Orissa High Court
Sanatan Swain vs State Of Orissa on 20 June, 2024
Author: D. Dash
Bench: D. Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.177 of 2010
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 4th March 2010 passed
by the learned Additional Sessions Judge, Jagatsinghpur in
Criminal Trial Case 48 of 2008.
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Sanatan Swain .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
=========================================================
For Appellant - Mr. Samarendra Mohanty,
Advocate.
For Respondent - Mr. P.K. Mohanty,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D. DASH
DATE OF HEARING :21.05.2024: DATE OF JUDGMENT: 20.06.2024
D. Dash, J. The Appellant, by filing this Appeal, has assailed the
judgment of conviction and order of sentence 4th March 2010
passed by the learned Additional Sessions Judge,
Jagatsinghpur in Criminal Trial Case 48 of 2008 arising out of
G.R. Case No.368 of 2004 of the file of learned Judicial
Magistrate First Class (J.M.F.C.) (P), Kujanga.
CRLA No.177 OF 2010
The Appellant (accused) with two others faced the trial
being charged for commission of offence under section-
366/376/109/34 of the Indian Penal Code, 1860 (for short,
called 'the IPC'). The Trial Court analyzing the evidence of the
victim and other prosecution witnesses and on going through
the documents admitted in evidence from the side of the
prosecution, having evaluated the same has found this
accused guilty for commission of offence under section-376 of
the IPC. Accordingly, he has been sentenced to undergo
rigorous imprisonment for a period of ten (10) years and pay
fine of Rs.5,000/- in default to undergo rigorous imprisonment
for three months.
2. The prosecution case is that on 02.08.2004 around 9 pm,
the victim (P.W.11) then aged about 15 years had gone outside
and this accused took her away in a car to distant place.
A report to the above effect being lodged by the father
of the victim (P.W.6), the same was treated as F.I.R. and case
being registered, investigation commenced. On completion of
investigation, this accused and other two others faced trial for
commission of offence under section-366/376/109/34 of the
IPC. The Trial Court has finally convicted this accused for
commission of offence under section-376 of the IPC and
accordingly, the accused has been sentenced as aforesaid,
when other two co-accused persons stood acquitted thereofs.
CRLA No.177 OF 2010
3. Learned Counsel for the Appellant(accused) placing the
deposition of the victim (P.W.11) submitted that although she
during trial narrated many facts regarding the incident and
the role played by this accused therein in implicating this
accused to have sexually assaulted her; in her previous
statement recorded under section-164 of the Cr.P.C. she had
stated absolutely nothing against this accused. This P.W.11
during trial having stated all those, she then does not offer
any explanation as to why or for what reason, she had not
divulged all those facts before the Magistrate, before whom
she was called upon to give her statement. According to him,
the Trial Corut ought not to have held that this accused guilty
for offence under section-376 of the IPC, even though for a
moment, it is said that the prosecution has proved that victim
at the relevant time was below 16 years of age, as her evidence
as to sexual assault upon her cannot be believed; the
conviction recorded by the Trial Court has to fail.
4. Learned Counsel for the Respondent-State submitted
that the victim (P.W.11) having come to the witness box
during trial since has implicated this accused to have ravished
her by describing all details in which way that was so done,
merely because, she had not stated all those during her cross-
examination under section-164 Cr.P.C. that itself would not be
CRLA No.177 OF 2010
the ground to discard of the evidence of P.W.11 and eschew
the same from consideration.
5. Keeping in view the submissions made; I have carefully
read the judgment passed by the Trial Court and I have also
extensively travelled through the evidence adduced by the
prosecution witnesses i.e. P.Ws. 1 to 16.
6. The victim is the star witness for the prosecution, and
she during trial has been examined as P.W.11. She was then
reading in Matriculation in the High School. During her
examination for recording statement under section-164 of the
Cr.P.C. in the case in the year 2004, she has stated her age to
be 16 years. When her age in the year 2009 at the time of
examination during the trial has been stated to be 19 years.
The statement of the victim (P.W.11) recorded under section-
164 of the Cr.P.C. has been admitted in evidence and marked
exhibit by none else than the prosecution during her
examination-in-chief. So, it appears that the prosecution very
much relies on that statement and that is to unfurl the truth.
The Trial Court very interestingly has discarded the same to
be taken note of in saying that the same is not a piece of
substantive evidence. The fundamental and most basic fact of
law what has been forgotten by the Trial Court is that such
statement recorded under section-164 of the Cr.P.C. is the
statement recorded in course of investigation and just the
CRLA No.177 OF 2010
previous statement of P.W.11 which can be used for the
purpose of contradiction by the accused to test the veracity of
evidence of that person during trial. Nothing having been
stated by P.W.11 in her statement under section-164 of the
Cr.P.C. whatever have been now stated during trial; appear to
be in contradictions as those were the omission in the
previous statements which no doubt being the material
omission thus, clearly amounts but contradictions which does
not receive any explanation. In such state of affair, this P.W.11
cannot be said to be a truthful witness. Therefore, the Trial
Court ought not to have believe the evidence of P.W.1,
holding her version as the base to fasten the criminal liability
upon this accused for commission of offence under section-
376 of the IPC.
7. In that view of the matter, this Appeal is allowed. The
judgment of conviction and order of sentence 4th March 2010
passed by the learned Additional Sessions Judge,
Jagatsinghpur in Criminal Trial Case 48 of 2008 are set aside.
(D. Dash),
Judge.
Narayan
CRLA No.177 OF 2010
