Orissa High Court
Himadri Bagar vs State Of Orissa on 4 December, 2023
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
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
-versus-
State of Orissa ... Respondent
For Appellant : Mr. B. Sahoo, Advocate
For Respondent : 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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
conviction of the appellant for any offence is
unsustainable in the eye of law.
12. A careful reappraisal of evidence on record
vis-à-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. 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.
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.
(G. Satapathy)
Judge
I Agree
(D.Dash)
Judge
Orissa High Court, Cuttack,
Dated the 4th day of December, 2023/S.Sasmal
Location: High Court of Orissa
