Mukunda Parichha vs State Of Odisha
2023 Latest Caselaw 246 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 CRLA NO.301 OF 2015

             (From the judgment and order dated 16th March, 2015 passed
             by learned Addl. Sessions Judge, Parlakhemundi in S.T.
             No.56 of 2012)

                  Mukunda Parichha
                                                             ...        Appellant

                                               -versus-

                   State of Odisha                            ...        Respondent



               Advocates appeared in the case through hybrid mode:

                      For Appellant : Mr.Manoj Kumar Panda,
                                      Advocate

                                                           -versus-

                     For Respondent: Mr.Priyabrata Tripathy,
                                     Addl. Standing Counsel

               ---------------------------------------------------------------------------
                      CORAM:

                                     JUSTICE SASHIKANTA MISHRA

                                                   JUDGMENT

06.01.2023.

Sashikanta Mishra,J. The Appellant challenges the judgment dated

16th March, 2015 passed by learned Addl. Sessions

Judge, Parlakhemundi, Gajapati in S.T. No.56/2012

whereby he was convicted for the offence under Section

376 and 506(ii) of I.P.C. and sentenced to undergo

Rigorous Imprisonment for ten years and to pay a fine

of Rs.20,000/-, in default to undergo further Rigorous

Imprisonment for one year for the offence under

Section 376 I.P.C. and Rigorous Imprisonment for

three years and to pay fine of Rs.5,000/-, in default to

undergo Rigorous Imprisonment for further six months

for the offence under section 506(ii) I.P.C. Both the

sentences have been directed to run concurrently.

2. The prosecution case, in brief, is that on 1st

August, 2012 at about 7 A.M., the accused came to the

house of the victim and asked to accompany him as

she was called by Naxals. The accused also intimated

the victim that if she does not go with him, in the night

she will be killed by cutting of her throat. Thus, the

victim being frightened accompanied the accused to

the nearby forest at the end of the village where no one

was present. Accused informed the victim that he

would save her from the clutches of the Naxals in

exchange for having sex with him, which was opposed

by her. The accused however, put her on the ground

forcibly and committed rape. The victim was further

threatened that he would cut her throat if she

disclosed the occurrence before any person. On 12th

September, 2012 there was a gathering of about 500

people for discussion regarding a letter of threat issued

by Naxals to the Sarpanch of the Panchayat. In that

meeting the accused admitted to have raped the victim

despite her protest. As such on 13th September, 2012,

the informant lodged a written complaint before the

Adava P.S. basing on which P.S. Case No.32/2012 was

registered corresponding to G.R. Case No.150/2012 of

the Court of learned J.M.F.C., R.Udayagiri. Upon

completion of investigation charge sheet was submitted

under Sections 376/506 of I.P.C. and cognizance was

taken and the case was committed to the Court of

Session for trial.

3. The defence took the plea of denial and false

implication.

4. To prove its case, the prosecution examined 12

witnesses including P.W.1 as the victim. The

prosecution also proved 8 documents and two

witnesses were examined on behalf of the accused.

5. The Trial Court framed the following points for

determination.

(i) Whether on dated 01.8.2012 the

accused had committed rape over the

victim inside the forest near village Katama

by having forcible sex with her?

(ii) Whether on the above day, date, time

and place the accused had criminally

intimated the victim by threatening her to

kill her from her life if she disclosed the

fact of rape before anyone with an

intention to cause alarm to her?

6. On the first point, the Trial Court scanned the

evidence on record particularly, that of the victim

(P.W.1), her mother, villagers and the two doctors

(P.Ws.9 and 10) to hold that the prosecution

successfully proved the allegation of rape by the

accused on the victim beyond all reasonable doubts

and thus, found him guilty under Section 376 of I.P.C.

On the second point, the Trial Court took note of the

version of the victim that the accused had repeatedly

threatened to cut her throat firstly, to commit rape on

her and secondly, if she disclosed such fact before any

person. Thus, the Trial Court held the Appellant also

guilty for the offence under Section 506 I.P.C.

