Tapan Kumar Mohanty vs State Of Orissa
2024 Latest Caselaw 10312 Ori

Orissa High Court

Tapan Kumar Mohanty vs State Of Orissa on 21 June, 2024

Author: D.Dash

Bench: D.Dash

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLA No.18 of 2003

          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 6th January, 2003 passed by the
    learned Chief Judicial Magistrate-Cum-Assistant Sessions Judge,
    Angul in S.T. Case No.204 of 2001 (Trial Case No.35 of 2001).
                                   ----

        Tapan Kumar Mohanty                 ....        Appellant

                                   -versus-
        State of Orissa                        ....        Respondent

             Appeared in this case by Hybrid Arrangement
                       (Virtual/Physical Mode):

                For Appellant      -       Mr.S.P. Mishra, Sr. Advocate
                                           S.K. Mishra, S. Nanda,
                                           M.R. Dash
                                           (Advocates)

                For Respondent -           Mr.S.K. Nayak
                                           Additional Government Advocate

                                CORAM
                          MR. JUSTICE D.DASH

    Date of Hearing : 20.05.2024       :   Date of Judgment : 21.06.2024

D.Dash,J. The Appellant, by filing this Appeal, has called in question

the judgment of conviction and order of sentence dated 6th

January, 2003 passed by the learned Chief Judicial Magistrate-

Cum-Assistant Sessions Judge, Angul in S.T. Case No.204 of 2001

(Trial Case No.35 of 2001) arising out of G.R. Case No.336 of 2003

corresponding to Angul P.S. Case No.44 of 2001 pending on the

Court of the Learned Sub-Divisional Judicial Magistrate

(S.D.J.M.), Angul.

By the impugned judgment of conviction and order of

sentence, the Appellant (accused) has been convicted for

commission of the offence under section 376 of the Indian Penal

Code, 1860 (for short, 'the IPC'). Accordingly, he has been

sentenced to undergo rigorous imprisonment for eight (8) years

and pay fine of Rs.1,000/- (Rupees One Thousand) in default to

undergo rigorous imprisonment for three (3) months for

commission of the said offence. The Trial Court has further

directed that the fine amount, if realized, be paid to the

prosecutrix.

2. Prosecution Case:-

The Informant (Victim-P.W.2), since the year 1994, was

serving at Jevan Seva Office, Angul. About six months before the

incident, the Appellant (accused), who had a cassette shop at

Angul Bus Stand, had gone to the said office. The accused,

coming in contact with the victim (P.W.2), told her that she would

become his God sister from that time onwards. On one occasion,

the Appellant (accused) had taken the victim to his house and he

himself twice visited the house of the victim (P.W.2).

It is stated that on 23.03.1995, during noon hours, when the

victim (P.W.2) was waiting at Angul Bus Stand to board a bus in

order to go to her house, the accused arrived there and told her

that he would drop her in the house. Accordingly, the accused

took the victim (P.W.2) in his scooter. It was around 1.00 p.m., on

the way near Village-Kumursingha hill, the accused stopped his

scooter. When the victim asked him as to why he did so, the

accused told her that he would be going to attend call of nature. It

is alleged that soon thereafter, the accused caught hold of the

victim and forcibly dragged her towards the jungle with ill

intention. The victim, therefore, cried and requested him not to

behave with her in that way. It is stated that the accused then told

that he would marry her and so saying, the accused dragged her

behind the bushes forcibly and making her lie on the ground

facing upward, molested her despite protest from the side of the

victim. The accused then lifting the wearing apparels of the

victim and removing the undergarments, had sexual intercourse.

The victim, then raised hullah and cried. It is next stated that the

accused thus, having committed rape, told the victim that she

need not be worried as he would marry her and asked her not to

disclose the incident to anybody. The accused then took her on

his scooter and left her near her house when it was around 3.00

p.m. and therefrom the accused left. The victim, out of shame, did

not disclose the incident to anybody immediately but as she felt

pain, after some time, she narrated the incident before her mother

(P.W.1). On the next day, the victim (P.W.2) did not feel well and

she remained confined to her house. On the next day, having

gone to the office, the victim disclosed the incident before her

office staff and then she reported the matter in writing with the

Officer-in-Charge (O.I.C.) of Angul P.S.

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.11), in course of the investigation, examined

the Informant (Victim-P.W.2) and other witnesses and recorded

their statements under Section 161 Cr.P.C, sent the victim for her

medical 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 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 of the IPC against the

accused. That is how the Trial commenced.

3. During Trial, the prosecution, in total, has examined twelve

(12) witnesses. Out of whom, the important are the victim (P.W.2)

and her mother (P.W.1). The Doctor, who had examined the

victim (P.W.2), has been examined as P.W.12 whereas the I.O. is

P.W.11.

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, the medical report is Ext.8 and Ext.9 is the report of the

Chemical Examiner.

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 of the IPC against the

accused beyond reasonable doubt. Accordingly, the Appellant

(accused) has been convicted and sentenced as afores-stated.

5. Mr.S.P. Mishra, learned Senior Counsel for the Appellant

(accused), at the beginning, placing the depositions of the victim

(P.W.2) as also simultaneously the evidence of her mother

(P.W.1), submitted that even accepting the evidence of P.W.2 in

toto, the accused ought not to have been held guilty of

commission of the offence under section 376 of the IPC as the

facts and circumstances emanating from the evidence as also the

medical evidence could clearly reveal that it was a consensual sex

between the victim and the accused, which has been given the

colour of rape for some reason or other being developed in the

mind at a later point of the time. He submitted that the evidence

of P.W.2, being tracked right from the beginning as to how they

together established the relationship, visited each other's house

and other places too and more particularly, the narrative of the

incident of that particular day, would leave no room of doubt

that it was not at all a case of forcible sexual intercourse upon the

victim (P.W.2) at the instance of the accused. He also pointed out

some exaggeration in the evidence of P.W.2 as well as the later

developments. In view of all these above, he submitted that the

solitary testimony of P.W.2 cannot form the basis of conviction of

the Appellant as inherent improbabilities surface in her evidence.

