Orissa High Court
Ajamilla Bera @ Tika vs State Of Odisha on 1 May, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.222 of 2003
In the matter of an Appeal under Section 374 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 16.11.2002 passed by the learned Additional
Sessions Judge, Balasore in S.T. Case No.50/112 of 2000.
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Ajamilla Bera @ Tika .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. S. Ch. Padhi,
Mr. J. K. Panda
Advocates
For Respondent - Mr. P. K. Mohanty,
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 30.04.2024 : Date of Judgment : 01.05.2024
D.Dash,J. The Appellant, by filing this Appeal, has assailed the
judgment of conviction and order of sentence dated 16.11.2002, passed
by the learned Additional Sessions Judge, Balasore in S.T. Case
No.50/112 of 2000, arising out of G.R. Case No.170 of 1998,
corresponding to Singla P.S. Case No.14 of 1998, pending on the file of
the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Balasore.
By the impugned judgment of conviction and order of sentence,
the Appellant as the sole accused faced the trial for commission of
offence under section 457 and 376 of the Indian Penal Code, 1860 (for
short, 'the IPC') and he has been sentenced to undergo rigorous
imprisonment for two (2) years and pay fine of Rs.500/- with the default
stipulation to undergo rigorous imprisonment for three months for the
offence under section 457 of the IPC and undergo rigorous
imprisonment for eight (8) years and fine of Rs.1000/- in default to
undergo rigorous imprisonment for six months for the offence under
section 376 of the IPC.
2. Prosecution case is that the victim (Informant-P.W.6) and the
accused are the residents of one village having their houses nearby. The
husband of the victim during a period of 10 years before the incident
was unheard of. The victim (Informant- P.W.6) was residing with her
minor daughter, mother-in-law and nephew (P.W.2). It is alleged that on
27/28.01.1998 midnight when the victim (Informant-P.W.1) was
sleeping in her house, someone entered into the dwelling house by
pushing the door. The victim (Informant- P.W.6) when woke up, she
could identify that it was the accused, who had trespassed into her
house. The identification was made with the help of the light of the lamp
burning in the said house. It is further stated that the accused then
suddenly embraced her (Informant-P.W.6) and making her naked
committed rape upon her. It is also stated that the accused gagged the
victim (Informant-P.W.6) by her wearing apparels and after discharge of
semen left the place. The victim (Informant-P.W.6) finding nobody by
her side, waited till arrival of her mother-in-law. On the next morning
when the mother-in-law of the victim (Informant-P.W.6) arrived, she
narrated the entire incident before her, who then called the villagers such
as P.W.1, P.W.4 and P.W.7 to her house. Before them the victim
(Informant-P.W.6) again narrated the incident and at that time, the
accused had already gone inside the sea to catch the fish. So the co-
villages of the victim (Informant-P.W.6) assured the victim that they
would look into the matter after arrival of the accused. On 03.02.1998
evening, the accused returned home. The villagers then called a meeting
and in that meeting the accused having remained present, admitted to
have committed the offence upon the victim (Informant-P.W.6). He
(accused) then requested the villagers to settle the matter. However, the
villagers asked the victim (Informant-P.W.6) to report the matter at the
police station.
3. On 06.02.1998 around 10 a.m. a report being lodged by the victim
(Informant-P.W.6) with the Officer-in-Charge (OIC), Singla Police
Station (P.W.8), the same was reduced into writing and being treated as
F.I.R. (Ext.3), case was registered. Finally on completion of
investigation, the Final Form was submitted placing the accused to face
the trial for commission of offence under sections 457/376 of the IPC.
The case being then committed, the trial ultimately came to be
concluded in the Court of learned Additional Sessions Judge.
4. The Trial Court, upon examination of the prosecution witnesses
(P.W.1 to P.W.8) and on careful scrutiny of the documentary evidence
let in by the prosecution and marked Exts.1 to Ext.5/1 has found the
prosecution to have established the charges for the offences punishable
under sections 457/376 of the IPC beyond reasonable doubt and the
Appellant (accused) has been sentenced as afore-stated.
5. Learned counsel for the Appellant (accused) submitted that the
prosecution case is based on the solitary testimony of P.W.6 when the
witness before whom the victim (Informant-P.W.6) had first narrated the
incident, who is the mother-in-law of the victim having not been
examined, instead other witnesses have come to the witness box to
depose as to what thereafter was stated by the victim (P.W.6) before
them. Inviting the attention to the deposition of P.W.6, he pointed out,
all those improbabilities surfacing in her evidence which would be dealt
later in course of discussion to follow. He submitted that when the
evidence of P.W.6 does not find corroboration from the medical
evidence, the trial Court ought to have refused to accept her version as
the gospel truth so as to convict the Appellant (accused). According to
him, the version of P.W.6 implicating this accused ought not to have
been accepted by the trial court as wholly reliable to fasten the guilt
upon the accused. He submitted that the evidence of P.W.6 is not at all
free from suspicion and it cannot be said to be of sterling quality so as
to form the sole basis for conviction. He, therefore, urged for acquittal
of the accused.
