Criminal Appeal No. 01 of 2004 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 21 of 2006 An application under Sections 401 of the Code of Criminal Procedure challenging the judgment and order dated 10.11.2003 of learned S.D.J.M., Nuapada in I.C.C. Case No.35 of 2001 (T.R. No. 907 of 2001) and the judgment and order dated 16.12.2005 of learned Additional Sessions Judge, Nuapada in Criminal Appeal No.01 of 2004. 1. Manu Rout 2. Jayaram Rout -------------- -versus- ..…. Petitioners State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. Abhisek Pradhan, Adv. on behalf of Mr. D.P. Dhal, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. S.S. Mohapatra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 13.03.2024 Savitri Ratho, J This Criminal Revision has been filed by the petitioners challenging the judgment dated 16.12.2005 passed in Criminal Appeal No. 01 of 2004 by the learned Additional District
Legal Reasoning
Judge, Nuapada dismissing the Appeal and confirming the judgment dated 10.11.2003 passed by the learned S.D.J.M., CRLREV No. 21 of 2006 Page 1 of 9 Nuapada in 1CC Case No. 35 of 2001, convicting the petitioners of the offences under Section 354 of the IPC, while acquitting them from the offences under Section 324 of the IPC and sentencing them to undergo simple imprisonment for three months under Section 354 of the IPC. PROSECUTION CASE 2. The prosecution allegation in brief is that on 08.05.2001 at about 9.00 AM, the complainant had gone to the village tank. When she was about to take a bath, both the petitioners came and pulled her saree and made her naked. They also attempted to rape her. When the complainant resisted, she was attacked with a knife by Petitioner No.1 Manu Rout. Petitioner No. 2 Jayaram Rout gagged her mouth. The complainant continued to struggle and was able to escape and when she raised alarm, her mother came to the spot. Seeing her mother, the accused persons fled from the spot. The complaint lodged FIR at the Police Station. The Police submitted final form stating that the occurrence had not taken place. Thereafter, the complainant filed a protest petition and the learned S.D.J.M., Nuapada took cognizance of offences under Section 341,354,324,34 of the IPC against the petitioners, and they stood trial charged for the said offences. CRLREV No. 21 of 2006 Page 2 of 9 DEFENCE PLEA 3. The plea of the petitioners was one of denial. WITNESSES 4. The prosecution examined three witnesses to prove its case and no witness was examined by the defence. P.W.1 is the complainant-victim. P.W.2 is her cousin sister and P.W.3 is her sister. No witness was examined by the defence. TRIAL COURT JUDGMENT 5. The learned Trial Court had framed four points for determination in the trial. It did not find sufficient evidence to make out the offence under Section 341 of the IPC against the petitioners and acquitted them from the said charge. The learned Magistrate accepted the evidence of P.W.1 and convicted the petitioners for offence under Section 354/34 of the IPC. The plea of enmity was not considered sufficient to discard the evidence of P.W.1. As regards the offence under Section 324 of the IPC, the learned Magistrate did not find sufficient evidence to prove the charge against the accused persons as no doctor had been examined to prove the allegation that P.W.1 had been assaulted with a knife CRLREV No. 21 of 2006 Page 3 of 9 by Petitioner No.1 on her left hand and acquitted them from the charge under Section 324/34 of the IPC. APPELLATE COURT JUDGMENT 6. The learned Appellate Court did not find any ground to interfere with the judgment of the learned trial Court. convicting the petitioners of the offence under Section 354/34 of the IPC and dismissed the appeal and confirmed the conviction and sentence. It specifically observed that enmity is a double-edged weapon and rejected the contention of false implication of the accused. The learned Appellate Court also held that non-examination of mother of the victim was not fatal to the prosecution and sole evidence of the victim was sufficient to convict the petitioners. SUBMISSIONS 7.
