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2019 DIGILAW 548 (ORI)

Ratan Harijan v. State of Orissa

2019-08-27

D.DASH

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JUDGMENT : D. Dash, J. 1. This appeal has been directed against the judgment dated 11.07.2012 passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Jeypore in Criminal Appeal No. 63 of 2011. 2. By the said judgment, the appellate court has confirmed the judgment of conviction of the appellant (accused) for commission of offence under section 376, I.P.C. as has been passed by the learned C.J.M. cum-Assistant Sessions Judge, Koraput at Jeypore on 19.02.2007 in ST No. 22 of 2007 and has found the order of sentence directing the accused to undergo rigorous imprisonment for a period of seven years and pay a fine of Rs. 500/- with the default stipulation to undergo rigorous imprisonment for six months as commensurate with the finding of guilt and commission of offence as established. 3. The prosecution case, in short is that on 17.01.2007 the victim (P.W. 3) had gone to her elder father's house to attend a feast. Around 11 p.m. when she felt the chill, she asked her cousin Basanti to give a shawl. As Basanti could not provide the same to meet the immediate need of the victim, the accused who happens to be the son of her elder father called P.W. 3 to his house in the pretext of giving a shawl and when the victim believing his words in good faith followed him, the accused taking the advantage of the presence of the victim in the room bolted the doors of the room from inside and fulfilled his sexual lust and desire by having sexual intercourse with the victim. It is stated that when the victim had attempted to raise nulla, the accused gagged her with his hands. It is also stated that after the first sexual intercourse, the accused had again attempted to go for the second time and for that forcibly made her lie. But as that point of time as the brother of the victim came and knocked at the door, accused finding no other alternative had to leave the victim. Coming out, the victim found the brother of the accused, his wife and sister. The victim then narrated the incident to them. They in turn, requested her not to divulge it before others. By that time, the sister of the victim who was searching the video show on the road adjacent to the house was told about the incident. Coming out, the victim found the brother of the accused, his wife and sister. The victim then narrated the incident to them. They in turn, requested her not to divulge it before others. By that time, the sister of the victim who was searching the video show on the road adjacent to the house was told about the incident. Thereafter the victim and her sister returned home and told about the happenings to their mother. Father of the victim being informed on the next date, went to the house of the accused who was then absent. After return of the accused to the village, a panchayati had been convened. The accused refuted the allegation of rape. The panchayati thus became an exercise in futility. Finally, the matter having been reported at Borigumma police station on 24.01.2007, PS. Case No. 10 of 2007 stood registered and investigation commenced. On completion of investigation, charge sheet being submitted against the accused for trial for commission of offence under section 376/506, I.P.C., he ultimately faced the trial. The case of the accused is that of denial and false implication. 4. In the trial, prosecution has examined in total eight witnesses. The star witness for the prosecution is P.W. 3, i.e., the victim. Other important witnesses are P.Ws. 1 and 2 the two doctors who had examined P.W. 3 and the accused respectively. P.W. 4 is the sister of P.W. 3 and 5 is her father. From the side of the defence Raidhar and Basanti have been examined as D.Ws. 1 and 2. Prosecution besides leading evidence through the lips of the above witnesses has proved the documents, such as F.I.R. (Ext. 3), medical reports (Exts. 1 and 2) and chemical examination report (Ext. 13) along with other documents, such as, seizure list, copy of the letter forwarding the incriminating articles for chemical examination etc. 5. The trial court, on examination of the evidence and upon their evaluation has found the accused guilty for commission of offence under section 376, I.P.C. and he has been sentenced as aforestated. 13) along with other documents, such as, seizure list, copy of the letter forwarding the incriminating articles for chemical examination etc. 5. The trial court, on examination of the evidence and upon their evaluation has found the accused guilty for commission of offence under section 376, I.P.C. and he has been sentenced as aforestated. The lower appellate court having gone through the evidence of all the witnesses has arrived at a conclusion that the prosecution has proved its case beyond reasonable doubt to the extent that in the night of the occurrence, the accused took the victim (P.W. 3) inside his room on the pretext of providing a shawl for her and raped her. It has also been the finding that said sexual intercourse was not with the consent and will of P.W. 3. The sentence awarded by the trial court has been found to be just and proper and thus not interfered with. 6. Learned counsel for the petitioner (accused) submitted that the courts below have been swayed away by the evidence of victim (P.W. 3) without testing the trustworthiness in the touchstone of surrounding circumstances which are emanating not only from the evidence of P.W. 3 but also very much from the evidence of other witnesses. He further submits that in such situation the solitary testimony of P.W. 3 as to rape is ought not to have been believed without prompt reporting and in the absence of any medical evidence coming to corroborate. He further submitted that taking a cumulative view on the evidence on record as to the sequence of events and the happenings as projected by the prosecution through the witnesses, the finding of the courts below clearly appears to be perverse as the courts below should not have accepted the evidence of P.W. 3 that she was raped by the accused and it ought to have been held to be a consensual sex between the two with further finding that it has been given a colour of rape by P.W. 3 as an instinct of self-preservation. He, therefore, submitted that it is a fit case for interference with the finding of guilt and secondly the order of sentence. 7. Learned counsel for the State submitted all in favour of the judgments under challenge. He, therefore, submitted that it is a fit case for interference with the finding of guilt and secondly the order of sentence. 7. Learned counsel for the State submitted all in favour of the judgments under challenge. It is his submission that when no such strong suspicious feature appears in the evidence of P.W. 3, the same being merely not corroborated by the medical evidence is of no fatal consequence. He further submitted that simply because of the presence of other and his knocking, the door being opened, inference is not to be drawn that P.W. 3 had gone to say it to be a rape, just out of her instinct of self-preservation. He submitted that on the evidence on record with heightened scrutiny when the courts below have accepted the version of P.W. 3, there appears no perversity with the same. He, therefore, submitted that the revision sans merit. 