The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV NO.442 OF 2021 (From the judgment dated 5th October, 2021 passed by learned Addl. Sessions Judge, Champua, in Crl. Appeal No.17/2017 (S.T. Case No.4/110 of 2016-15) Achyuta Singh … Petitioner -versus- State of Odisha and another … Opp.Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.Ramakanta Pradhan, Advocate -versus- For Opp.Paty No.1: Mr.S.K.Mishra Addl. Standing Counsel For Opp.Paty No.2: Mr. Julu Kansama, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 11.1.2023. CRLREV No.442 of 2021 Page 1 of 14 Sashikanta Mishra,J. In the present revision, the Petitioner questions the correctness of the judgment passed by learned Addl. Sessions Judge, Champua in Crl. Appeal No.17 of 2017 whereby the judgment of conviction and sentence passed by learned Asst. Sessions Judge, Champua in S.T. Case No.4/110 of 2016-15 was
Legal Reasoning
confirmed. As per the said judgment, the Petitioner was convicted for the offence under Section 376 of I.P.C. and was sentenced to undergo R.I. for a period of 7 years and to pay a fine of Rs.5,000/-, in default to undergo further R.I. for six months. 2. The prosecution case, in brief, is as follows; On 25th July, 2012 an F.I.R. was lodged by the prosecutrix before the I.I.C. of Champua P.S. stating therein that she was in love with the accused for the past four years and the accused had kept physical relationship with her many times on the assurance of marriage. As a result, she became pregnant and gave birth to a female child. The accused allegedly absconded from the village just before birth of the CRLREV No.442 of 2021 Page 2 of 14 child. It is further stated that the matter was not reported earlier as the prosecutrix hoped that the accused would marry her, but as he did not, the report was lodged. This led to registration of Champua P.S. Case No.77 dated 25th July, 2012 under Sections 376/417 of I.P.C., followed by investigation. Upon completion of investigation, charge sheet was submitted against the accused in the aforementioned offences and the accused was put to trial. 3. The accused took the plea of denial. 4. To prove its case, the prosecution examined 16 witnesses including the prosecutix as P.W.4. P.W.,2 is the father of the prosecutrix, P.W.5 is her mother, P.W.15 is the Doctor, who examined the victim. PO.W.13 is the I.O., P.W.,16 is the Headmaster of the School in which the victim was initially admitted and other witnesses are occurrence and seizure witnesses. In addition, the prosecution exhibited 9 documents. CRLREV No.442 of 2021 Page 3 of 14 The defence did not adduce any evidence either oral or documentary. 5. After considering the evidence on record, the trial court found that the prosecutrix was a consenting party to the sexual intercourse, but in view of the fact that she was minor at the relevant time, such consent is of no consequence. The trial Court further negatived the contentions advanced by the defence regarding unexplained delay in lodging of F.I.R. and the apparent contradictions in the statements of the witnesses. However, the trial Court did not find any evidence with regard to the commission of the offence under Section 417 of I.P.C. Thus, the trial Court convicted the accused for the offence under Section 376 of I.P.C. and sentenced him as aforesaid. 6. The accused carried the matter in appeal, which was heard and disposed by learned Addl. Sessions Judge, Champua. The Appellate Court also went through the evidence on record and found the evidence of the victim to be without any blemish so as not to be CRLREV No.442 of 2021 Page 4 of 14 accepted. The appellate Court also relied upon the School Admission Register (Ext.8) wherein the date of birth of the prosecutrix was mentioned as 3rd June, 1997. Thereafter, referring to several decisions of this Court and the Apex Court the appellate Court held that the School Admission Register, being an authentic proof of the age of the victim was rightly relied upon by the trial Court. The said document proved that the victim was a minor being aged about 12-14 years at the time of commission of the offence. Thus, it was held that notwithstanding the consent given by the victim, which is no consent in the eye of law, commission of the offence was clearly proved. As such, the appellate Court dismissed the appeal and confirmed the judgment of the trial Court. 7.