6. Learned Additional Standing Counsel for the Respondent-State
while supporting the finding of guilt as against the accused as has been
returned by the Trial Court submitted that P.W.6 has narrated the
incident in a quite natural manner. He further submitted that the
evidence of P.W.6 being wholly reliable and as there surfaces no such
inherent improbability in her evidence, when she has gone to state
against the accused inviting all the stigma unto himself in an orthodox
society like us, the Trial Court has rightly accepted her evidence in
fastening the guilt upon 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) as also have
perused the documentary evidence, Ext.1 to Ext.5.
8. Admittedly, the star witness for the prosecution here is P.W.6,
who is the victim herself and she had lodged the FIR which had been
admitted in evidence and marked Ext.3. It has been stated in the FIR and
on 12.01.1998, when she was alone in the house, she heard some sound
of opening of the bamboo gate of her house and, therefore, she lighted
the lamp. It is further mentioned that with the help of that light of the
lamp, she could identify that person to have entered into the house as
this accused. It is next stated that the accused then suddenly sat on her
and gagged her by her wearing apparels and thereafter having unrobed
her, committed upon her for 5 to 10 minutes and having satisfied his
sexual lust after discharge of semen, he left the house. It is further
narrated by P.W.6 in the FIR (Ext.3) that when her mother-in-law
returned home in the morning, she said about the incident who then had
called the villagers and before them she (P.W.6) again narrated the
incident which had taken place in the night. During evidence, it has
however not been stated by P.W.6 that she heard the sound of opening
of the bamboo gate of her house and woke up. She states that the
accused had entered into the house in the night by breaking upon the
door. When it is stated that she was then inside the house, the FIR reads
that by then she had gone for sleep. When it is said in the FIR that the
accused seeing her sat on her and gagged her, it is not so stated by
P.W.6 in her evidence wherein she has stated that the accused lifted her
saree and then entered his penis into her vagina and after discharge of
the semen, left the place. The narration of the incident especially as to
the role of this accused as given in the FIR (Ext.3) greatly differs as to
what have been deposed to by P.W.6. Surprisingly enough, it is not
stated by P.W.6 that she had ever attempted to resist, which is the
normal human instinct and that is wholly absent in the evidence of
P.W.6 which is certainly a conduct standing as adverse. The action of
the accused in gagging P.W.6 although is stated in the FIR, that is not
the version of P.W.6 while tendering her evidence during the trial.
P.W.6 was then aged about 27/28 years and she had married in the year
about 1988 or so and was having a girl child of about 9 years old. The
narration of the victim (P.W.6) as regards the incident when she was
examined in the trial gives an indication that she from the beginning had
not objected to the entry of the accused into her house. The accused was
working under victim- P.W.6 prior to the incident. Although P.W.6
states that one Sushant Mandal, who happens to be her brother stays
near his house, the conduct of P.W.6 in not calling him again raises
doubt in her version about the entry of the accused to the house of the
victim without her knowledge and that it was to her annoyance and that
rather is suggestive of otherwise. During cross-examination when she
had stated to have struggled to escape from the custody of accused and
in the process sustained injury, the Doctor (P.W.3), who had medically
examined P.W.6 has in clear terms stated to have noticed no injury or
mark on any part of the body of the victim-P.W.6. Her evidence is also
to the extent that there was no sign of recent sexual intercourse. The
mother-in-law of the victim before whom the victim has narrated the
incident has not been examined whereas other co-villagers who had
come forward to state as to the narration about the incident by the victim
when they had been called by mother-in-law to the house. In the
absence of the evidence of the person before whom this P.W.6 had first
narrated the incident, the evidence of others who came to the picture
later cannot be taken as first hand corroboration.
The evidence of P.W.6 as discussed above, thus in my considered
opinion suffers from inherent improbabilities which cannot be lightly
brushed aside and, therefore, it would not be safe to rely upon her
evidence to hold that the accused had committed sexual intercourse
upon her by force, that too against her consent.
9. In that view of the matter the judgment of conviction and the
order of sentence recorded against the accused which have been
impugned in this Appeal cannot thus sustained.
10. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 16.11.2002 passed by the learned
Additional Sessions Judge, Balasore in S.T. Case No.50/112 of 2000 are
hereby set aside.
The Appellant (accused) since is on bail, his bail bonds shall stand
discharged.
(D. Dash),
Judge.
Gitanjali
Designation: Junior Stenographer
Reason: Authentication
Location: OHC
Date: 03-May-2024 18:07:09
