The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.238 of 1998 ---------- Charu Sahu …. Appellant Mr. B. P. Tripathy, Advocate -versus- State of Orissa and Others …. Respondents Mr. S. Patra, ASC P R E S E N T:
Legal Reasoning
existence of a prima facie case against the accused for commission of the offence under Section 376 of IPC and accordingly took cognizance of the offence and issued process against the accused. 5. The accused appeared in the court. The learned SDJM, Angul committed the case record to the court of sessions for trial. The learned Sessions Judge, Dhenkanal-Angul, Dhenkanal transferred this case to court of Chief Judicial Magistrate-cum-Assistant Sessions Judge, Angul and accordingly the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Angul framed the charge and took up the trial in the matter. 6. The plea of the accused is one of complete denial and false implication. 7. The prosecution in order to bring home the charge examined six witnesses in all. While P.W.1 is the victim, P.W.2 is her mother, P.Ws.3 to 6 are the witnesses who attend the village meeting convened by the victim. CRA No.238 of 1998 Page 3 of 6 // 4 // 8. The accused on the other hand examined one witness in his defence as D.W.1. 9. The learned trial court having held the victim to be a major and further having found the witnesses not reliable and none of the ingredients necessary to establish the offence under Section 375 of IPC to punish the accused under Section 376 IPC and accordingly found him not guilty and acquitted U/s 235(1) Cr.P.C. 10. The learned counsel for the Petitioner though initially submitted not to proceed in the case any further and intended to withdraw the Appeal by filing a memo, agreed to proceed as the Appeal could not be dismissed on the ground of withdrawal and/or permitted to be withdrawn except a disposal on merit. 11. According to the learned counsel, the learned trial court did not appreciate the evidence in accordance with law and has misdirected itself in appreciating the evidence and reached an erroneous conclusion. He further submitted that the victim and the mother of the victim have consistently and coherently stated about the alleged incident and the version of the victim being cogent, ought not to have been held by the trial court the alleged sexual intercourse to be not consensual but against her will. 12. Regard being had to the aforesaid submission, on perusal of the impugned judgment, it reveals that the learned trial court has vividly analyzed the evidence led from the side of the prosecution. The findings of the learned trial court to the effect that the victim never disclosed this incident either before her mother or her brother that took place on 12.05.1996 and further that She also did not disclose about the sexual CRA No.238 of 1998 Page 4 of 6 // 5 // intercourse with her by the accused subsequently till she became pregnant creates doubt on the conduct of the victim. There was neither any hue and cry nor there was any resistance from the side of the victim when she was first subjected to the sexual assault. 13. Needless to mention that there are houses close to the house of the accused according to the prosecution case and the incident took place at 9 A.M. on 12.05.1996. Had there been any hue and cry or resistance from the side of the victim it could have drawn the notice of the persons in the neighbourhood. Further, the findings of the learned court that it is not free from suspicion as the victim should have complained before someone soon after she came out of the room if she was not a willing party to the sexual intercourse. Had it not been so with the time and place of incident it would be impossible for the accused to make any venture for such carnal act. Admittedly, the victim has brought it to the notice of the mother and the brother after about six months of the incident though she continued to have the cohabitation without any hesitation and resistance. 14. From the evidence it is held that the victim was a major at the relevant time as the prosecution has failed to establish that the victim was below 18 years. She being a full grown girl, consent to the act of sexual intercourse on a promise of marriage and continuance of her indulgence in such activities until she became pregnant is an act of promiscuity on her part and not an act of inducement by misconception of fact so as to bring it within the mischief of Section 90 IPC. 15. This Court, therefore, finds no infirmity in the findings recorded by the learned trial court requiring interference as erroneous. The impugned Judgment being in consonance with law and evidence is confirmed. CRA No.238 of 1998 Page 5 of 6 // 6 //
Arguments
HONOURALE SHRI JUSTICE CHITTARANJAN DASH Date of Judgment : 13.02.2024 By the Bench: Heard learned counsel for the Appellant and the State. 2. In furtherance to the leave granted by this Court, the mother of the victim has presented this Appeal assailing the impugned judgment passed by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Angul in S.T. Case No.68-A of 1997 dated 22.09.1997 wherein the Appellant Rabindra Kumar Sahu having faced trial in the offence under Section 376 Indian Penal Code (hereinafter in short called IPC) found not guilty and acquitted from the charge under Section 235(1) CrPC. 3. The case of the prosecution as unfurled before the learned trial court is that the victim (Prosecutrix) and the accused are the resident of village Surab, PS/Dist- Angul. The houses of both the persons situated in the same street in the village and both of them belong to same caste. While CRA No.238 of 1998 Page 1 of 6 // 2 // the victim was aged 16 years and was engaged as a daily labourer in a beedi factory, the accused is a rich man having some landed properties and is a cultivator. It is alleged that on 12.05.1996 at about 9 A.M. while the victim had been to the house of the accused to collect tobacco leaves so as to manufacture beedi in her house, the accused was alone in his house. He asked the victim to go inside his house and fetch tobacco leaves from the room. When she entered inside the room, the accused followed her and closed the door from inside. It is further alleged that the accused squeezed her breast at the first instance. When the victim gave a push to the accused, the accused told the victim that he would marry her and to have sexual intercourse with him in that room. The victim opposed and did not agree to have sexual intercourse with the accused where upon the accused forcibly committed sexual intercourse with the victim against her will and was allowed to go from that room thereafter. The victim came out crying and went to her house. It is alleged further that the accused had gone to the house of the victim and assured the victim to marry her and convinced her not to bother about the consequences of the sexual intercourse. He further told her not to disclose the fact to anyone. It is also alleged that the accused continued to have sexual intercourse with the victim thereafter for about six months till she became pregnant. When the victim requested the accused to marry as she became pregnant through him, the accused asked her to go for abortion. The victim did not agree to such proposal and brought it to the notice of her mother who insisted the accused to marry the victim, but of no effect. In connection with the incident, a Panchayat was convened in the village at the instance of the victim and her mother. In the Panchayat, the victim complained before the ‘bhadralok’ that the accused forcibly cohabited with her and made her pregnant. The accused who was present in the Panchayat though CRA No.238 of 1998 Page 2 of 6 // 3 // admitted about the sexual intercourse with the victim did not agree to accept her as his wife. 4. As the matter could not be decided in the Panchayat, the brother of the victim brought it to the notice of the Angul Police. It is further alleged that the accused was called to the Police Station and on being asked by Police, he agreed to take the victim as his wife but subsequently avoided and absconded from the village. The victim finding no other remedy approached the court by filing a complaint against the accused. The learned SDJM, Angul examined the complainant and having proceeded with the enquiry under Section 202 CrPC came to a conclusion as to
Decision
16. In the result, the Appeal stands dismissed being devoid of merit. Judge (Chittaranjan Dash) AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Feb-2024 18:06:17 CRA No.238 of 1998 Page 6 of 6