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2019 DIGILAW 269 (ORI)

Siba Baskey v. State Of Orissa

2019-04-02

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner by filing this revision has assailed the judgment dated 13.12.2002 passed by the learned Ad hoc Addl. Sessions Judge, (FTC), Baripada, in Crl. By the impugned judgment, the judgment of conviction and the order of sentence dated 27.05.2000 passed by the learned Asst. Sessions Judge, Udala in S.T. Case No. 17/120 of 1999 have been confirmed. The petitioner having been convicted by the trial court for commission of offence under Section 376 I.P.C. has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 1,000/- in default to undergo rigorous imprisonment for a period of six months. The appellate court has confirmed the finding of guilt as above as also the order of sentence. 2. The prosecution case in short is that on 24.03.1998 evening when the informant (P.W.5) was going to the house of Kundru Sethi to witness video show there, on her way the accused called her and offered tobacco in presence of Mitu who was his field hand. It is stated that the accused then dragged her inside the house and forcibly committed sexual intercourse. It is the further case of the prosecution that when the P.W. 5 protested, she was left near her house. The victim P.W. 5 then narrated the incident to her mother as her father was absent and on her father returning home, they came to Kundabai Police Out Post under Udala Police Station and narrated the incident. The report of the victim, P.W. 5 was reduced into writing by the Assistant Sub-Inspector of Police, attached to the said Out-Post and the report being sent to the Officer-in-Charge of Udala Police Station, Udala P.S. Case No. 16 of 1998 being registered, investigation was taken up. On completion of investigation, charge sheet was submitted placing the accused to trial for commission of offence under Section 376 I.P.C. The case being committed, ultimately the petitioner faced the trial and has been convicted for the said offence and sentenced as aforesaid. The appeal preferred by him having yielded no fruitful result, the move is before this Court by carrying the present revision. 3. Prosecution in the case has examined in total sixteen witnesses besides proving the important documents such as FIR Ext.10, injury report of P.W. 5 given by the doctor, P.W. 10 as Ext. 1. The appeal preferred by him having yielded no fruitful result, the move is before this Court by carrying the present revision. 3. Prosecution in the case has examined in total sixteen witnesses besides proving the important documents such as FIR Ext.10, injury report of P.W. 5 given by the doctor, P.W. 10 as Ext. 1. The report of the doctor as to the age of the victim as Ext. 8, whereas the defence has examined one witness. 4. Learned counsel for the petitioner (accused) submits that the evidence of P.W. 5, the victim is wholly unacceptable. According to him, when the same is tested with the evidence of other witnesses, she cannot be taken to be a trust worthy witness so as to rely upon her version to fasten the finding of guilt upon the accused. Therefore, according to him, the courts below have committed error in recording the finding of guilt against the accused for commission of offence under Section 376 I.P.C. basing upon the solitary testimony of P.W. 5. He further submits that the evidence of P.W. 5 that the accused in the relevant evening called her to his house is belied by the circumstances emanating from the totality of the evidence and here the victim had suo moto gone to the house of the appellant and had taken tobacco in view of prior acquaintance. He further submits that the evidence of P.W. 5 as to the forcible sexual intercourse is not deriving any support whatsoever from the medical evidence and when the prosecution has not been able to establish the age of the victim to be under 16 years through clear, cogent and acceptable evidence, it being a clear case of consensual sexual act, the conviction as recorded is unsustainable. It is further submitted that the appellate court has failed to churn the evidence on record by making proper approach and without keeping in view, the settled position of law has just put a seal of approval to the finding of the trial court without concluding in clear term that the same successfully pass through the test of reliability. In view of all the above, he urges that the judgments of conviction and the order of sentence rendered by the courts below are liable to be set at naught. 5. In view of all the above, he urges that the judgments of conviction and the order of sentence rendered by the courts below are liable to be set at naught. 5. Learned counsel for the State submits all in favour of the finding of guilt recorded by the courts below as to the commission of offence under Section 376 I.P.C. by the accused. According to him, the evidence of P.W. 5 is unimpeachable and when nothing in her evidence has surfaced to discard her version nor any circumstance appears in the evidence of other witnesses in that light, the courts below have rightly convicted the accused on the basis of the testimony of P.W. 5 holding her to be a trustworthy witness. 6. The victim P.W. 5 in the case has first of all orally reported the matter before the ASI of Police attached to Kundabai Police Out-Post on 2.4.1998 narrating the incident which is said to have taken place on 24.3.1998. It is said that since the father of the victim was absent at home, on his arrival at that day, they came to the police station to report about the incident and although she had divulged the incident before her mother, they chose to remain silent till arrival of her father. The FIR version runs on the score that the accused called her when she was on her way to witness video show near the house of one Kundru Sethi. She being called by the accused went and sat on his outer verandah and then accused asked her as to if she wanted to chew tobacco. On her saying, tobacco was given by the accused and then she with accused and his field hand namely Mitu took tobacco. It is next stated that after sometime, the accused caught hold of her right hand and when she protested, she was gagged. It is next stated that she was taken to the house of the accused with the pushes given by that Mitu who then put her as also the accused in the house and left the place by closing the door from outside. It is further stated that accused then opened her blouse and squeezed her breasts for which she raised hullah. It is further stated that accused then opened her blouse and squeezed her breasts for which she raised hullah. She was then put to fear of her life and thereafter being made to lie on the ground, the accused having undressed himself, committed rape upon the victim, P.W. 5. Thereafter, she cried and for that she was brought by the accused and left near her house. 