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2019 DIGILAW 592 (ORI)

Lala Sahu v. State of Orissa

2019-09-18

D.DASH

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JUDGMENT : D. Dash, J. 1. This appeal has been directed against the judgment of conviction and order of sentence dated 20.07.1993 passed by learned Sessions Judge, Balangir in Sessions Case No. 41 of 1993. By the said judgment, the appellant (accused) has been convicted for offence under Section 376 IPC and he has been sentenced to undergo rigorous imprisonment for a period of seven years. 2. The prosecution case in short is that on 11.7.92 afternoon the victim (P.W. 2) then aged about 15 years had been to the river bank to collect flowers. When she was there with her minor sister, the accused in wait of the opportune moment caught hold of her and raped her. The matter being divulged by the victim at home, father of the victim P.W. 4 presented a written report before the OIC, Tusura police Station in the district of Balangir on that very day, at 4.30 P.M. It led to the registration of P.S. Case No. 65 of 1992 and investigation commenced on completion of investigation, charge sheet having been placed against the accused for his trial for commission of offence under Section 376 IPC; he faced the trial. The plea of the defence is that of denial and false implication. 3. In the trial from the side of the prosecution, five witnesses have been examined. P.W. 2 is the victim whereas P.W. 4 is her father who is the informant in the case and had lodged the FIR (Ext. 3). P.W. 3 has been cited as post occurrence witness whereas P.Ws. 1 to 5 are the doctor and Investigating Officer respectively. No evidence has been led from the side of the defence. The prosecution besides leading the oral evidence as above has proved the FIR (Ext. 3), medical examination report of the victim (Ext. 1), chemical examination report (Ext. 8), the report of the doctor (Ext. 11) and other documents. The trial court on analysis of evidence has accepted the version of the victim and concluded that the prosecution has established its case against the accused in committing the offence under Section 376 IPC beyond reasonable doubt, Accordingly, the accused has been sentenced as aforesaid. 4. Learned Amicus Curie submits that the version of the prosecutrix PW-1 is not acceptable. The trial court on analysis of evidence has accepted the version of the victim and concluded that the prosecution has established its case against the accused in committing the offence under Section 376 IPC beyond reasonable doubt, Accordingly, the accused has been sentenced as aforesaid. 4. Learned Amicus Curie submits that the version of the prosecutrix PW-1 is not acceptable. According to him, the same being properly scrutinized and tested in the touchstone of the settled position of law holding the field of appreciation of evidence and being further viewed with the evidence of her father P.W. 4; the finding rendered by the trial court fastening the guilt upon the accused cannot be sustained. He therefore submits that with the evidence on record, failure on the part of the prosecution to prove the charge against the accused can be well said. 5. Learned Addl Standing Counsel has placed the depositions of the victim (P.W. 2), P.W. 3 and the father of the victim examined as P.W. 4. He submits that merely because in the earlier statements of the victim and P.W. 4 recorded under Section 161 Cr.P.C. in course of investigation, the factum of commission of rape do not find mention that itself is no ground to discard the evidence of P.W. 2 given on oath in the trial. It is further submitted that when evidence of P.W. 2 stands corroborated by the evidence of P.W. 4 who is none other than the father of P.W. 2 as well as P.W. 3 who has proved the immediate conduct, of P.W. 2 that to near the spot, the finding of conviction is sustainable. 6. On the basis of rival submission; let us first proceed to have a look the evidence of prosecutrix P.W. 2. She has stated that when she had been to the river bank to collect flowers, the accused caught hold of her and made sex with her. Next she states to have met P.W. 3 on the way and narrated the incident whereafter to her mother and father on his arrival. FIR in the case has been lodged by father of the victim examined as P.W. 4. This P.W. 4 has proved the FIR as Ext. 3. Nothing finds mention as to the commission of rape upon P.W. 2 in the said FIR which bears the signature of P.W. 4. FIR in the case has been lodged by father of the victim examined as P.W. 4. This P.W. 4 has proved the FIR as Ext. 3. Nothing finds mention as to the commission of rape upon P.W. 2 in the said FIR which bears the signature of P.W. 4. It is simply mentioned that the accused