The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO. 554 of 2012 (An appeal U/S 374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Sri P.C. Dash, Addl. Sessions Judge, Kuchinda, Sambalpur in S.T. Case No. 21 of 2009 arising out of G.R. Case No. 473 of 2006 corresponding to Kuchinda P.S Case No.204 of 2006 of the Court of S.D.J.M, Kuchinda). Himadri Bagar … Appellant State of Orissa … Respondent -versus- For Appellant For Respondent : Mr. B. Sahoo, Advocate : Mrs. S. Pattanaik, AGA CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING : 20.11.2023 DATE OF JUDGMENT: 04.12.2023 G. Satapathy, J. 1. This appeal assails the judgment of conviction passed on 18.08.2012 by the learned Additional Sessions Judge, Kuchinda in S.T. Case CRLA No. 554 of 2012 Page 1 of 18 no. 21 of 2009 convicting the appellant for offences punishable U/Ss. 493/376 of the Indian Penal Code, 1860 (In short the 8IPC9) and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short the 8Act9) and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (Rupees ten thousand only), in default whereof, to undergo further imprisonment for one year on each count. The learned trial Court, however, by the aforesaid judgment has also acquitted the Appellant of the charge U/S. 506 of IPC. An overview of prosecution case: 2. On 18.11.2006 at about 4 P.M., the victim lodged an F.I.R. against the convict under Ext. 4 before the I.I.C., Kuchinda P.S. stating therein that she was in courtship with the appellant preceding three years by keeping physical relationship and they were living as husband and CRLA No. 554 of 2012 Page 2 of 18 wife in Bonai area and thereafter, they shifted to village Kansar, but after staying there for two days at Kansar, the appellant went away by leaving her and she, thereafter, returned back to Kuchinda by a bus. On alighting from the bus, the middle brother of the appellant namely Dambaru Bagar asked her to go to her house on the next day. He further threatened her to kill, if she disclosed the incident before anybody including the Police. Since she belonged to <Kisan= by caste and they being <Gouda= by caste, no one can harm them. On this issue, there was a village meeting in which the appellant accepted to marry the victim at Court, but later the appellant refused to accept the victim as his wife. Basing upon the above information under Ext.5, the I.I.C., Kuchinda P.S. P.W.7-Narayan Nayak registered Kuchinda P.S. Case No. 204 of 2006 and took up the preliminary investigation of the case by examining the victim, but on the next CRLA No. 554 of 2012 Page 3 of 18 day, P.W.7 handed over the charge of investigation to D.S.P., Sambalpur P.W.8- Dayanidhi Gochhayat, who after examining the father of the victim and two other witnesses, handed over the charge of investigation on
Legal Reasoning
22.05.1997 to D.S.P., Sambalpur, P.W.9- Srikant Kumar Mishra on his transfer and accordingly, P.W.9 proceeded with the investigation and arrested the appellant, obtained the caste certificate of the victim and the appellant. As usual, on completion of investigation, P.W.9 submitted charge sheet against the appellant for offences U/Ss.493/376/506 of the IPC and Section 3(2)(v) of the Act, under which cognizance was taken and the case of the appellant was committed to the Court of Sessions. On receipt of record of the case upon appearance of the appellant and finding ground for presuming the appellant to have committed the offences, the learned Addl. Sessions Judge, CRLA No. 554 of 2012 Page 4 of 18 Kuchinda framed charge against the appellant for aforesaid offences and this is how the trial commenced in this case. 3. In support of the charge, the prosecution examined PW Nos. 1 to 9 and exhibited six documents vide Ext. 1 to 6 in evidence as against no evidence whatsoever by the defence. Of the witnesses examined, PW 1 & 4 are the cousins of victim-cum-PW6, whereas PW 2 & 3 are the Doctors, PW5 is the scribe, whereas PW 7 to 9 are the three IOs. 4. The plea of the appellant convict in the course of trial was denial simplicitor and false implication. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court while acquitting the convict-appellant for offence U/S. 506 of IPC convicted him for offences U/Ss. 493/376 of IPC and Sec. 3(2)(v) of the Act by CRLA No. 554 of 2012 Page 5 of 18 mainly relying upon the evidence of victim and her cousins. 6. In assailing the impugned judgment of conviction and order of sentence, Mr. B. Sahoo, learned counsel for the appellant has submitted that the evidence being wholly deficient in bringing home the charge, the learned trial Court had grossly erred in convicting the appellant because the victim in her evidence had clearly stated that she had love affairs with the appellant for last three years and it, thereby, appears to be a case of consent and in a case of consensual relationship, the age of the victim is very much important, which in this case her age was more than the age of discretion and, therefore, the conviction of the appellant is unsustainable in the eye of law. It is further submitted that to attract the charge U/S 3(2)(v) of the Act, the prosecution is obliged to establish through legally admissible evidence that the offence under IPC was in fact CRLA No. 554 of 2012 Page 6 of 18 committed against the