7. The victim has stated her age to be 15 years when she deposed in court and that age of the victim appears to have been so given in the FIR Ext. 10 by putting a mark just after her name and writing that on top of it. P.W. 1 the father of the victim has not stated anything about the age of his daughter. It clearly appears to be a later insertion on the top after the name. The mother of the victim examined as P.W. 6 has also not gone to state the age of her daughter P.W. 5. The Radiologist, P.W. 11 although has stated the age of the victim to be 14 to 16 years it is not stated that the margin of error as permissible it has been so recorded taking that into consideration. The prosecution thus can taken any such assurance from his evidence as to the age of the victim to be below 16 years P. Ws. 1 and 6 do not state that the victim had never been admitted to any school and that has not been stated by P.W. 5. No other documentary evidence is placed from the side of the prosecution in support of the age of the victim. In such state of affair in the evidence, the prosecution case projecting the victim to be below 16 years of age is not acceptable and rather her conduct as appear from evidence as also from the discussion as would follow do not stand to support that. 8. Having lent anxious consideration to the materials on record a: well as competing submission based thereon and regard being had to the charge leveled against the petitioner, the fulcrum of the prosecutior 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. 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. 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 113-A and 113-B 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 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. 9. To begin with the evidence of victim RW. 5, it is seen that she has not stated about the presence of that field hand of the accused on that outer verandah when she was called by the accused to take tobacco and talked with him having accepted the request and taking tobacco. She states that the accused after talking with her raped her inside the house. It has not been stated that the accused dragged her inside the house and that varies with the narration in the FIR. Her further evidence is that the accused came to lie over her and opening her wearing clothes, committed sexual intercourse. Interestingly, she states that then she called Mitu for which the accused being annoyed threatened her. It has not been stated that the accused dragged her inside the house and that varies with the narration in the FIR. Her further evidence is that the accused came to lie over her and opening her wearing clothes, committed sexual intercourse. Interestingly, she states that then she called Mitu for which the accused being annoyed threatened her. It is next stated that the accused then released her and she went to her house and narrated the incident before her mother RW. 6. When in the FIR nothing has been stated about the convening of any meeting in the village; in evidence, it is so stated. It is her evidence that when her mother was told about the incident, she disclosed the incident before the villagers in the meeting and thereafter the matter came to be reported to the police. It is the evidence of RW. 1 that he arrived in that evening when his wife P. W. 6 narrated the incident that the accused having dragged the victim RW. 5 committed rape. He states to have convened the meeting on the next morning but the matter has been reported at the police station only on 02.04.1998 as against the incident said to have taken place on 24.03.1998. Explanations given are wholly unacceptable in view of the aforesaid state of affair in the evidence which in the facts and circumstances of the case cannot be so lightly brushed aside. 10. The FIR version when gives a vivid picture as to the role of the accused in committing forcible sexual intercourse upon RW. 5 by dragging her inside with the help of that Mitu. R W. 5 has exonerated that Mitu, in her evidence stating that she called him to come to her rescue after the incident inside the house which exposes the tendency of RW. 5 in telling the correct picture as to the event. Although Mitu was shown as accused at the time of registration of the case, the charge sheet has not been submitted against him. 11. He has also not been cited as a witness. RW. 4 is another field hand of the accused. He has gone to depose that the accused dragged the victim and at that time he was called by the victim but the accused threatened him to take his life. 11. He has also not been cited as a witness. RW. 4 is another field hand of the accused. He has gone to depose that the accused dragged the victim and at that time he was called by the victim but the accused threatened him to take his life. His evidence is that noticing that the accused had taken the victim inside the house against her will, he remained silent. Interestingly, he states that the accused came out of the house after half an hour and took RW. 5 towards her house, which he watched by remaining at a distance. 12. The very presence of this RW. 4 is highly doubtful when his conduct of silence throughout is marked. This witness has not told anything about the incident to anyone. He has tried to improve a lot during his evidence which have been proved by the defence, drawing his attention to the previous statement before the police. 13. The victim in her evidence has stated to have remained in the house of the accused for about three hours. When it is her evidence that the accused had caused teeth bite on her cheek, breast and she had sustained bleeding injuries and because of the forcible sexual intercourse she was also having the marks on her buttock and back, the mother of the victim P.W. 6 who met her soon after the incident has not stated anything about her noticing any such injuries. RW. 12, the doctor who has examined the victim, in his evidence as also in the report has stated to have noticed on such external injury on any part of the body of the victim. 14. It is his evidence that the victim was complaining of secondary amenorrhoea (an abnormal absence of menstruation) from January, 1998 for which she had been referred to Gynaecologist who has found no sign of pregnancy. The statement of the victim before the doctor as noted in the report was that she had voluntarily gone to the house of the accused and it is that Mitu who pushed her inside the room and left by closing the door which is now suppressed by RW. 5 without any such explanation and that again goes to show that she is not coming out to state the true incident. 5 without any such explanation and that again goes to show that she is not coming out to state the true incident. All these stand on the way to say that her evidence successfully pass through the test of reliability. 15. In view of the discussion of evidence as aforesaid, in my considered view, the evidence on record does not lead to conclude that the accused had the sexual intercourse with the victim RW. 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. 16. 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 findings recorded against the accused for commission of offence under Section 376 I.P.C. followed by the order of sentence cannot be sustained. 17. In the wake of aforesaid, the judgment of conviction and order of sentence dated 27.05.2000 passed by the trial court which have been confirmed by the appellate court by its judgment dated 13.12.2002 are hereby set aside. 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.