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2019 DIGILAW 498 (ORI)

State of Orissa v. Puria Pati

2019-08-01

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The State having filed this appeal has called in question the judgment dated 05.08.1992 passed by the learned Assistant Sessions Judge, Jeypore in Sessions Case No. 69 of 1991 (S.C. No. 269/91). The respondent (accused) having faced the trial for commission of offence under sections 451/376, I.P.C. has been acquitted from the charge. 2. Prosecution case in short in that on 01.06.1991 during day time the victim and her husband were sleeping in their house. It was around 3 P.M. the accused came and removing her saree and undergarments committed rape upon her. It is stated that the victim at the relevant time was thinking as if she was having sexual intercourse with her husband. The victim having thereafter come to sense found the accused to be the person and then she protested. But the accused further cohabited with her against her consent. It is the further case of the prosecution that after commission of rape the victim when give a push to the accused and raised hulla, the elder daughter of the victim came and protested. The accused then left the place. The matter being reported by the victim to her husband, a Panchayat had been convened. It is stated that the accused admitted his guilt before the Panchayat. The victim then reported the matter at the police station which led to the registration of the case and commencement of the investigation. On conclusion of the investigation, charge-sheet having been submitted against the accused for commission of offence under sections 451/376, I.P.C., he faced the trial. The prosecution in the trial has altogether examined nine witnesses. Out of whom the victim is P.W. 1, P.W. 2 is her daughter and P.W. 3 is the witness to have seen the accused entering into the house. Other witnesses P.W. 4 to 6 are the members of the Panchayat, which had been convened aftermath the incident. The doctors in the case has been examined as P.W. 7 and 9. The investigating officer has come to the dock and has been examined as P.W. 8. From the side of the prosecution, F.I.R. (Ext. 2), seizure lists and other contemporaneous documents seized and collected in course of investigation have been proved. 3. The case of defence is that of complete denial. 4. The investigating officer has come to the dock and has been examined as P.W. 8. From the side of the prosecution, F.I.R. (Ext. 2), seizure lists and other contemporaneous documents seized and collected in course of investigation have been proved. 3. The case of defence is that of complete denial. 4. The trial court upon examination of the evidence on record and upon their scrutiny as well as examining the documents admitted in the evidence from the side of the prosecution has not found the accused guilty for commission of offence under sections 451/376, I.P.C. The trial court analyzing the evidence of the victim discarded the same since there remains no corroboration from any other source in support of the case of rape upon her by the respondent. It is said that the evidence contains basic infirmities such as maintenance of silence, lack of resistance and absence of such other injuries which do ordinarily come in. With this, the respondent having been acquitted, the appeal has been preferred by the State. 5. Learned counsel for the State submits that the evidence of the victim examined as P.W. 1 being free from any basic infirmity, the trial court ought not to have proceeded to test the same with a pinch of salt from the beginning simply from the reason that she is married and aged about 38 years without keeping in view that the witness belonging to scheduled tribe community hails from rural area in the schedule district of the State. According to him, the version of P.W. 1 is natural and when nothing has surfaced in her evidence that she had any axe to grind against the accused, the court below is not right in going to say that she has given the colour of rape to the incident: He, thus, submits that even though the solitary testimony of P.W. 1 in the present case is enough to fasten the criminal liability upon the accused yet it has received corroboration from the evidence of other witnesses, such as, her daughter (P.W. 2) and P.W. 3. He, therefore, urges that here the finding of the trial court against prosecution is the outcome of perverse appreciation of evidence and cannot be sustained. 6. None appears for the respondent (accused). I have perused the judgment of the trial court. 7. He, therefore, urges that here the finding of the trial court against prosecution is the outcome of perverse appreciation of evidence and cannot be sustained. 6. None appears for the respondent (accused). I have perused the judgment of the trial court. 7. On such rival submission, this Court is now called upon to examine the evidence tendered by the prosecution in order to judge the sustainability of the finding of the trial court as to whether the same is the outcome of the proper appreciation of evidence or not. But before that it is felt to apposite to take note of the settled position of law as regards the scope of this appeal and power of this Court to interfere with the order of acquittal. 8. It has been held in case of Basappa Vs. State of Karnataka; (2014) 57 OCR 1044 that the High Court in an appeal under section 378 Cr.P.C. is entitled to reappraise the evidence and put the conclusions drawn by the trial court to test but the same is permissible only if the judgment of the trial court is perverse. Relying the case of Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh; (2009) 10 SCC 639, it has been held that the word "perverse" in terms as understood in law has been defined to mean 'against weight of evidence'. In 'K. Prakashan Vs. P.K. Survenderan, (2008) 1 SCC 258 , it has also been held that the Appellate Court should not reverse the acquittal merely because another view is possible on evidence. It has been clarified that if two views' are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref.:- T. Subramaniam Vs. State of Tamil Nadu, (2006) 1 SCC 401 ). Further, the interference by appellate Court against an order of acquittal is held to be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take (Ref.:- Bhima Singh Vs. State of Haryana; (2002) 10 SCC 461). 9. In the backdrop of above, let us glance at the evidence of P.W. 1, the victim. She is a married woman aged about 38 years. State of Haryana; (2002) 10 SCC 461). 9. In the backdrop of above, let us glance at the evidence of P.W. 1, the victim. She is a married woman aged about 38 years. It has been stated by her that on the relevant date and time her husband was sleeping in the verandah and she had slept inside the house by just closing the door without putting the bolt from inside. She has further stated that the accused entered into the house, removed her cloth and went for sexual intercourse. It has been stated that she then believed the man having the sexual intercourse to be her husband as at that point of time she was under intoxication and, therefore, did not protest. It has been next stated that while the accused was' having sexual intercourse, her daughter (P.W. 2) arrived and saw the same. Seeing it, she shouted at the accused and challenged him for such indecent act. The victim states that only then she could know that the man who was going for the sexual intercourse was not her husband. So, she further protested, when accused fled away. The evidence of P.W. 2 is on the score that when she came to the house, she saw her father sleeping on the verandah. So she wanted to open the door. She found it to have been bolted from inside for which she forced her entry to the house when she could see the accused having sexual intercourse with P.W. 1, who was completely naked at that time and was asleep. The version of the F.I.R. (Ext. 8), however, runs in a different direction. The F.I.R. has been lodged by P.W. 1. Her version has been reduced into writing. It has been indicated there that she had slept in the house by bolting the door from inside. It has also been mentioned therein that around 3 P.M. the accused was seen to be committing sexual intercourse upon her. So, she physically protested. But still the accused went on committing the sexual intercourse till he fulfilled his sexual lust and desire by discharge of semen. It has also been mentioned therein that around 3 P.M. the accused was seen to be committing sexual intercourse upon her. So, she physically protested. But still the accused went on committing the sexual intercourse till he fulfilled his sexual lust and desire by discharge of semen. The evidence of P.W. 1 being read with the evidence of P.W. 2 and tested with her version at the earliest point of time as it finds mention in the F.I.R., in my considered view falls far short of being placed reliance with in order to conclude that the accused had forcibly committed the sexual intercourse upon her without her consent and against her will. For the aforesaid the finding of the trial court that the accused is not guilty of offence under section 451/376, I.P.C. is not liable to be interfered with in this appeal. 10. Accordingly, the appeal stands dismissed.