Legal Reasoning
Heard Mr. R.K.Pradhan, learned counsel for the Petitioner, Mr. Julu Kansama, learned counsel for prosecutrix (Opposite Party No.2) and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State. CRLREV No.442 of 2021 Page 5 of 14 8. Mr.Pradhan would argue that both the Courts below have committed manifest error in completely ignoring the fact that the F.I.R. was lodged belatedly i.e. after two years of the alleged occurrence without offering even a semblance of explanation for such delay. He further argued that the case has been clearly foisted falsely as would be evident from the admission of the prosecutrix in her cross-examination that she had lodged the report against the accused at the insistence of the villagers. That apart, there are several glaring contradictions in the evidence and therefore, the trial Court as also the appellate Court should not have brushed aside the same. 9. Per contra, Mr. S.K.Mishra argues that when the version of the prosecutrix is truthful, consistent and credible, the same alone can form the basis of conviction. It is further argued that the evidence on record undoubtedly reveals that the prosecutrix and the accused were in a love relationship taking advantage of which, the accused had physical CRLREV No.442 of 2021 Page 6 of 14 relationship with her on multiple occasions leading to her pregnancy. Even though such relationship was consensual, the prosecutrix being minor at the relevant time, such consent is of no consequence. According to Mr.Mishra the Courts below have rightly held the accused guilty of the offence. 10. Mr. Julu Kansama, learned counsel appearing for the Opposite Party No.2, has also supported the impugned orders by submitting that the evidence is clear, cogent, trustworthy and reliable and therefore, the impugned order of conviction does not warrant any interference whatsoever. 11. A perusal of the L.C.R. would reveal that the F.I.R. (Ext.3) was lodged on 25th July, 2012 referring to the occurrence said to have taken place two years before. The explanation submitted in the F.I.R. itself for the delay is, the prosecutrix hoped that the accused would marry her and therefore, did not report such fact before anybody. The F.I.R. was lodged only because the accused did not return to the village. CRLREV No.442 of 2021 Page 7 of 14 Significantly, it is nowhere stated that the accused had deliberately absconded only to sever his ties with the victim. Thus, this Court finds that the delay has not been satisfactorily explained. Of course, this Court is also conscious of the fact that in a case of rape delay in lodging of the F.I.R. though not, per se, fatal to the prosecution case, yet in the facts and circumstances of the case, it does raise a fundamental doubt. Such doubt becomes fortified when one considers the admission of the prosecutrix in para-6 of her cross- examination quoted herein below; “I used to go to his house and even help his mother in cooking food. He also used to come to our house. We have not been prevented by any of our parents. It is a fact that on the insistence of the villagers, I have filed this case. I was not interested to lodge this case. It is a fact that I want to marry the accused and accordingly I want the accused to be acquitted. I still love the accused.” The above admission that the case was filed (F.I.R. was lodged) on the insistence of the villagers by itself takes away the sanctity of such report. CRLREV No.442 of 2021 Page 8 of 14 12. Coming to the evidence of the prosecutrix, it is seen that according to her, one month before birth of the child, the accused absconded from the village and after birth of the child, her parents approached the mother of the accused to get her married with him, but she refused and thereafter, she lodged the F.I.R. Such fact appears to have been brought on record for the first time inasmuch as nothing in this regard has been stated in the F.I.R. 13. Be that as it may, it is borne out from the evidence on record that a female child was born to the victim. The paternity of the child is sought to be proved through birth certificate of the child marked Ext.2/3, wherein the name of the father has been mentioned as Achyuta Singh(accused). Significantly, in his statement recorded under Section 313 of Cr.P.C., the accused denied when it was put to him that his relation with the victim had led to birth of the child. Thus, the prosecution wants to prove that the child so born to the victim belongs to the accused only on the basis of CRLREV No.442 of 2021 Page 9 of 14 the statement of the victim and the birth certificate. Since the accused had taken the plea of denial, it was incumbent upon the prosecution to have proved the paternity of the child by conducting appropriate tests such as D.N.A. test or otherwise. The same was not done in the case. It is in this background that the statement of the victim that she wants to marry the accused and that she still loves the accused becomes highly significant. 14. Even otherwise, this Court finds from the statement of the father of the victim (P.W.2) that the accused had promised his daughter to marry and in cross-examination that about one year before the birth of the child they had knowledge that the accused had kept relationship with his daughter. He further admits that he had never prevented either the accused or his daughter to have relationship with each other. He further admits that before birth of the child he had never approached either Police or any other authority including village gentlemen. The above statements CRLREV No.442 of 2021 Page 10 of 14 when compared with the admission of the victim in cross-examination on recall that she does not want to further proceed with the case again becomes highly significant because this raises the possibility that the case was foisted as a pressure tactic to force the accused to marry the victim. This is a reasonable probability that can be inferred from the evidence on record, and since it favours the accused, ought to have been considered in the proper perspective by the Courts below. 15. It is further seen that the mother of the prosecutrix being examined as P.W.5 also stated that her daughter and the accused were in love with each other due to which, her daughter became pregnant in the year 2012 and gave birth to a girl child. She also stated that before birth of the child the accused absconded and thereafter her daughter lodged the FIR. In cross-examination, she stated that her daughter had not been to the Police Station and also that she had not stated anything to Police. She further admits CRLREV No.442 of 2021 Page 11 of 14 that she did not discuss with anybody about the issue during the period and as the accused absconded they lodged the case after discussing with the villagers. She also admitted that she wants her daughter to marry with the accused and that it was intention earlier so and that she had not prevented either of the two to mix with each other. The above evidence is highly significant in view of the discussion made herein below as regards the possibility that the case was foisted as a pressure tactic to force the accused to marry the prosecutrix. 16. From the foregoing narration, the following facts emerge. (i) There is no reasonable explanation for the inordinate delay in lodging the FIR. (ii) The relation between the accused and the prosecutrix had the approval of her parents. CRLREV No.442 of 2021 Page 12 of 14 (iii) There is no clear cut proof that the accused is the biological father of the child born to the victim; and (iv) The possibility that the case was foisted only as a pressure tactic to force the accused to marry the prosecutrix cannot be ruled out at all. 17. Thus, it is evident that the very basis of the prosecution case is on a shaky platform leading to reasonable doubts, the benefit of which ought to be given to the accused. Therefore, this Court is of the considered view that both the courts below not having considered the matter from the above perspective, the impugned order of conviction cannot be sustained in the eye of law. 18. In the result, the appeal succeeds and is therefore, allowed. The impugned order of conviction and sentence are hereby set aside. The accused be set CRLREV No.442 of 2021 Page 13 of 14 at liberty forthwith, if not required to be detained in connection with any other case. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera/akr CRLREV No.442 of 2021 Page 14 of 14 CRLREV No.442 of 2021 Page 15 of 14 CRLREV No.442 of 2021 Page 16 of 14