victim on the basis of her caste as <Scheduled Caste or Scheduled Tribe= and unless this fact is established by the prosecution, no offence under the Act is made out, since the object behind the Act is to protect the person belonging to such caste from any offence being committed upon them only because of their caste, but in this case, the learned trial Court after concluding the appellant to have committed offence of rape, had further convicted the appellant for offence U/S 3(2)(v) of the Act and imposed the enhanced punishment of imprisonment for life by ignoring the fact that no offence under the Act is made out against the appellant. In summing up his argument, learned counsel for the appellant has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence. On the other hand, Mrs. S. Pattanaik, learned AGA has, however, supported the CRLA No. 554 of 2012 Page 7 of 18 impugned judgment and she has inter alia submitted that the evidence of victim has clearly established the offence of rape against the appellant and thereby, the appellant belonging to general caste having committed an offence U/Ss 493/376 of the IPC, punishable with imprisonment for 10 years more has accordingly been convicted for offence Under Section 3(2)(v) of the Act and thereby, the conviction and sentence of appellant being founded on sound principle of law calls for no interference in this appeal. It is accordingly, prayed by the learned AGA to dismiss the appeal. 7. After having bestowed a careful and anxious consideration to the rival submissions and on going through the impugned judgment meticulously so also the evidence on record extensively, it appears that in a case of this nature, the evidence of victim is very much important. The victim in this case being examined CRLA No. 554 of 2012 Page 8 of 18 as P.W.6 had testified in the Court that the accused loved her and stated to marry her and maintained physical relationship with her. The above evidence clearly suggests that the appellant had not married the victim at the time of occurrence. The evidence of victim further transpired that she belonged to <Kisan= community and his(appellant) family members may not accept her, but the accused convinced her that he would accept her as his wife. The aforesaid piece of evidence further invigorates the earlier facts that the victim was not the wife of the appellant. Additionally, it was also stated by the victim in her evidence that since the accused had kept physical relationship with her assuring to marry her, she became pregnant for two months and while they were staying at Lodgepada at Kuchinda, he got her pregnancy washed through Doctor Renubala, who was not examined by the prosecution and, thereafter, the accused left her CRLA No. 554 of 2012 Page 9 of 18 at her father9s house. On a thorough and plain reading of the evidence of victim, it would only go to disclose that the accused-appellant had kept physical relationship with her on the assurance of marriage, but the victim herself had stated in her evidence that she was aged about 19 years on the day of recording of her deposition in the Court, and the occurrence according to her took place around four years back as on the date of deposition which would only give an inference of the age of the victim to be 15 years at the time of occurrence, but the same may not be conclusive one to arrive at a finding without any further evidence. 8. On reverting back to the evidence of the doctor with regard to age of the victim, it appears that P.W.2, the doctor had stated in her evidence that her (victim) age was found to be 15 to 18 years and therefore, if the victim9s age was 15 to 18 years on the date of her examination, which CRLA No. 554 of 2012 Page 10 of 18 took place on 03.07.2007 and F.I.R. being lodged on 08.11.2006, the age of the victim at the time of occurrence would be more than 16 years which was the age of consent at the time of occurrence of the offence. Besides, the evidence of P.W.2 also disclosed that there was no sign or symptom of termination of any pregnancy of the victim which clearly belies the evidence of victim for getting herself to be pregnant for two months at the time of lodging of FIR for the physical relationship with the appellant in the past. 9. One of the cousins of the victim was examined as P.W.1, who had stated in his evidence that the accused kidnapped the victim girl about three years back when she was aged about 16 years, which also supports the defence in respect of the age of the victim at the time of occurrence to be 16 years or more. In this case, the prosecution had not examined the parents of the victim to establish the age of the victim CRLA No. 554 of 2012 Page 11 of 18 precisely. Besides, a comparative reading of the evidence of P.W.6 and that of I.O.