Accordingly, he urged that the judgment of conviction and the

order of sentence passed against the Appellant (accused) cannot

be sustained and as such, are liable to set aside.

6. Mr.S.K. Nayak, learned Government Advocate for the

Respondent-State, while supporting the finding of guilt against

the accused as has been recorded by the Trial Court, submitted

that the evidence of the victim (P.W.2), when read as a whole,

would inspire confidence in mind as regards the role played by

the accused and the act done by him upon the victim that it was

totally against her consent and there was no approval at all to the

same from the side of the victim (P.W.2). He, therefore, urged that

the judgment of conviction and the order of sentence are well in

order.

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.12). The documents admitted in evidence from the

side of the prosecution have also been gone through.

8. The case of the prosecution mainly centers around the

evidence of the P.W.2, who is none other than the victim and she

had lodged the FIR (Ext.1). The incident, having taken place on

23.03.1995, this FIR (Ext.1) has been lodged on 25.03.1995. It has

been stated by P.W.2 in the FIR (Ext.1) that on that day and time,

when she was standing on the Bus Stand in order to board a bus

to go to her house, the Appellant (accused) reached there. During

evidence, it has been stated by the victim (P.W.2) that when she

was taking rest inside the rest waiting room at Angul Bus Stand

and waiting for the bus to go to her village, the accused arrived

there. It being a Bus Stand and busy locality, the prosecution has

not examined any witnesses in support of the fact that the

accused had gone there and had talked with the victim and that

thereafter, he brought her in his scooter, when it is not the case of

the prosecution nor the victim that at that point of time, it was the

victim (P.W.2), who alone was there and none-else. Be that as it

may, it has been stated by the victim that the accused, having

arrived there, told her that he would leave her in her house by

carrying her in the scooter and the accused took her on the

scooter. It is not said that the victim was taken by force and then

they travelled in the scooter being driven by the accused. This

reveals that the victim, receiving the request of the accused,

immediately accepted the same and followed the accused by

sitting on his scooter. Her further evidence is that she was then

taken by the accused near the hill inside the forest and there

when the victim asked the accused as to why she had been taken

there, the accused told her that he would go to pass urine and

thereafter, it is said that the accused dragged the victim forcibly

near the hill side and committed rape on her against her will and

without consent. This very version of the victim (P.W.2) that the

accused forcibly dragged the victim and committed rape upon

her against her will and without her consent somehow appears to

be improbable when the conduct of the victim is traced. The

victim (P.W.2), having found herself to have been taken near the

hill side has not even attempted to escape nor even had raised

any hullah or cry and when he says that she was dragged and

then raped, it is not stated that up to how much distance, she was

dragged and nothing more is also specifically stated as regards

the last part of the incident. When she has stated that the accused

committed rape upon her, she does not state to have shown any

resistance whatsoever. If such incident took place on the hill side,

it is normally expected that the victim since it is without her

consent would sustain some external injuries on her body and so

also the accused, being so proceeded ahead despite such

resistance.

The Doctor, who has examined the victim, has been

examined as P.W.12. She (P.W.12) says to have noted no such

external injury on the body of the victim (P.W.2). She has also not

marked any such injury on the private part except litter

tenderness in the clitoris when the vaginal canal was admitting

two fingers. It has been stated by her that she had noticed no such

sign or symptom of rape. The more interesting part of the

evidence of the victim (P.W.2) is that after the incident, the

accused took her in his scooter and left her at a little distance

from her house. This is, however, not receiving support from the

evidence of P.W.1, who is none other the mother of the victim.

She has stated that around 12.00 to 1.00 p.m., the accused left her

daughter (victim-P.W.2) in their house. It has also been stated by

her that the accused took water in their house and talked with her

(P.W.1) for about half an hour and left the house by collecting

some drum sticks. During all these period, nothing has been

stated by the victim to P.W.1 about the occurrence the P.W.1,

being the mother of the victim, states to have marked any such

sign or symptom with P.W.2, who as per her evidence, had been

raped shortly before by the accused. The mother (P.W.1) also

does not stated to have marked any such abnormal feature or

behavior or expression of the accused at the time when after the

incident, had gone to their house. This part of evidence of P.W.1

appears to have been purposely suppressed by the victim so as

not to bring her silence to affect her allegation against the accused

in any manner. The accused was in visiting terms to the house of

the victim. They had acquaintance and relationship prior to such

incident. The victim immediately accepting the request of the

accused went with him in cumulatively viewing all these,

inherent improbabilities are found to be thus appearing in the

evidence of the victim when she does not state to have

immediately disclosed the incident to her mother (P.W.1) and at

the same time, she does not state to have been given any threat by

the side of the accused or that the accused had put her on fear of

any fatal consequences for telling the same.

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.2) to base conviction in completely

ruling out the possibility of consensual sex so as to say that the

accused had committed the sexual intercourse upon the victim

(P.W.2), who was then aged about 19 years without her consent.

9. In the result, the Appeal is allowed. The judgment of

conviction and order of sentence dated 6th January, 2003 passed

by the learned Chief Judicial Magistrate-Cum-Assistant Sessions

Judge, Angul in S.T. Case No.204 of 2001 (Trial Case No.35 of

2001), are hereby set aside.

(D. Dash), Judge.

Basu

Location: HIGH COURT OF ORISSA : CUTTACK