The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 245 of 1992 (An Application under Section 374 of the code of Criminal Procedure) --------------- AFR Bana Bihari Sahoo ...… Appellant -Versus- State of Odisha .... Respondent Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : Mr. A. Mohanty, Advocate. For Respondent ( Amicus Curiae) : Mr. S.K. Mishra, Additional Standing Counsel for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28th July, 2023 SASHIKANTA MISHRA, J. The appellant has been convicted for the offences under Section 366 of IPC and Section 3(1) (xi) of the SC & ST (POA) Act as per judgment passed by learned Sessions Judge-Cum- Special Judge Sundargarh, Camp at Bonai on 17.06.1992 in S.T. No. 34 of 1992. He was sentenced to undergo R.I. for 7 years and to pay fine of Rs. 3,000/-, in default, to undergo Page 1 of 9 R.I. for 2 years for the offence under Section 366 IPC and R.I. for 3 years for the offence Section 3(1)(xi) of the SC & ST (POA) Act. 2. Prosecution case briefly stated is as follows; On 14.07.1991, one Magata Patra orally reported at the police station that his daughter ‘X’ (victim) had been married to one Kalakar Patra of village Dareikela about five months back. On 08.07.1991, his daughter and son-in-law had come to his house and on the next day, his son-in-law went back alone. On 11.07.1991, Magata Patra went to plough his field and his wife had gone to the forest. He returned at about 12 noon and asked about the victim to his younger daughter, Saraswati, who informed that in the morning the accused had come from Dareikela and informed the victim that her mother-in-law was serious and admitted to Bonai hospital and that her in-laws had asked her to come with him. Hearing this, the victim left home with the accused. Thereafter, the wife of the informant went to Dareikela and returned at about 4 P.M. to inform that the mother-in-law of the victim is well and that they had not sent the accused to their house. The informant and his wife searched for the victim in the house of their relatives and ultimately on Page 2 of 9 14.07.1991 in the morning, they were informed by one Dusasana Patra of Dareikela that the victim had returned and was sitting in front of the house of the accused. Hearing this, the informant and his wife went to the said village and found the victim sitting in front of the house of the accused. On query, she narrated that the accused had told her saying that her mother- in-law was serious and hospitalised and that her in-laws had asked her to come back. She further stated that hearing this she accompanied the accused but on the way he showed knife and cycle chain and took her towards Gurundia. He then kept her in the jungle for two days with an ill intention and also that he wanted to keep her with him. Thereafter, the accused fled away leaving the victim. Basing on the oral report, which was reduced to writing, Bonai P.S. Case No. 38 (4) of 1991 was registered under Sections 363/366 IPC followed by investigation. Upon completion of investigation, charge-sheet was submitted under the aforementioned Sections and also under Section 3 (1) (xi) of the SC & ST (POA) Act. 3. The plea of the accused one of denial. To prove its case, prosecution examined 10 witnesses of whom, P.W-8 is the victim, P.W-7 is the informant and her father, P.W-6 is her Page 3 of 9 mother, P.W-5 is her sister, P.Ws-2 and 3 are co-villagers of the informant, P.W-4 is a villager of Dareikela, P.W-1 is the Doctor, who examined the victim, P.W-9 is the initial I.O. and P.W-10 is the I.O., who submitted charge-sheet. Besides, prosecution proved nine documents. Defence did not examine any witness from its side but marked a document as exhibit. 4. Learned Sessions Judge examined the evidence in detail placing reliance on the version of the victim, informant, her mother and her sister. As such, learned Sessions Judge was convinced that the accused had falsely enticed the victim without her consent towards Gurundia jungle for immoral purpose i.e. to force her for illicit inter-course fully knowing that she was a married lady. The accused was thus held guilty of the offence under Section 366 of IPC. Learned Sessions Judge however, did not find any evidence to prove the offence under Section 376 of IPC. The offence under Section 3 (1) (xi) of the SC and ST Act however, was held to be proved. The appellant was thus convicted and sentenced as aforesaid.
