The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.650 of 2011 (In the matter of an application under Sections 401 read with Section 397 of the Criminal Procedure Code, 1973) Narendra Giri ……. Petitioner -Versus- State of Orissa ……. Opp. Party For the Petitioner : Mr. D.P. Dhal, Senior Advocate, along with Mr. Kamalakanta Sethi, Advocate For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate. CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.07.2024 : : Date of Judgment: 29.10.2024 S.S. Mishra, J. The petitioner faced the trial for the alleged commission of the offences under Sections 354/448/506 of the IPC before the learned S.D.J.M., Rairangpur in G.R. Case No.123 of 2005 (Trial Case No.509 of 2005). After conclusion of trial, while being acquitted of the charge under Section 506 of the IPC, the petitioner was convicted for the offences under Sections 448 and Section 354 of the IPC. The learned trial Court accordingly sentenced the accused-petitioner to undergo S.I. for a period of six months for the offence under Section 354 of the IPC and to pay a fine of Rs.1,000/-, and in default of payment of fine, to undergo S.I. for 15 days for the offence under Section 448 of the IPC vide order dated 11.04.2011. Being aggrieved with the said judgment and order, the petitioner preferred Criminal Appeal No.4 of 2011 before the learned Additional Sessions Judge, Rairangpur. After hearing the learned counsel for the parties, the appellate Court dismissed the appeal and confirmed the judgment and order of the learned trial Court vide judgment and order dated 01.08.2011. Being aggrieved with the said confirming judgment and order, the petitioner preferred the present Criminal Revision Petition. 2. The prosecution case, in brief, is that, on 16.04.2005 at about 8.30 A.M. in village Maghua, while the informant Rina Giri was feeding her infant son in her house, the accused-petitioner came and snatched her son from her lap and dragged the informant into a room. The informant Page 2 of 11 tried to save herself, but the accused managed to pin her to the ground and tore her blouse and lifted her saree and saya with a view to outrage her modesty. In order to save herself, the informant assaulted the accused-petitioner by means of a steel glass on his face, as a result of which, the accused left her but threatened to kill her if she discloses the incident to anyone and fled away from the spot. Thereafter, the sister-in- law of the informant, having returned home, the informant narrated the incident before her and both of them went to the house of the accused- petitioner. But, on the way, they saw the accused going on a bicycle. Thereafter, the informant and her sister-in-law narrated the incident before the parents and other family members of the accused, but they abused them and threatened them with dire consequences, if the matter was not hushed up. The matter was reported before the Tiring Police Station after the return of the husband of the informant from Bangalore, where he was working. On the basis of such allegation, an F.I.R. was lodged with Tiring P.S. Case No.21/2005, and charge sheet was submitted against the Page 3 of 11 accused-petitioner for the offences under Sections 448/354/506 of the I.P.C. The petitioner was charged and put to trial for the said offences. 3. To bring home charges, the prosecution examined as many as 10 witnesses to establish the case against the petitioner and exhibited four documents. P.W.1 was the informant and victim; whereas P.W.2 was the sister-in-law of the informant, who was examined by the prosecution as the post-occurrence witness to whom the victim had first narrated the incident. P.Ws.4 & 5 were the seizure witnesses; whereas P.W.10 was the I.O. of the case. 4. P.W.1 has verbatim narrated the incident as mentioned in the F.I.R. Her version also corroborated with the evidence of P.W.2, the sister-in-law, who although was a post-occurrence witness, but the victim had narrated the incident to the said witness immediately after it happened. Therefore, the learned trial Court believed the versions of P.Ws.1 & 2 being the credible witnesses, those who have been unshaken, rather sustained the lengthy cross-examination. The defence has vehemently argued that the petitioner has been framed due to a previous enmity between the family of the victim and the petitioner, which was Page 4 of 11 apparent from the fact that the F.I.R. was lodged ten days after the alleged incident. The defence urged that the prosecution could not explain the delay in lodging the F.I.R. 5. The learned trial Court has dealt with this issue and, inter alia, returned the following finding: “However, learned defence counsel has submitted during his argument that there has been delay in lodging the F.I.R. but no explanation is froth-coming from the prosecution regarding such delay. In that respect, the informant herself has stated that her husband was working as a Security Guard at Bangalaore. After his return she filed the F.I.R. It is settled position of law that if the delay in lodging the F.IR. is properly explained such delay is not fatal to the prosecution. In this case while the modesty of a married women is in question, it is very natural that she would contact her husband and I find that the delay of 10 days in such type of cases is not fatal to the cause of prosecution of in the evidence of the victim remain unshaken. Learned defence counsel has pointed out the enmity between both the parties. He states that the enmity is admitted by one independent witness namely Banamali Giri. The said witness states during his cross-examination that there is enmity between the family of both the parties since 10 to 12 years. In view of the enmity learned defence counsel is praying to disbelieve the prosecution story. It has been hold in various decisions that enmity is a double edged blade, where false implication is possible due to enmity at the same time that gives rise to strong motive to commit the crime. Hence the enmity is not a ground to discard the evidence of prosecution of evidence rather it should be scrutinised carefully.” The defence has also argued that in the absence of an independent witness supporting the version of the prosecution, reliance was placed on Page 5 of 11 the evidence of P.Ws.1, 2 and 7, who were related, and on the background of the previous enmity between the two families, the prosecution story should not