-P.W.7, it would be found that the evidence of the victim is full of contradictions and the contradictions appearing in the evidence of victim were proved by the defence and the victim had contradicted her evidence on material point. However, on going through the impugned judgment, it is noticed that the learned trial Court had considered the victim to be minor being under the age of 16 years, but on a careful scrutiny of evidence on record, nowhere it appears that the prosecution had ever established that the victim was aged about less than 16 years as on the date of occurrence inasmuch as the victim herself had stated to be 19 years on the date of her deposition, but in the F.I.R., it was stated by her to be 17 years. Besides, the victim had not stated specifically as to when the appellant took her with him and kept her for seven months. Law of criminal trial never CRLA No. 554 of 2012 Page 12 of 18 admits any gap in the prosecution version, rather the prosecution has to firmly establish the allegations made against the offender and a person cannot be convicted on surmise, conjecture or assumptions, but the learned trial Court without any analysis of evidence, had considered the victim to be aged about less than 16 years at the time of occurrence, which in the circumstance appears to be erroneous. 10. Further, the learned trial Court had taken into consideration the evidence of P.W.4 to consider that the victim was given impression to be the married wife of the appellant because P.W.4 had stated in his evidence that the appellant had married victim at Niktimal Shiva temple putting vermillion on her head and took her to Badbil to keep her as his wife, but the victim had never stated such fact in her evidence before the Court. It is quite astonishing that the learned trial while subscribing this view had CRLA No. 554 of 2012 Page 13 of 18 analyzed the evidence the P.Ws. 1 and 4 by observing that the victim had narrated the entire incident before her cousins P.Ws.1 and 4, but when the victim had not stated that the accused married her by putting vermillion before the God, the learned trial Court should not have taken into consideration of such evidence in isolation with the evidence of the victim by only reading the evidence of P.W.4, whose evidence was at best hearsay evidence. It is also quite unacceptable in absence of any evidence that the convict- appellant without marrying the victim as per their caste and custom had by deceitful way made her to believe that she was his married wife and accordingly, cohabited with her. A careful glance of the evidence on record including that of the victim, nowhere such fact was forthcoming because the victim had never sated that the accused by way of deceitful means had made her to believe that she was his married wife, but she CRLA No. 554 of 2012 Page 14 of 18 had stated in her evidence that the accused on the assurance of marriage kept physical relationship with her inasmuch as her testimony in different paragraphs inter-alia only revealed that the appellant <stated to marry her= or <assured to marry her= and the evidence of pregnancy as stated by the victim was not supported by the medical evidence. It is, therefore, very clear in the circumstances that the offence U/S 493 of IPC was clearly not made out against the appellant. 11. On a re-appreciation of evidence, one thing would emerge, if we take into consideration the evidence of victim to be true that the relationship between the appellant and the victim was clearly in the nature of consensual relationship, but the prosecution had failed to establish the age of the victim to be under 16 years, which was the age of the consent at the time of occurrence, rather on analysis of the CRLA No. 554 of 2012 Page 15 of 18 evidence on record, the victim was found to be more than 16 years at the time of occurrence of the offence and thereby, the offence U/S 376 cannot be attracted against the appellant and according to clause-Sixthly to Section 375 of the IPC, the offence of rape was said to have been committed at the relevant time even with the consent of the victim, when she was under 16 years and therefore, the offence U/S 376 is also not made out against the appellant. Moreover, the offence under the Act can only be attracted in this case, had the offence being committed against the victim on the ground that she is a member of Scheduled Caste or Scheduled Tribe, but there is absolutely no evidence to infer such fact. Even otherwise, when the main offence under Sections 493/376 IPC punishable with imprisonment for more than 10 years are not attracted or made out against the appellant, he cannot be convicted for offence U/S 3(2)(v) of the Act and thereby, the CRLA No. 554 of 2012 Page 16 of 18 conviction of the appellant for any offence is unsustainable in the eye of law. 12. A careful reappraisal of evidence on record vis-(cid:224)-vis the impugned judgment of conviction, this Court does not find that the prosecution had established its case against the appellant beyond all reasonable doubt for any offence and, therefore, this Court does not find any justification to concur with the finding arrived at by the learned trial Court, rather the conviction of the appellant being unfounded is unsustainable in the eye of law. 13.
Decision
In the result, the appeal stands allowed on contest. Consequently, the impugned judgment of conviction and order of sentence passed on 18.08.2012 by the learned Additional Sessions Judge, Kuchinda in S.T. Case no. 21 of 2009 are hereby set aside. CRLA No. 554 of 2012 Page 17 of 18 14. Since the appellant is on bail upon appeal, his bail bonds stands cancelled and he is discharged of the obligation of the bail bonds. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 18:26:35 CRLA No. 554 of 2012 Page 18 of 18