The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.18 of 2003 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 6th January, 2003 passed by the learned Chief Judicial Magistrate-Cum-Assistant Sessions Judge, Angul in S.T. Case No.204 of 2001 (Trial Case No.35 of 2001). Tapan Kumar Mohanty …. Appellant ---- State of Orissa …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.S.P. Mishra, Sr. Advocate S.K. Mishra, S. Nanda, M.R. Dash (Advocates) For Respondent - Mr.S.K. Nayak Additional Government Advocate CORAM MR. JUSTICE D.DASH Date of Hearing : 20.05.2024 : Date of Judgment : 21.06.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 6th January, 2003 passed by the learned Chief Judicial Magistrate- Cum-Assistant Sessions Judge, Angul in S.T. Case No.204 of 2001 CRLA No.18 of 2003 Page 1 of 11
Legal Reasoning
(Trial Case No.35 of 2001) arising out of G.R. Case No.336 of 2003 corresponding to Angul P.S. Case No.44 of 2001 pending on the Court of the Learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Angul. By the impugned judgment of conviction and order of sentence, the Appellant (accused) has been convicted for commission of the offence under section 376 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo rigorous imprisonment for eight (8) years and pay fine of Rs.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for three (3) months for commission of the said offence. The Trial Court has further directed that the fine amount, if realized, be paid to the prosecutrix. 2. Prosecution Case:- The Informant (Victim-P.W.2), since the year 1994, was serving at Jevan Seva Office, Angul. About six months before the incident, the Appellant (accused), who had a cassette shop at Angul Bus Stand, had gone to the said office. The accused, coming in contact with the victim (P.W.2), told her that she would become his God sister from that time onwards. On one occasion, the Appellant (accused) had taken the victim to his house and he himself twice visited the house of the victim (P.W.2). CRLA No.18 of 2003 Page 2 of 11 It is stated that on 23.03.1995, during noon hours, when the victim (P.W.2) was waiting at Angul Bus Stand to board a bus in order to go to her house, the accused arrived there and told her that he would drop her in the house. Accordingly, the accused took the victim (P.W.2) in his scooter. It was around 1.00 p.m., on the way near Village-Kumursingha hill, the accused stopped his scooter. When the victim asked him as to why he did so, the accused told her that he would be going to attend call of nature. It is alleged that soon thereafter, the accused caught hold of the victim and forcibly dragged her towards the jungle with ill intention. The victim, therefore, cried and requested him not to behave with her in that way. It is stated that the accused then told that he would marry her and so saying, the accused dragged her behind the bushes forcibly and making her lie on the ground facing upward, molested her despite protest from the side of the victim. The accused then lifting the wearing apparels of the victim and removing the undergarments, had sexual intercourse. The victim, then raised hullah and cried. It is next stated that the accused thus, having committed rape, told the victim that she need not be worried as he would marry her and asked her not to disclose the incident to anybody. The accused then took her on his scooter and left her near her house when it was around 3.00 p.m. and therefrom the accused left. The victim, out of shame, did CRLA No.18 of 2003 Page 3 of 11 not disclose the incident to anybody immediately but as she felt pain, after some time, she narrated the incident before her mother (P.W.1). On the next day, the victim (P.W.2) did not feel well and she remained confined to her house. On the next day, having gone to the office, the victim disclosed the incident before her office staff and then she reported the matter in writing with the Officer-in-Charge (O.I.C.) of Angul P.S. The O.I.C., on receiving the above written report, treated the same as FIR (Ext.1) and upon registration of the criminal case, took up the investigation. The I.O. (P.W.11), in course of the investigation, examined the Informant (Victim-P.W.2) and other witnesses and recorded their statements under Section 161 Cr.P.C, sent the victim for her medical examination and on completion of the investigation, submitted the Final Form placing this accused to face the trial for commission of the offence under section 376 of the IPC. The learned S.D.J.M., having taken cognizance of the said offence, after observing formalities, committed the case of the Court of Sessions. That is how the Trial commenced after framing of the charge for the offence under section 376 of the IPC against the accused. That is how the Trial commenced. 3. During Trial, the prosecution, in total, has examined twelve (12) witnesses. Out of whom, the important are the victim (P.W.2) Page 4 of 11 CRLA No.18 of 2003 and her mother (P.W.1). The Doctor, who had examined the victim (P.W.2), has been examined as P.W.12 whereas the I.O. is P.W.11. The prosecution, besides leading the above evidence, has proved the several documents, which have been admitted in evidence and marked Exts.1 to 9. Out of the same, the FIR is Ext.1, the medical report is Ext.8 and Ext.9 is the report of the Chemical Examiner. 4. The Trial Court, upon examination of the evidence and their evaluation, has recorded the finding that the prosecution has established its case under section 376 of the IPC against the accused beyond reasonable doubt. Accordingly, the Appellant (accused) has been convicted and sentenced as afores-stated.