Legal Reasoning
Mr. Abhisek Pradhan, learned counsel submits that the impugned judgments are vulnerable, for the following reasons. i) The allegations against the petitioners are false ii) That mother of the complainant, who is an eyewitness has not been examined. iii) There is no evidence to make out the offence under Section 354 of the IPC against the petitioners. CRLREV No. 21 of 2006 Page 4 of 9 iv) As the learned Court below has disbelieved the evidence of the witnesses as regards commission of offence under Section 324 of the IPC. So, the same evidence could not have been relied upon to convict the petitioners of the offence under Section 354 of the IPC. 8. Mr. S.S. Mohapatra, learned Addl. Standing Counsel has supported the impugned judgments and stated that there is no ground for interference with them as the evidence of the complainant P.W.1 clearly establishes the commission of offence under Section 354 of the IPC against the present petitioners. The learned Courts have rightly held that as there is no evidence that her mother had seen the occurrence, her non-examination is not fatal to the prosecution case. He further submits that the plea of false implication due to enmity has been rightly discarded as enmity is a double-edged weapon and can be a motive for commission of the crime as well as the reason for falsely implicating a person. The evidence of P.W.1 has been rightly believed by the learned Courts below and there is no ground to set aside the impugned judgments. ORAL EVIDENCE 9. P.W.1-the victim has stated that when she had gone to the village pond to take a bath, near the ridge both the petitioners CRLREV No. 21 of 2006 Page 5 of 9 pulled her saree. As a result of she fell down. Then, Petitioner No.2 put his palm on her mouth, while petitioner No.1 dealt a chakhu blow on her left hand. She raised hallah and when her mother came to the spot, the accused persons ran away. In her cross-examination she has stated that she had previous enmity with the accused and that three persons had accompanied her to the bathing ghat. Her evidence has however not been shaken in cross-examination. P.W.2, who is a child witness has stated that she had gone to take a bath and the petitioners were there near the pond and while P.W.1 was about to take her bath, the petitioners pulled her saree and the petitioner No.2 placed his palm on her mouth, as a result of which she fell down and Petitioner No.1 assaulted her left arm and she raised hallah and mother of P.W.1 came to the spot. Seeing her, the petitioners fled from the spot. During cross- examination it has been elicited from her that she can not say what happened in the ghat where P.W.1 was taking her bath. P.W.3, who is the sister of P.W.1, has supported the evidence of P.W.1 stating that she had gone with P.W.1 to take a bath and the petitioners came there and pulled the saree of P.W.1 and she fell down. They raised alarm and when their parents came to the spot, the accused persons ran away. CRLREV No. 21 of 2006 Page 6 of 9 STATUTORY PROVISION 10. The provisions of Section 354 of IPC are extracted below, “Section 354- Assault of criminal force to woman with intent to outrage her modesty Whoever assaults or uses force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Section 354 of the IPC has been amended in the year 2013 and the punishment has been enhanced to a maximum of five years and a minimum sentence of one year has been prescribed as well as fine. ANALYSIS AND DISCUSSION 11. After careful perusal of the depositions of the three witnesses, I find that the learned Trial Court and the Appellate Court have disbelieved the allegation under Section 324 of the IPC as the evidence of P.W.1 regarding assault is not supported by P.W.3 and P.W.2 has stated in cross-examination that she has not CRLREV No. 21 of 2006 Page 7 of 9 seen the occurrence and no doctor had been examined to prove the injury. As regards the offence under Section 354 of the IPC, P.W.1 the victim has stated that when she had gone for a bath, the petitioners had pulled her sari making her naked. The evidence of P.W.1 is corroborated by the evidence of P.W.3. The contention of false implication has rightly been rejected by both the Courts as enmity is a double-edged weapon. That apart the “maxim falsus in uno falsus in omnibus” is not a mandatory rule of evidence followed in India. So, acceptance of evidence of P.W.1 regarding the offence under Section 354 of IPC while it has been disbelieved so far as offence under Section 324 of IPC and Section 341 of IPC concerned is not illegal. 12. As the impugned judgments do not warrant any interference, I find no reason to interfere with the conviction of the petitioners under Section 354/34 of the IPC and confirm the same. 13. The incident is of the year 2001. The counsel for the petitioners is unable to confirm if the petitioner had been arrested and remanded in custody during investigation in the year 2013. The lower Court record does not reveal that the petitioners had been arrested at any stage. But considering the fact that almost 23 years have elapsed since the date of occurrence and no minimum CRLREV No. 21 of 2006 Page 8 of 9 sentence had been prescribed for the offence of Section 354 of the IPC at that time of commission of the offence, I am inclined to modify the sentence from 3 months simple imprisonment to payment of fine of Rs.1,000/- each, in default to undergo simple imprisonment for one month. 14. The Criminal Revision is dismissed with modification in sentence. Orissa High Court, Cuttack. The 13th March, 2024. Subhalaxmi, Junior Stenographer. ……………………… (Savitri Ratho, J) Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 13-Jun-2024 18:12:16 CRLREV No. 21 of 2006 Page 9 of 9