Legal Reasoning
yet, it is settled law that the conduct of the victim does have a significant role to play while assessing the veracity of her version. In this regard, this Court finds from the victim’s version that the accused allegedly kept her in a jungle for three days and thereafter left her. When she returned to her matrimonial home, she was prevented entry by her in-laws, specifically on the ground that she had spent 2-3 days in the jungle with the accused (Chasapila). Nothing is forth-coming from the evidence as to the source of knowledge of her in- laws of the victim in this regard. Moreover, if they were aware that the victim was in fact moving around with the accused in the jungle for 2-3 days, what was done about it? Obviously they had taken it as a case of wilful elopement. The further Page 6 of 9 evidence of the victim that she sat in front of the house of the accused is also highly significant which leans more towards the theory that it was a case of elopement gone wrong for some reason or the other. There is not even a whisper in the version of the victim as to what steps she had taken to protect herself from the accused or to escape from his clutches. There are other discrepancies also inasmuch as according to the I.O. the victim had stated before him that she had gone to the hospital and not finding her mother in- law she had gone to the house of her Mousi (Aunt) at Kantajore but it is the consistent case of the prosecution that she was found sitting in front of the house of the accused by the I.O. The evidence of the other witnesses, namely P.Ws. 5, 6 and 7 as also of P.Ws.2 and 3 is, more or less on the same lines as the victim, which according to learned Sessions Judge has lent corroboration. However, from what has been discussed before, this Court is unable to place any reliance on their versions. It is also difficult to believe that she had not stated about the incident as the police directed her not to do so before the Magistrate. So overall, what transpires from the evidence is, the accused and the victim had spent 3 days inside the Gurundia jungle. Thereafter the victim was found Page 7 of 9 sitting in front of house of the accused. This conduct of the victim appears to be strange and therefore, difficult to believe because there is no plausible reason as to why she would do so. If it was to protest against the alleged misdemeanor of the accused, the same could have been done either by informing her husband, or her parents or by reporting the incident at the Police Station himself. It does not stand to reason that instead of lodging a complaint, the victim, who was already married, would choose to sit in front of the house of the accused. This again suggests that she had a relationship with the accused but the latter was probably not interested in taking it further and therefore, it was an attempt made by her to come out with such false accusation goaded perhaps by her own parents as the relationship had become public and could have attracted social stigma. These are significant aspects not considered at all by learned Sessions Judge while mechanically relying upon the evidence of the victim. 9. From the foregoing narration, this Court is left with no doubt that the victim’s version as that of the other witnesses are inherently unreliable and the story projected appears so improbable and difficult to believe that it would not be safe to accept the same. Page 8 of 9 10. Thus, from a conspectus of the analysis of the evidence on record and discussion made hereinbefore, this Court finds that the evidence led by prosecution is not credible or cogent enough to bring home the charge under Section 366 of IPC against the accused. Such being the case the offence under Section 3 (1) (xi) of SC & ST act must also fall to the ground. 11. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant being on bail, his bail bond be discharged. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 28th July, 2023/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 01-Aug-2023 11:13:44 Page 9 of 9
Arguments
5. Heard Mr. A. Mohanty, learned Amicus Curiae and Mr. S. K. Mishra learned Additional Standing Counsel for State. Page 4 of 9 6. Mr. Mohanty has assailed the impugned order of conviction on the ground that the victim’s version cannot be believed at all since the same is entirely an improvement upon her earlier version given to the police during investigation. Mr. Mohanty further argues that when the same evidence was disbelieved by the Court below regarding the offence under Section 376 of IPC, the same could not have been relied upon to hold that the other offences were proved. Finally, Mr. Mohanty would argue that even otherwise the prosecution case is beset with serious doubts and improbabilities so as to be believed. 7. Mr. S.K. Mishra, learned State counsel, on the other hand has supported the findings of the Court below by contending that even though the evidence on record did not support the theory of rape, yet it clearly proves that the accused deceitfully took away the victim from her house on false pretext and kept her in a jungle for two days for immoral purpose. Therefore, the offence under Section 366 is clearly proved. Further, there is no dispute that the victim belongs to a Scheduled Caste while the accused, to the General Caste and therefore, the offence under Section 3 (i) (xi) 3 of the SC & ST Act is automatically proved. Page 5 of 9 8. In order to appreciate the rival contentions, this Court would like to note at the outset that there is no mention of any sexual offence being committed by the accused in the FIR or in the statement of the victim recorded under Section 161 of Cr.P.C. Same is the case with her statement recorded under Section 164 of Cr.P.C. Thus, whatever the victim stated in Court is entirely an improvement upon her earlier version. It is true that the principle of “Falsus in Uno, Falsus in Omnibus” has no place in Indian criminal jurisprudence