was dragging P.W. 2 and in view of the arrival of P.W. 3 hearing the shout of P.W. 2, he fled away. 7. Attention of P.W. 2 has been drawn to her statement recorded immediately after initiation of the case where she has not stated anything about the rape upon her This has been proved through P.W. 5 who is the Investigating Officer of the case. During cross-examination, she has rather stated to have told to the police that the accused caught hold of her hands when he was rebuked by her and then he left. When P.W. 3 the post occurrence witness has come forward to depose in Court that on being asked, P.W. 2 told about the rape upon her by the accused, her attention to the previous statement recorded under Section 161 Cr.PC in course of investigation has been drawn that she had then not stated about the rape and that has also been proved through the Investigating Officer (P.W. 5) who had recorded her statement. Father of the victim having been examined as P.W. 4 has given that no explanation as to why the factum of rape does not find mention in the FIR and what was the reason for that. When ordinarily it is not expected that being the father of the victim when he ventured lodged the FIR at the police station at the cost of the chastity of his daughter inviting social stigma then also he would not state about such important aspect of the case so as to see that the accused is booked in graver offence. P.W. 4 simply states that one phone operator had drafted the report and when he found that there was no mention of the factum of rape, he complained before the Superintendent of Police in writing. That complaint in writing has not seen the light of the day. Even accepting for a moment that this P.Ws. P.W. 4 simply states that one phone operator had drafted the report and when he found that there was no mention of the factum of rape, he complained before the Superintendent of Police in writing. That complaint in writing has not seen the light of the day. Even accepting for a moment that this P.Ws. 3 and 4 having stated about the rape before the Investigating Officer, it was not so written in their respective statements under Section 161 Cr.P.C., they are not stating to have raised their grievance before the Investigating Officer. P.W. 4 when states to have learnt about this suppression in the FIR after three to four days of its lodging, the reason assigned is that for inaction of the police, it was so suspected. P.W. 4 is not in a position to say the name of the scribe Furthermore, the evidence of P.W. 2 run in a general manner as far as the commission of rape is concerned when she says that accused caught hold of her hands and made sex with her as if he came, he saw and he concurred. The victim having silently surrendering to that runs against the normal human conduct and behavior. Rather, cumulative view over the evidence gives ample scope to infer that the allegation of rape is a subsequent development. In such scenario, it is not safe to rely upon the evidence of P.W. 2 to fasten guilt upon the accused when the corroborative evidence also get pushed into the cloud of doubt. True it is that in a case of rape basing upon the solitary testimony of the victim, it is permissible to render a, finding of guilt against the accused. But for that the testimony has to be certified to be free from any such basic infirmity so that the foundation of the finding firmly stand. True it is that in a case of rape basing upon the solitary testimony of the victim, it is permissible to render a, finding of guilt against the accused. But for that the testimony has to be certified to be free from any such basic infirmity so that the foundation of the finding firmly stand. In the case in hand when the FIR does not find mention of the said factum of rape, her father and post occurrence witness were silent on that score when they gave their statements before the I.O. at the first instance and more particularly, when the explanation given by P.W. 4 pointing the finger at the conduct of the investigation by P.W. 5 is not acceptable, in my considered view, the finding of the trial Court holding the accused is guilty for commission of offence under Section 376 IPC cannot be sustained. Having said so, this Court has no hesitation to set aside the judgment of conviction and order of sentence dated 20.7.1993 passed by the learned Sessions Judge, Balangir in Sessions Case No. 41 of 1993. 8. In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 20.07.1993 passed by the learned Sessions Judge, Balangir in Sessions Case No. 41 of 1993 which have been impugned in this appeal are hereby set aside and the accused stands acquitted of the charge. The bail bond executed by the accused shall stand discharged The LCR be sent back immediately.