed against the accused, finally he faced the trial. 3. In the trial, the accused took the plea of complete denial and false implication due to prior land dispute. The prosecution examined twelve witnesses, including the victim, p.w.5 and her husband, p.w.8, the defence has examined none. The prosecution has further proved the FIR as Ext.4, the medical examination report of p.w.5 (Ext.1) and other documents. The accused has proved the certified copy of the order dated 27.11.1996 passed by the Executive Magistrate in Misc. Case No.11 of 1994 and that has been marked as Ext.A. 4. The trial court, on analysis of evidence, has convicted the accused for the offence under Section 376 I.P.C. and sentenced him as aforesaid. The accused has proved the certified copy of the order dated 27.11.1996 passed by the Executive Magistrate in Misc. Case No.11 of 1994 and that has been marked as Ext.A. 4. The trial court, on analysis of evidence, has convicted the accused for the offence under Section 376 I.P.C. and sentenced him as aforesaid. The appeal carried by the accused has not yielded any fruitful result. Hence, the revision. 5. Heard learned counsel for the petitioner and the learned Additional Standing Counsel. I have gone through the judgments passed by the courts below. 6. 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. 7. 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. 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 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. 8. 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. 8. The F.I.R. in the case has been lodged by the victim herself. She being illiterate, has put her LTI on the same. Said FIR (Ext.4) does not find any mention as to who has scribed it and there is no endorsement to that effect. The victim when states that the F.I.R. had been written at her instance, she has gone to express her ignorance as to who scribed the same and further admits that it was not read over and explained to her. Her husband, p.w.8 is also not able to say as to who scribed the F.I.R., Ext.4 where as the Investigating Officer, p.w.12 has stated that on his asking p.w.5 had stated that said F.I.R., Ext.4 had been written by one Advocate's clerk that to in the morning hours of the day when it had been presented at the police station. 9. As against the incident said to have taken place on 1.8.1996, it has been received by the S.I. of Police attached to the PPL Township on 5.8.1996. The victim, in her evidence, has stated that she had informed her husband immediately after the incident and her husband then searched for the accused and had gone to another village and then ultimately, having gone to the police station, has orally reported the matter. When she states that she having orally reported the matter at Kendrapara police station, the police personnel there directed her to lodge the FIR at Paradeep P.S. and, therefore, finally it was lodged there, no such record is proved to that effect. In Ext.4, the FIR, there is absolutely no such mention that she had reported the matter orally at Kendrapara P.S. 10. The FIR does not find mention of anything as to the explanation for delay. It is the FIR version that when the accused was pushing her penis into the vagina, the victim woke up from sleep and thereafter when she having attempted to escape from his clutch, shouted when her husband arrived and the accused immediately left the place. The FIR does not find mention of anything as to the explanation for delay. It is the FIR version that when the accused was pushing her penis into the vagina, the victim woke up from sleep and thereafter when she having attempted to escape from his clutch, shouted when her husband arrived and the accused immediately left the place. Coming to her version, as presented during the trial, on being examined as p.w.5, it is seen that she has stated that she woke up from the sleep when the accused suddenly pounced over her and inserted his penis into her vagina and then being resisted, the accused fell down from the cot when she tried to run away. 11. It is further stated that the accused then caught-hold of her and pointed a knife and threatened to kill her and then made her lie again on the cot for which she cried and next, she was given threat to life, in case she would divulge the matter before anybody. It is interesting to note that she has stated that at that time, the door of the room was bolted from inside by the accused and the accused getting himself dressed, left the place and thereafter her husband came through the backside door. 12. This p.w.5 has not stated before the I.O. that accused had pounced over her and he fell from the cot being resisted and that on her protest, accused ran away. It was also not her statement before the police that the door was bolted from inside. When p.w.5 as also her husband p.w.8 that broken bangle pieces were lying on the floor, those were not produced before the I.O. nor the I.O. has so found during spot visit and has not seized. It is the evidence of p.w.5 that around 1.00 pm when he was sleeping in the house of Padmanav Barik, he was called by Padmanav by knocking the door. 13. Being informed by Padmanav Barik that his elder son was crying, he went to the house and he found the front door of the house to have been bolted from the inside and when he tried to enter through the back door, the accused went away through that exist by giving a push at him. He has further stated that on his arrival, his wife disclosed that the accused, lifting her saree, sexually assaulted her. He has further stated that on his arrival, his wife disclosed that the accused, lifting her saree, sexually assaulted her. This Padmanav Barik has not been examined as a witness from the side of the prosecution. 14. During cross-examination, p.w.5 has stated that she and her husband were separately staying and then they were having no sexual relationship. It is her evidence that the accused is her brother-in-law by village courtesy. When she has stated that her husband came to the quarter after the accused left the place, the evidence of her husband is to the effect that he saw the accused leaving and he left the place giving push. The victim having been medically examined, no such external injuries have been noticed on her person and so also on the person of the accused when victim is specifically stated to have sustained bleeding injuries on both of her wrists due to the breaking of bangles 15. At this state, the conduct of the victim in remaining unmoved runs against normal human conduct. The victim is mother of three children then aged around 15, 10 and 7 years. The conduct of the p.w.8 on seeing the accused in coming to the house instead of chasing him raises eyebrows and is rather suggestive of the feature that on his sudden arrival, the matter has been given a twist by p.w. 5 especially when there is no mark of violence and no injury has been noticed on any part of the victim. The evidence of p.w. 5, 8 being read together and cumulatively viewed with the factum of delay in lodging the F.I.R., Ext.4 as also non-examination of Padmanav, a case of consensual sexual relationship between the victim and accused as to have taken the turn of such sexual relationship against the will of the victim on sudden arrival of p.w.8 out of the instinct of self preservation is not altogether ruled out. 16. At this juncture, it is profitable to place on record as to what have been stated by the Hon'ble Apex Court in a 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. 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 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 Pex-press 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." 17. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances." 17. The evidence, as has been discussed in detail as at foregoing paragraph-8, being made to pass through all those probability tests keeping the aforesaid principles, given in the decision (supra) in mind, this Court is unable to conclude that the accused had the sexual intercourse with the victim, p.w.5 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. 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 I.P.C. is liable to be set aside. 18. In the wake of aforesaid, the judgment of conviction and order of sentence dated 20.09.1999 passed by the trial court, which have been confirmed by the appellate court by its judgment dated 20.01.2005 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.