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2019 DIGILAW 334 (ORI)

Chandramani Digal v. State of Odisha

2019-04-18

D.DASH

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JUDGMENT : The petitioner (accused) from inside the jail has filed this revision questioning the judgment dated 30.11.2004 passed by the learned Additional Sessions Judge, Bhanjanagar in Criminal Appeal No. 16 of 2016 confirming the judgment of conviction and order of sentence dated 16.01.2003 passed by the learned Assistant Sessions Judge, Bhanjanagar in S.C. No. 32 of 2002 (S.C. No. 01 of 2002 GDC). 2. The appellate court while confirming the judgment of conviction of the accused for commission of offence under section 376 of IPC and the order of custodial sentence of rigorous imprisonment of seven years as imposed by the trial court to be just and proper, has however proceeded to reduce the sentence of fine Rs. 5000/- as imposed by the trial court to Rs. 1,000/- with default stipulation of undergoing rigorous imprisonment for a period of six months. 3. Prosecution case in short is that on 31.05.2001 around 6.00 am the victim-PW.5 with another had gone to Darpangia jungle for collection of firewood. The accused arrived and dragged P.W. 5. It is alleged that the accused then expressed his intention to have sexual intercourse with her. When the accused started dragging P.W.5, she caught hold of her friend PW.1 who was by her side from being saved from the clutch of the accused. The attempt of the victim went in vain and the accused forcibly dragged her away, when the friend of the victim out of fear left the place. It is next alleged that no sooner did the friend of the victim left the place, the accused committed sexual intercourse upon the victim despite protest and resistance. The friend of the victim on her arrival at village, informed some villagers about the incident who then went towards the jungle to save the victim. On their way, they saw that the victim was being dragged by the accused towards the village. She was then rescued and on her return home, she narrated the incident that had happened in the jungle. The victim then lodged the F.I.R. at Bhanjanagar P.S. which led to the registration of Bhanjanagar P.S. Case No. 61 of 2001 for offence under section 376 of the IPC. On completion of the investigation, charge-sheet having been filed, finally, the accused faced trial after the commitment of the case to the court of Sessions. The victim then lodged the F.I.R. at Bhanjanagar P.S. which led to the registration of Bhanjanagar P.S. Case No. 61 of 2001 for offence under section 376 of the IPC. On completion of the investigation, charge-sheet having been filed, finally, the accused faced trial after the commitment of the case to the court of Sessions. In the trial, the accused took the plea that the sexual relationship with the victim on that relevant date, time and place was with her consent and thus he refuted the charge of rape. The trial court on analysis of evidence held the accused guilty for commission of rape upon the victim which has been confirmed in appeal and he has been sentenced as aforesaid. 4. The accused had questioned the judgment of conviction and the order of sentence passed in the appeal by filing this revision from inside the jail. 5. Learned Amicus Curie appearing for the petitioner submits that the courts below have not properly appreciated the evidence of the victim-P.W.-5 and without any justification has held the evidence of P.W. 5 to be reliable on the score that the accused had raped the victim (P.W.5). According to her, the evidence of victim-P.W.-5 when read as whole and considered with the circumstances which emanate from the other evidences on record, it has to be said that the same do not pass through the test of reliability. In view of above, she urges that this revision is to succeed in upsetting the judgment of conviction and order of sentence recorded against the accused. 6. Learned counsel for the State submits that the concurrent finding of fact rendered by the courts below that the accused had on the relevant date, time and place committed rape upon P.W.5 is not liable to be interfered as no such perversity is noticed in the matter of appreciation of evidence in arriving at that conclusion. He further contends that this Court being in seisin of the revision should not take up the exercise of reappraisal of evidence as like the appellate court. According to him, the evidence of P.W.5 is unimpeachable and the plea of the accused that the sexual intercourse was with consent has been rightly repelled by both the courts below. 7. He further contends that this Court being in seisin of the revision should not take up the exercise of reappraisal of evidence as like the appellate court. According to him, the evidence of P.W.5 is unimpeachable and the plea of the accused that the sexual intercourse was with consent has been rightly repelled by both the courts below. 7. On the above rival submission, in order to address the core question as to the acceptability of the evidence of P.W.5, it is apposite to have a look at her evidence. The F.I.R. in the case has been lodged by P.W.5 herself. This has been marked as Ext. 1. The victim appears to be illiterate and has put her LTI under Ext. 1 which has been scribed by one Pradip Kumar Digal examined as P.W. 3 in reducing the version of P.W. 5 into writing with an endorsement to that effect. It has been mentioned therein that the accused having dragged P.W.5 after her friend left the place, forcibly committed sexual intercourse on her and thereafter while she was being brought to the village on the way, she was rescued. It has been stated by P.W.5 that the accused is the son of her father’s mother’s-sister. She has stated that when accused caught hold of her, she requested him to leave her and then the accused told that he would marry her to which she did not agree. So, she was dragged again. It has also been stated that her friend (P.W. 1) who was with her when failed in her attempt to save her from the clutch of the accused, ran towards the village. It is her further evidence that the accused thereafter dragged her to a distance, threw her on the ground, tore her saree, lifted her saya, removed the piece of cloth which she had put on as she was undergoing the period of menstruation and ravished her. 8. The plea of the accused is that the victim had her consent for having that sexual intercourse. A careful reading being given to the evidence of P.W.5, it appears that despite searching cross-examination nothing substantial has been brought out from her lips to discredit her version as regards the role played by the accused. 8. The plea of the accused is that the victim had her consent for having that sexual intercourse. A careful reading being given to the evidence of P.W.5, it appears that despite searching cross-examination nothing substantial has been brought out from her lips to discredit her version as regards the role played by the accused. When the plea of consent has been taken, it is found that the victim was then undergoing period of menstruation which heavily stands on the way of entertaining the plea unless of course the evidence on record being examined from all angles go to show all the circumstances of willful and voluntary participation of the victim even in that situation. For the purpose when the evidence of the doctor who has examined P.W.5 i.e. P.W.15 is glanced at, it is seen that at that point of time, the victim was passing through the menstruation phase which she had attended two years before and that has been so noted in the medical examination report. When the evidence of P.W.5 as to the role of the accused has practically remained unshaken and no other circumstance appears therefrom or from other evidence to doubt her shown testimony, in my considered view, the victim (P.W.5) squarely stands as a reliable and trustworthy witness. In that view of the matter, it is found that the courts below have rightly held the accused guilty for having committed rape upon the victim i.e. P.W. 5. In that view of the matter, this Court finds no such illegality or impropriety in the findings of the courts below as to the establishment of the case of the prosecution against the accused in committing rape upon P.W.5 punishable under section 376 of the IPC. The sentence imposed by the appellate court in the facts and circumstances is also found to be just, proper and appropriate. 9. For the aforesaid, the revision stands dismissed.