7. Heard Mr. M.K.Panda, learned counsel for the

Appellant and Mr. P. Tripathy, learned Addl. Standing

Counsel for the State.

8. Assailing the impugned judgment, Mr. Panda

has raised the following contentions:-

(i) The so called extra judicial confession of the accused before the villagers in the meeting cannot be treated as admissible in view of the evidence that he was pressurized and threatened to do so.

(ii) The victim's version being beset with doubts could not have been relied upon by the Trial Court as the basis for convicting the accused.

Mr. Panda has relied on some decisions to

buttress his contentions, which would be discussed at

the appropriate place later.

9. Per contra, Mr. P. Tripathy has supported the

findings of learned Trial Court by submitting that when

the version of the victim is clear, cogent and credible, it

is adequate to convict the accused basing on it. The

victim not being an accomplice, no corroboration is

necessary in a case of rape. It is further argued that

the victim had adequately explained the reasons for

not disclosing the fact before any person as also for

lodging the F.I.R. belatedly. According to Mr. Tripathy,

therefore, the impugned judgment warrants no

interference.

10. The facts of the case as revealed from the

evidence on record are that the occurrence is said to

have taken place on 1st August, 2012 at about 7 A.M.

It is in the evidence of the victim herself as also that of

her mother that she had not disclosed before any one

much less her mother and family members about the

occurrence. She did so for the first time on 12th

September, 2012 in a meeting of the Panchayat held in

the village to discuss about the letter of threat issued

by the Naxals. Basing on her disclosure, the

occurrence came to light and accordingly, the F.I.R.

was lodged on the next day i.e. on 13th September,

2012.

Mr. Panda has raised serious objections to the

reliance placed by the Trial Court on the evidence of

the so called extra judicial confession made by the

accused in the aforementioned meeting. In this regard,

the victim (P.W.1) stated as follows:

"On 12.9.2012, a meeting was convened in our village concerning a notice given by naxals to our Sarpanch. I was also called to the meeting. The accused had also been called. Many persons attended that meeting. In the meeting I told the above incident to the Sarpanch and other gentries present namely Jugal Sualsing, Pratap Mantri and Lasinga Patamajhi. I told them that the accused forcibly raped me. In that meeting two women namely Sabitri and Nalini and a girl named Sankhini also complained to the village gentries that the accused raped them in the similar fashion under the threat of naxals. Before the village gentries the accused admitted to have raped me and other women."

P.W.1 further stated that she was called to the

meeting because she was seen going with the accused.

According to P.W.8, the villagers of Katama brought

the accused to the Panchayat Office on the allegation

of rape on the victim girl and a meeting was convened

wherein the entire villagers were present. P.W.7 says

that the meeting was convened to discuss about the

threatening letter issued by an unknown person and

500 villagers attended the said meeting. He also says

that in the said letter, the name of Mukunda was

written at the bottom for which the accused, who is

also named Mukunda, was doubted.

11. This Court is of the view that if the meeting was

convened to discuss the letter of threat issued by the

Naxals, there is no reason why the victim and other

girls of the village would be called to attend the same.

Moreover, there is no evidence that the victim or her

father had made any complaint in the village, which

could be the basis or reason for convening the meeting.

P.W.6 also says that the meeting was convened to

discuss about the threat over letter received by the

villagers and nearly 500 people attended the said

meeting and there was allegation against the accused

of committing rape on the victim and others. He

further says that the minutes of the said meeting was

prepared by the Sarpanch and he was signatory to the

same. The Ward Member cannot say why the meeting

was convened in the village. Thus, the purpose for

which the meeting was held is not clear. The so-called

letter of threat received by the villagers was never

proved nor was the minutes of the meeting. This raises

a doubt whether such a meeting took place at all.