Legal Reasoning
5. Mr.S.P. Mishra, learned Senior Counsel for the Appellant (accused), at the beginning, placing the depositions of the victim (P.W.2) as also simultaneously the evidence of her mother (P.W.1), submitted that even accepting the evidence of P.W.2 in toto, the accused ought not to have been held guilty of commission of the offence under section 376 of the IPC as the facts and circumstances emanating from the evidence as also the medical evidence could clearly reveal that it was a consensual sex between the victim and the accused, which has been given the CRLA No.18 of 2003 Page 5 of 11 colour of rape for some reason or other being developed in the mind at a later point of the time. He submitted that the evidence of P.W.2, being tracked right from the beginning as to how they together established the relationship, visited each other’s house and other places too and more particularly, the narrative of the incident of that particular day, would leave no room of doubt that it was not at all a case of forcible sexual intercourse upon the victim (P.W.2) at the instance of the accused. He also pointed out some exaggeration in the evidence of P.W.2 as well as the later developments. In view of all these above, he submitted that the solitary testimony of P.W.2 cannot form the basis of conviction of the Appellant as inherent improbabilities surface in her evidence. Accordingly, he urged that the judgment of conviction and the order of sentence passed against the Appellant (accused) cannot be sustained and as such, are liable to set aside. 6. Mr.S.K. Nayak, learned Government Advocate for the Respondent-State, while supporting the finding of guilt against the accused as has been recorded by the Trial Court, submitted that the evidence of the victim (P.W.2), when read as a whole, would inspire confidence in mind as regards the role played by the accused and the act done by him upon the victim that it was totally against her consent and there was no approval at all to the same from the side of the victim (P.W.2). He, therefore, urged that CRLA No.18 of 2003 Page 6 of 11 the judgment of conviction and the order of sentence are well in order. 7. Keeping in view the submissions made; I have carefully read the impugned judgment of conviction and have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.12). The documents admitted in evidence from the side of the prosecution have also been gone through. 8. The case of the prosecution mainly centers around the evidence of the P.W.2, who is none other than the victim and she had lodged the FIR (Ext.1). The incident, having taken place on 23.03.1995, this FIR (Ext.1) has been lodged on 25.03.1995. It has been stated by P.W.2 in the FIR (Ext.1) that on that day and time, when she was standing on the Bus Stand in order to board a bus to go to her house, the Appellant (accused) reached there. During evidence, it has been stated by the victim (P.W.2) that when she was taking rest inside the rest waiting room at Angul Bus Stand and waiting for the bus to go to her village, the accused arrived there. It being a Bus Stand and busy locality, the prosecution has not examined any witnesses in support of the fact that the accused had gone there and had talked with the victim and that thereafter, he brought her in his scooter, when it is not the case of the prosecution nor the victim that at that point of time, it was the CRLA No.18 of 2003 Page 7 of 11 victim (P.W.2), who alone was there and none-else. Be that as it may, it has been stated by the victim that the accused, having arrived there, told her that he would leave her in her house by carrying her in the scooter and the accused took her on the scooter. It is not said that the victim was taken by force and then they travelled in the scooter being driven by the accused. This reveals that the victim, receiving the request of the accused, immediately accepted the same and followed the accused by sitting on his scooter. Her further evidence is that she was then taken by the accused near the hill inside the forest and there when the victim asked the accused as to why she had been taken there, the accused told her that he would go to pass urine and thereafter, it is said that the accused dragged the victim forcibly near the hill side and committed rape on her against her will and without consent. This very version of the victim (P.W.2) that the accused forcibly dragged the victim and committed rape upon her against her will and without her consent somehow appears to be improbable when the conduct of the victim is traced. The victim (P.W.2), having found herself to have been taken near the hill side has not even attempted to escape nor even had raised any hullah or cry and when he says that she was dragged and then raped, it is not stated that up to how much distance, she was dragged and nothing more is also specifically stated as regards CRLA No.18 of 2003 Page 8 of 11 the last part of the incident. When she has stated that the accused committed rape upon her, she does not state to have shown any resistance whatsoever. If such incident took place on the hill side, it is normally expected that the victim since it is without her consent would sustain some external injuries on her body and so also the accused, being so proceeded ahead despite such resistance. The Doctor, who has examined the victim, has been examined as P.W.12. She (P.W.12) says to have noted no such external injury on the body of the victim (P.W.2). She has also not marked any such injury on the private part except litter tenderness in the clitoris when the vaginal canal was admitting two fingers. It has been stated by her that she had noticed no such sign or symptom of rape. The more interesting part of the evidence of the victim (P.W.2) is that after the incident, the accused took her in his scooter and left her at a little distance from her house. This is, however, not receiving support from the evidence of P.W.1, who is none other the mother of the victim. She has stated that around 12.00 to 1.00 p.m., the accused left her daughter (victim-P.W.2) in their house. It has also been stated by her that the accused took water in their house and talked with her (P.W.1) for about half an hour and left the house by collecting some drum sticks. During all these period, nothing has been CRLA No.18 of 2003 Page 9 of 11 stated by the victim to P.W.1 about the occurrence the P.W.1, being the mother of the victim, states to have marked any such sign or symptom with P.W.2, who as per her evidence, had been raped shortly before by the accused. The mother (P.W.1) also does not stated to have marked any such abnormal feature or behavior or expression of the accused at the time when after the incident, had gone to their house. This part of evidence of P.W.1 appears to have been purposely suppressed by the victim so as not to bring her silence to affect her allegation against the accused in any manner. The accused was in visiting terms to the house of the victim. They had acquaintance and relationship prior to such incident. The victim immediately accepting the request of the accused went with him in cumulatively viewing all these, inherent improbabilities are found to be thus appearing in the evidence of the victim when she does not state to have immediately disclosed the incident to her mother (P.W.1) and at the same time, she does not state to have been given any threat by the side of the accused or that the accused had put her on fear of any fatal consequences for telling the same. In view of all the aforesaid discussion of the evidence, this Court finds that it would be hazardous to accept the solitary testimony of the victim (P.W.2) to base conviction in completely ruling out the possibility of consensual sex so as to say that the CRLA No.18 of 2003 Page 10 of 11 accused had committed the sexual intercourse upon the victim (P.W.2), who was then aged about 19 years without her consent. 9. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 6th January, 2003 passed by the learned Chief Judicial Magistrate-Cum-Assistant Sessions Judge, Angul in S.T. Case No.204 of 2001 (Trial Case No.35 of 2001), are hereby set aside. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 27-Jun-2024 12:13:52 CRLA No.18 of 2003 Page 11 of 11