Mukunda Parichha vs State Of Odisha
2023 Latest Caselaw 247 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 CRLA NO.300 OF 2015

             (From the judgment and order dated 10th March, 2015 passed
             by learned Addl. Sessions Judge, Parlakhemundi in S.T.
             No.55 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

10th March, 2015 passed by learned Addl. Sessions

Judge, Parlakhemundi, Gajapati in S.T. No.55/2012

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 May,

2012 at about 8 A.M., the accused came to the house

of the victim and asked to accompany him as she was

called by Naxals to discuss about the death of Sada

and Neula claiming that she had seen the occurrence.

The accused also intimated the victim that if she does

not go with him, in the night she will be killed by

cutting 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.31/2012 was registered

corresponding to G.R. Case No.149/2012 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 11

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

prosecution also proved 9 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 01.5.2012 at about 8

A.M. the accused had committed rape over

the victim who was a minor girl inside the

forest near village Katama.

(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 (P.Ws.4 and 6) and the

two doctors (P.Ws.8 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 May, 2012 at about 8 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.2, 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.4 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. P.W.7 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.2, 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 May, 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