Criminal Appeal No. 40 of 2005 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.315 of 2011 (In the matter of an application under Sections 401 & 397 of the Criminal Procedure Code, 1973) Bijaya Kumar Naik @ Jharia @ Bijaya Naik ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Prasanna Kumar Mishra, Advocate For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 18.06.2024 : Date of Judgment: 20.06.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 r/w Section 397 of Cr.P.C. is directed against the judgment and order dated 19.03.2010 passed by the learned Additional Sessions Judge, Nayagarh, Camp at Daspalla in Criminal Appeal No.40 of 2005, whereby the judgment of conviction and order of sentence dated 18.05.2005 passed by the learned Assistant Sessions Judge-cum-Chief Judicial Magistrate,
Legal Reasoning
Nayagarh in S.T. Case No.90/494 of 2003 has been confirmed. 2. The petitioner was subjected to prosecution in Gania P.S. Case No.30 of 2002 registered under Sections 376/511/506 of I.P.C. 3. The prosecution case in brief is that on 22.10.2002 at about 9 P.M., the complainant Krushna Chandra Swain, the father of the victim came to Gania Police Station and lodged a written report alleging therein that on 21.10.2002, at about 5 P.M., his daughter (the victim) had been to the river to take bath. At that time, Bijaya Naik @ Jharia (the present petitioner) finding her alone caught hold of her and made her lie on the ground with an intention to commit rape. Further allegation in the F.I.R. was that the petitioner also slept over the victim and attempted to commit rape on her. On hearing the cry of the victim, one Ulash Naik, who was taking water from the river rushed near her and on her protest, the petitioner left the place after giving threat to the victim. Page 2 of 11 4. On receipt of the written report submitted by the father of the victim, the OIC of Gania Police Station registered P.S. Case No.30, dated 22.10.2002 and directed the A.S.I. D. Muduli to take up the investigation. After completion of investigation, charge-sheet was submitted against the petitioner under Sections 376/511/506 of IPC. The learned trial court framed charges against the petitioner and he was put to trial. 5. To bring home charges, the prosecution had examined as many as nine witnesses and 3 documents were exhibited. Out of them, the informant was P.W.1 whose wife was P.W.2. P.W.8 was the victim while P.W.5 was the Medical Officer, who examined the victim on police requisition and P.W.9 was the Investigating Officer. P.W.3 was the eye-witness to the occurrence who immediately rescued the victim while others were the post-occurrence witnesses. On the other hand, the accused-petitioner had examined himself as D.W.1 and one more witness namely Bhikari Rout (D.W.2) in support of the defence plea. 6. The learned trial Court analyzed the entire evidence on record and found that the Petitioner was not guilty of the offences under Sections Page 3 of 11 376/511/506 of I.P.C, but found him guilty for the offence punishable under Section 354 of I.P.C. and sentenced him to undergo R.I. for a period of one year. 7. The judgment of conviction and order of sentence dated 18.05.2005 passed by the learned Asst. Sessions Judge-cum-Chief Judicial Magistrate, Nayagarh in S.T. Case No.90/494 of 2003 was called in question by filing Criminal Appeal No.40 of 2005 before the Court of the learned Additional Sessions Judge, Nayagarh, Camp at Daspalla, by the petitioner. 8. Since the petitioner has failed in his appeal, he has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 9.
Legal Reasoning
Heard Mr. P.K. Mishra, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 10. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. Page 4 of 11 11. The accused-petitioner stands charged for the alleged offence under Sections 376/311/506 of I.P.C. To bring home the said charges, the prosecution had examined as many as nine witnesses. P.W.1 was the informant, who is the father of the victim. P.W. 2 is the mother of the alleged victim. P.W.3, who had allegedly rescued the victim at the time of the incident, was also the eye-witness to the occurrence. P.Ws.4 and 6 were the ladies of the village before whom the victim had disclosed regarding the alleged occurrence soon after the incident took place. P.W.5 was the Doctor who had examined the victim, whereas P.W.9 was the Investigating Officer. P.W.8 was the victim in the present case. 12. P.Ws.4 and 6, the village ladies had not supported the prosecution case. By relying upon the testimonies of all the witnesses, the trial court came to the conclusion that the prosecution had miserably failed to bring home the charges under Sections 376/511/506 of I.P.C. against the accused-petitioner. However, went on to convict the petitioner for offence punishable under Section 354 of I.P.C. 13. The petitioner in his defence had stated that the informant, i.e., the father of the victim had taken grocery articles from his shop on credit Page 5 of 11 basis. Since he had demanded the money and the informant could not repay the same, he has been falsely implicated in the present case. The learned trial court by relying upon the testimony of P.W.8, the victim and P.W.3, the eye-witness to the occurrence had opined that the petitioner was liable for conviction for the offence punishable under Section 354 of I.P.C. Paragraph-9 of the judgment of the trial court deals with the reasoning for convicting the petitioner for offence under Section 354 of I.P.C., which reads as under: “9. The evidence of P.W.8, the victim is that the occurrence took place at about 5 P.M. at river Brutang, while she was taking her bath. According to her the accused came and caught hold of her and made her fall and sat over her. It also appears from the evidence of victim that she raised alarm as a result of which one Ulash Naik who was talking her bath in the said river, came to her rescue and after her arrival, the accused left the victim and ran away. From the evidence of victim it further appears that the witness Ulash Naik was taking her bath at a distance of 15 to 20 cubits from her and except Ulash Naik none else were present at the time of occurrence. The said Ulash Naik has been examined by the prosecution as p.w.3. From her evidence, I find that she has fully corroborated the testimony of the victim, p.w.8, and stated that on hearing the cry of the victim she went near her and found the accused Bijaya @ Jharia Naik to have caught hold of the victim who was lying on the ground. She further stated that on hearing her shout the accused left the victim and went away. From the allegation made in the F.I.R., marked Ext.1, it also reveals that due to intervention of Ulash Naik, the victim was rescued and the accused ran away from the