be believed. The learned trial Court has also dealt with that aspect of the matter and come to a conclusion that the statement of the victim is trustworthy and dependable. Therefore, the learned trial Court found the petitioner guilty of the commission of offences under Sections 448 and 354 of the IPC. However, due to lack of credible material to hold the charge under Section 506 of the IPC, the petitioner has been acquitted for the said charge. The learned trial Court sentenced the petitioner to undergo S.I. for a period of six months for the offence under Section 354 of the IPC and to pay a fine of Rs.1,000/-, and in default of payment of fine, to undergo S.I. for 15 days for the offence under Section 448 of the IPC. 6. The present petitioner, aggrieved by the judgment of conviction and order of sentence passed by the learned trial Court, had filed Criminal Appeal No.04 of 2011 in the Court of the learned Additional Sessions Judge, Rairangpur. The Appellate Court, vide its judgment Page 6 of 11 dated 01.08.2011, confirmed the judgment of conviction and order of sentence passed by the learned trial Court and dismissed the appeal. 7. Having failed in the appeal, the petitioner filed the present Criminal Revision assailing the judgment of conviction and order of sentence of the courts below. 8. Heard Mr. D.P. Dhal, learned Senior Counsel along with Mr. Kamalakanta Sethi, learned counsel for the petitioner, and Mr. B.K. Ragada, learned Additional Government Advocate appearing for the State. 9. The testimony of P.W.1 is impeccable and the said testimony found corroboration with that of P.W.2. The evidence of P.W.1 is a complete reiteration of the allegation made by her in the F.I.R. The defence primarily raised two issues. Firstly, the incident took place on 16.04.2005, whereas the F.I.R. was lodged on 25.04.2005. The delay of about ten days remained unexplained according to the defence. However, both the Courts below, by appreciating the evidence on record, concluded that the prosecution could explain the delay. The F.I.R. was belatedly lodged because the husband of the victim was away at Page 7 of 11 Bangalore for work purpose. After he returned home, the victim narrated the incident to him and both of them on the same day, lodged the F.I.R. Therefore, the Courts below have opined that conduct of the informant in waiting for her husband to return and then lodging the F.I.R. cannot be said to be unnatural by any means. The second issue raised by the defence is the false implication of the petitioner in the instant case as there was previous enmity between the family of the informant and the petitioner. That issue has also been appreciated by the Courts below. The appellate Court dealt with the same and returned the following finding: “9. Regarding prior enmity between the informant’s family and that of the appellant, a reading of the evidence of informant, reveals that the plea of enmity has been taken in general terms without referring to any particular incident. It is borne out from the evidence that there some sort of enmity between the two families since the past 2 to 3 years. If this be the case, then it was for the defence to show as to what was the immediate or proximate cause for the informant to harbour the intention of falsely implicating him. Thus, even accepting for the sake of argument only that there was some ill feeling between the two families for some time in the past, it does not necessarily mean that the same would induce a married lady to come forward with a false accusation involving her own modesty. This argument of the appellant, therefore, does not held good.” 10. I am in complete agreement with the findings recorded by the Courts below which are the culmination of proper appreciation of the Page 8 of 11 evidence brought on record by the prosecution. Therefore, I am not inclined to interfere with the impugned judgments in the present petition insofar as the conviction recorded by the Courts below against the petitioner for commission of offences under Sections 448 and 354 of the IPC is concerned. 11. Cumulatively, considering all the factors while maintaining the conviction of the accused for commission of offences punishable under Sections 354 and 448 of the IPC, I feel it appropriate to modify the sentence because the incident took place on 16.04.2005 and at that point in time, the petitioner was aged about 40 years and by now, 19 years have already lapsed. Since the informant, as well as the petitioner, have already settled in their lives separately and moved on, sending the petitioner to incarceration at this stage may not be appropriate, rather would be harshed. The petitioner, at the appellate stage, has prayed for the extension of the benefit of the P.O. Act. But the Appellate Court rejected the same, inter alia, stating as under: “13. Coming to the alternative contention that the trial court should have extended the benefit of the P.O. Act to the appellant, it is observed that having regard to the nature of the offences Page 9 of 11 affecting the modesty of a woman, the trial court was disinclined to extend the benefit of P.O. Act and sentenced the appellant to undergo Simple Imprisonment for a period of a 6 months only. This Court fully concurs with the reasoning of the trial court in such respect and is also of the opinion that the sentence of Simple Imprisonment of 6 months for the Offence u/s. 354 of I.P.C. and fine of Rs.1,000/- for the offence u/s. 448 of I.P.C. is just and proper in the facts and circumstances of the case and for securing the ends of justice. This Court is also not inclined to interfere with the sentence passed by the Trial Court.” 12. Therefore, I am of the considered view that the order on sentence given by the learned trial Court is not correct owing to the facts and circumstances of the present case. Hence, I am inclined to grant the benefit of the P.O. Act to the petitioner. Accordingly, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence, when called upon during such period, and in the meantime, the petitioner shall keep peace and good behavior and shall remain under the supervision of the concerned Probation Officer during the aforementioned period. Page 10 of 11
Decision
13. The Criminal Revision is partly allowed and accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th October, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Nov-2024 16:44:43 Page 11 of 11