Orissa High Court
Unknown vs State Of Orissa on 1 July, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.294 of 1992
In the matter of an Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 25th July, 1992 passed by the learned
Additional Sessions Judge, Balangir in Sessions Case No.25/14 of
1992.
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Rama Putel .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - M/s.B.Sahoo, A.K. Mishra,
S.Patnaik & A.K. Sahoo
(Advocates)
For Respondent - Mr.P.K. Mohanty
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 24.06.2024 : Date of Judgment : 01.07.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in question
the judgment of conviction and order of sentence dated 25th July,
1992 passed by the learned Additional Sessions Judge, Balangir in
Sessions Case No.25/14 of 1992 arising out of G.R. Case No.198 of
1991-T.R.166 of 92 pending on the Court of the Learned Sub-
Divisional Judicial Magistrate (S.D.J.M.), Patnagarh.
By the impugned judgment of conviction and order of
sentence, the Appellant (accused) has been convicted for
commission of the offence under section 376 (1) of the Indian
Penal Code, 1860 (for short, 'the IPC'). Accordingly, he has been
sentenced to undergo rigorous imprisonment for seven (7) years.
2. Prosecution Case:-
On 08.10.1991 around 1.00 p.m, while the victim (P.W.1)
was coming out after taking bath from river bandh, the accused
suddenly appeared there and caught hold of her. Thereafter, the
accused made her lie on the ground, removed here wearing
apparels, committed sexual intercourse and left the place. The
victim (P.W.1) thereafter returned to her house and narrated the
incident to her cousin brother. On the same day, she (Victim-
P.W.1) went to Belpada Police Station and lodged the written
report
The O.I.C., on receiving the above written report, treated
the same as FIR (Ext.1) and upon registration of the criminal case,
took up the investigation.
The I.O. (P.W.8), in course of the investigation, went to the
spot, examined the (Victim-P.W.1) and other witnesses and
recorded their statements under Section 161 Cr.P.C, sent the
victim for her medical examination, seized the incriminating
articles for chemical examination and on completion of the
investigation, submitted the Final Form placing this accused to
face the trial for commission of the offence under section 376(1) of
the IPC.
The learned S.D.J.M., having taken cognizance of the said
offence, after observing formalities, committed the case of the
Court of Sessions. That is how the Trial commenced after framing
of the charge for the offence under section 376(1) of the IPC
against the accused. That is how the Trial commenced.
3. During Trial, the prosecution, in total, has examined eight
(8) witnesses. Out of whom, the important are the victim (P.W.1)
and the Doctor, who had examined the victim (P.W.1) and the
accused is P.W.7. The I.O., at the end, has come to the witness box
as P.W.8.
The prosecution, besides leading the above evidence, has
proved the several documents, which have been admitted in
evidence and marked Exts.1 to 9. Out of the same, the FIR is Ext.1
and the medical report is Ext.3.
4. The Trial Court, upon examination of the evidence and
their evaluation, has recorded the finding that the prosecution
has established its case under section 376 (1) of the IPC against
the accused beyond reasonable doubt. Accordingly, the
Appellant (accused) has been convicted and sentenced as afore-
stated.
5. Learned counsel for the Appellant (accused), placing the
evidence of the victim (P.W.1), submitted that the Trial Court
ought not to have relied upon her evidence to fasten the guilt
against the accused that he had forcibly made sexual intercourse
upon her. He further submitted that the circumstances emerging
from the evidence of the victim (P.W.1) are disturbing and would
rather tend to show that her evidence is highly improbable in so
far as such allegation of rape against the accused are concerned.
He further submitted that the evidence with regard to the age of
the victim is not so convincing and the Trial Court ought not to
have held that she was under age given the benefit of doubt. He,
therefore, submitted that the judgment of conviction and order of
sentence, which are impugned in this Appeal, cannot sustain.
6. Mr.P.K. Mohanty, learned Additional Sanding Counsel for
the Respondent-State, while supporting the finding of guilt
against the accused as has been recorded by the Trial Court,
submitted that there is no inherent improbability in the evidence
of the victim (P.W.1) and, therefore, the Trial Court has rightly
fastened the guilt against the accused.
7. Keeping in view the submissions made; I have carefully
read the impugned judgment of conviction and have also
extensively travelled through the depositions of the witnesses
(P.Ws.1 to P.W.8). The documents admitted in evidence from the
side of the prosecution have also been gone through.
8. In order to address the rival submission, let us first
straightway proceed to examine the evidence of the victim
(P.W.1), who is none other than the victim. It is her evidence that
on the relevant date, during mid-day, the accused caughthold of
her and made her lie on the ground. It is further stated that this
accused then by removing the wearing apparels of the victim as
well as by removing his clothes, squeezed her breasts and
penetrated his penis into her vagina. It is stated that she came
back to the house and narrated the incident to her elder brother.
Her evidence is that she ran to the house when the accused
rapped her after committing rape on that bathing ghat itself. Her
conduct appears that she did not offer any resistance whatsoever.
She has not tried to get herself freed from the clutch of the
accused nor had given any nail marks on the back of the accused
or any other part of his body. She too had raised any hullah nor
to have beaten the accused.
The Doctor (P.W.7) has deposed that the hymen was
ruptured long before and the vagina was admitting two fingers,
which according to him is clearly suggestive of that the victim
had been earlier enjoyed sex. The further conduct of the victim
(P.W.1) can be seen that when she left the place being freed by the
accused, she has not immediately informed anyone on the way.
As regards, the age of the victim, the evidence on record is not so
clinching to arrive at a conclusion finding that she was under
aged.
In view of all the aforesaid discussion of the evidence, this
Court finds that it would be hazardous to accept the solitary
testimony of the victim (P.W.1) to base the conviction.
9. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 25th July, 1992 passed by
the learned Additional Sessions Judge, Balangir in Sessions Case
No.25/14 of 1992, are hereby set aside.
(D. Dash),
Judge.
Basu
Location: HIGH COURT OF ORISSA : CUTTACK