8. 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 accused, the fulcrum of the prosecution case logically is the testimony of the victim. It was thus undenied that the credibility and trustworthiness of the victim's version is the decisive factor in adjudging the complicity of the accused. 9. It has been held in the case of Raju and others v. State of U.P., (2008) 15 SCC 133 : ( AIR 2009 SC 858 ) 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 114-A of the Evidence Act is restricted on its application compared to the scope and ambit of the presumption under sections 113-A and 113-B of the Evidence Act. The presumption even contemplated in section 114-A of the Evidence Act is restricted on its application compared to the scope and ambit of the presumption under sections 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 would 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 rape victim 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. 10. To begin with, the evidence of P.W. 3 who happens to be the star witness for the prosecution and upon whose testimony, the Courts below have gone to base the finding of guilt, being carefully read, it is seen that the accused is her agnetic brother. It is her evidence that she had been to the house of accused being invited by his father to attend the 21st day ceremony of his grandson and grand-daughter. She had gone to help them in cooking. After the feast was over, P.W. 3 asked Basanti; sister of the accused to give her a shawl to which she replied to be having no extra shawl with her and for that accused called her to search a shawl in the house and took her there. She says that the house of accused is at a little distance. She is not stating that she went being forced or compelled. It was during night after 10.00 p.m. She is also not saying that her leaving was to the knowledge of Basanti, D.W. 2. It is her evidence that at that time all were witnessing television and she followed the accused. The fact relating to this ongoing television show does not find mention in the FIR. 11. She has said that she searched the shawl in one room and when she could not find it there, she went to another room for the purpose. It is her evidence that at that time all were witnessing television and she followed the accused. The fact relating to this ongoing television show does not find mention in the FIR. 11. She has said that she searched the shawl in one room and when she could not find it there, she went to another room for the purpose. It is her evidence that while she was searching, the accused bolted the door from inside, caught hold of her and made her lie on the bed and then he pulled her chadi. Next she says that at that time she protested. She has said that the accused did not leave her and forcibly had sexual intercourse. She has again said that after that sexual intercourse the accused when further made her He, she raised hulla for which the accused gagged her through his hands. By then Raidhar (D.W. 1), the brother of the accused came and shouted from outside. So, the accused opened the door, when this victim narrated the incident to Basanti (D.W. 2) and Manguli the wife of Raidhar who were seen to be standing outside. The presence of Raidhar, his wife and Basanti do not appear to be as the result of any hue and cry. The natural inference to the call given by Raidhar as stated by victim (P.W. 3) at that hour of night is that either hearing some unusual sound and finding the door of the room closed or when they came they seeing the door closed, had responded. She is not stating to have raised any hulla when the accused bolted the door. It is not stated that there was any resistance from her side when accused was removing her chadi. Evidence on record go to show that the television show was going on at a distance of 20 meters and that was by then being witnessed by hundred persons. The F.I.R. (Ext. 3) has been lodged after a week or so. The scribe of the F.I.R. (Ext. 3) has not been examined. When it is said by P.W. 3 that her chadi was pulled by the accused, the same does not specifically find mention in her report nor had been so stated by her before the police during her examination. 3) has been lodged after a week or so. The scribe of the F.I.R. (Ext. 3) has not been examined. When it is said by P.W. 3 that her chadi was pulled by the accused, the same does not specifically find mention in her report nor had been so stated by her before the police during her examination. As regards protest by saying leave me nana' that is also absent in the report and in her statement, which have been proved through the Investigating Officer, P.W. 8. The manner in which the sexual intercourse is said to have been committed appears to be improbable. When her evidence is seen that her legs were then touching the ground. She remained in the room for about half an hour and there was no electricity connection to the house, a lamp was burning and the accused was pointing torch light when she was searching the shawl. In such surroundings, all these happenings as narrated by P.W. 3, without her nod in any manner is very hard to accept. The room adjoins the verandah. P.W. 3 did not attempt to make any scratch or bite the accused during the period. P.W. 4 the sister of the P.W. 3 has stated that when she was witnessing the television show, P.W. 3 came there in a shivering condition and on being asked as to the happenings, she narrated the incident. It is the evidence of P.W. 3 that having come out of the room and telling the incident to Basanti (D.W. 2) and wife of Raidhar, she came near the place where the television show going on and asked P.W. 4 to leave her at home and only on being asked, she told about the incident. The accused was then staying with her father and other members of the family in the same premises. He was having his wife and three children. The victim (P.W. 3) has not been able to invite anyone's attention to the incident during when it happened and it only came to be known when Raidhar called near the door of the room. 12. He was having his wife and three children. The victim (P.W. 3) has not been able to invite anyone's attention to the incident during when it happened and it only came to be known when Raidhar called near the door of the room. 12. The evidence, as has been discussed in the foregoing paragraphs being made to pass through all those probability tests keeping the aforesaid principles, laid down in the decisions (supra), the same do not lead to conclude that the accused had sexual intercourse with the victim (P.W. 3) against her will. The courts below in order to judge the creditworthiness of the evidence of P.W. 3 and before accepting the same appears to have failed in applying these basic tests. 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, IPC, is liable to be set aside. In the wake of aforesaid, the judgment of conviction and order of sentence dated 19.12.2007 passed by the trial court, which have been confirmed by the appellate court by its judgment dated 11.07.2012 are hereby set aside. 13. 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. The records of the lower courts be returned forthwith.