spot. Thus, I find that the evidence of the victim (p.w.8) finds ample corroboration from the evidence of p.w.3 (Ulash Naik) and there is nothing on record to dis-believe the testimony of both the victim as well as p.w.3 to the effect that the accused on the Page 6 of 11 alleged date and time of occurrence caught hold of the victim and made her lie on the ground while she was taking her bath at river Brutang of village Mahukana. It is suggested by the defence to the victim that her father took grocery articles from the shop of the accused on credit and the accused demanded money for which a false case has been foisted against the accused. In support of such plea the defence has examined two witnesses including the accused as D.W.1. Both D.Ws.1 and 2 deposed that the informant took grocery articles worth of Rs.2,000/- on credit from the shop of the accused and in spite of his demand he did not pay back money and falsely filed the case through his daughter. It is admitted by D.W.1 the accused during cross-examination by the prosecution, that he has got accounts and documents to show that the informant took grocery articles from his shop on credit on 21.10.00. He further admits that he has got a list of grocery articles which were supplied to the informant on credit. But the defence has not filed any such list or accounts to show that in fact much prior to the occurrence the informant took the grocery articles from the shop of the accused and the accused made demand at any point of time to pay back his money. That apart no woman will ordinarily stake her reputation by levelling a false charge of this nature, which tends to soil her own chestity. Thus, on a careful scrutiny of the testimony of the victim and p.w.3, (Ullash Naik). I find that their evidence inspires confidence and there is no reason to discard their testimony. On a discussion, of the defence evidence I find that the plea taken by the accused is not a probable one.” Accordingly, the trial court had awarded a sentence of one year R.I. by a separate order. 14. The petitioner assailed the conviction and sentence order dated 18.05.2005. The appellate court by thorough analysis of the judgment and evidence on record dismissed the appeal. The appellate court was of the view that the testimony of victim, i.e., P.W.8 had sufficiently corroborated with the eye-witness P.W.3 count. Therefore, the evidence Page 7 of 11 of P.W.8 cannot be discarded. The appellate court further relied upon the testimony of P.Ws.1 and 2, who are the parents of the victim (P.W.8). Much emphasis was given on the fact that the victim had narrated the incident to her mother and thereafter to her father who in turn had informed the Police. P.W.1 in the F.I.R. had narrated the exact incident which was narrated to him by the victim. While dealing with the defence of the accused false implication due to past enmity, the appellate court has recorded as under: “(v) The truth of enmity is admitted by p.w.8-victim in cross- examination, but denied that it was due to demand of grocery price, by accused. Enmity is a double edged weapon. It can be the motive on the part of lender to create calamity for unpaid price in case of opportunity concerning debtor’s daughter, Such enmity for that cannot make the daughter’s testimony unreliable.” 15. I have gone through the entire evidence brought on record by the prosecution as well as the defence and analyzed the evidence to test the legality and sustainability of the judgments of the learned trial court and the appellate court. I am of the considered view that the conviction recorded by the court below for alleged offence punishable under Section 354 of I.P.C. against the petitioner is well reasoned and the appellate court has rightly upheld the said conviction. If the testimony of Page 8 of 11 P.W.8 is weighed vis-à-vis the evidence of P.W.3, there is no escape for the petitioner from the conviction for offence under Section 354 of I.P.C. Therefore, I am not inclined to interfere in this revision in so far as the recording of conviction against the petitioner by the courts below is concerned. 16. While awarding the sentence the trial court has taken into consideration the entirety of the facts and circumstances and gravamen of the offence and sentenced the petitioner to undergo R.I. for one year for the offence under Section 354 I.P.C. which is the minimum sentence prescribed for the offence. The prayer of the petitioner to extend the benefit of Probation of Offenders Act was turned down by the trial court. The sentence order reads as under: “14. Hearing on the question of sentence. Heard on the question of sentence. It is submitted on behalf of the convict that he being the first offender, a lenient sentence may be imposed on him. It is also submitted that the benefit of Probation of Offender’s Act may be extended in favour of the convict. Considered. The convict outraged the modesty of the victim finding her alone. In view of this, I feel that showing leniency to the convict is nothing but encouraging him to commit graver offence like rape and to spoil one more life of an innocent girl. Hence, I am not inclined to extend the benefit of Probation of Offender’s Act in favour of the convict. Accordingly, I sentence him to undergo R.I. for a period of one year for the offence punishable u/s 354 I.P.C. His Page 9 of 11 period of detention already undergone by the convict during trial be set of as per the provision of Section 428 Cr.P.C.” 17. I am of the considered view that the trial court is not correct in extending the benefit of Section 4 of the Probation of Offenders Act in the facts and circumstances of the present case. The petitioner is a first time offender and the incident had taken place way back in the year 2002. Therefore, the case of the petitioner is directly covered by the judgment of this Court passed in the case of Pathani Parida and another vs. Abhaya Kumar Jagadev Mohapatra, reported in 2012 (Suppl.-II) OLR – 469. 18. In view of the aforementioned, the conviction recorded by the courts below against the petitioner is confirmed, but instead of sentencing the petitioner to suffer incarceration, this Court directs that the petitioner be released under Section 4 of the Probation of Offenders Act, 1958 for a period of one year on his executing a 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. During the probation period the petitioner shall keep peace and maintain good Page 10 of 11 behavior and he shall remain under the supervision of the concerned Probation Officer during the aforesaid period.
Decision
19. The CRLREV is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 20th June, 2024/A.K. Kar, ADR-cum-Addl. Principal Secretary Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jul-2024 18:30:51 Page 11 of 11