12. It is the prosecution case that the accused

confessed of committing rape on the victim. In this

regard, the evidence of the Sarpanch is relevant, who

being examined as P.W.8, stated as follows:-

"The villagers of Katama brought the accused to the Panchayat Office on the allegation of rape on the victim girl. We convened a meeting and the entire villagers were present. One Asinga Majhi acted as the President. When the said Asinga Majhi questioned the accused with regard to the allegation of rape, the accused did not admit the same. Then the villagers left the accused in my custody for three days and after three days again they threatened the accused to take away his life. As the life of the accused was at risk, I proceeded to the P.S. and produced the accused before the Police. In this said meeting the victim informed everyone that the accused committed rape on her against her will. In the said meeting also other victims namely, Sankini, Nalini and Sabitri alleged against the accused that he committed rape on them."

13. This clearly suggests that the accused was put

under some kind of coercion and/or pressure. Mr.

Panda has relied upon a decision of a Division Bench

of this Court rendered in the case of Sunadhar

Khilla v. State of Orissa; reported in 2008 (2) Crimes

690, wherein in a case involving similar facts, it was

held that the statement made by the accused under

threat and force cannot be treated as voluntary. It is

well settled that the so-called extra judicial confession

must be voluntary and without any kind of coercion or

pressure from any quarter. In view of the admission of

P.W.2 that the accused was left by the villagers in his

custody for three days and they also threatened to take

away his life, the so-called extra judicial confession

cannot be said to have been voluntarily made so as to

be accepted.

14. If the evidence relating to the extra judicial is

brushed aside, the Court is left only with the evidence

of victim (P.W.1). It is the settled position of law that

the sole testimony of the victim is adequate to prove

the offence of rape provided it has a ring of truth in it

and is otherwise truthful and believable. In the instant

case, the victim was allegedly raped on 1st August,

2012. Till 12th September, 2012 she did not disclose

the same to anyone including her mother. She explains

that she did not disclose as the accused had

threatened to kill her, but she did so in the meeting

because she could gather courage seeing many

persons. This Court has already disbelieved the factum

of convening of the meeting. Even otherwise, it does

not stand to reason or a probable or normal conduct

on the part of a girl as young as the victim was at the

relevant time to hide such fact from her own mother

for whatever reason but could disclose the same before

500 villagers in the village meeting. The above act of

the victim militates against normal human conduct.

Moreover, if a minor girl like the victim was forcibly

raped, it is only natural that she would have sustained

injuries not only on her private parts but also on her

body. There is nothing in the evidence to show that

the victim had sustained any such injuries or if she

had sustained any injury how could she conceal the

same for nearly two months after the occurrence and

not say anything about it even to her mother.

For all the above reasons therefore, the version of

the victim becomes difficult to believe.

15. The Court must distinguish between a mere

possibility and probability because a case is to be

decided on broader probabilities. Merely because, an

act is theoretically possible does not necessarily mean

that the same is probable under the facts and

circumstances of the case. In other words, the Court is

required to make a broader assessment of the evidence

on record to find out whether the version of the

witnesses suggest the probability of the occurrence

having taken place. In the instant case this Court, for

the reasons discussed herein before cannot persuade

itself to believe the version of the victim. At the very

least two views are possible namely, one favouring the

prosecution and the other favouring the accused in the

peculiar circumstances of the case. It is trite that the

latter has to be accepted.

16. Reading of the impugned judgment reveals that

the Court below has accepted the version of the victim

on the ground that no corroboration is necessary.

Learned Court below has also considered the

theoretical possibility that a woman ordinarily would

not like to speak about something affecting her

character and estimation. While the above may be a

plausible presumption of the conduct of a woman

subjected to rape the same would be too broad a

generalization to be accepted in every case as a rigid

formula. Such theorizing, divorced of the peculiar facts

and circumstances can result in erroneous

appreciation of the evidence adduced in a particular

case, which unfortunately, the impugned judgment is

found to be suffering from. Hence, the impugned

judgment of conviction and sentence cannot be

sustained in the eye of law.

17. For the foregoing reasons therefore, the appeal is

allowed. The impugned judgment of conviction and

sentence is hereby set aside. The Appellant be set at

liberty forthwith if not required to be detained in

connection with any other case and his bail bonds be

discharged.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera