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Krushna Prasad Rajguru Mohapatra Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 435 of 1983
Judge
Reported in1985(II)OLR275
ActsCode of Criminal Procedure (CrPC) , 1973; Indian Penal Code (IPC), 1860 - Sections 366, 368 and 376
AppellantKrushna Prasad Rajguru Mohapatra
RespondentState of Orissa
Appellant AdvocateL. Rath, B.S. Mishra, N.K. Behera, S.K. Dash and K.P. Mishra
Respondent AdvocateN.C. Panigrahi, Addl. Govt. Adv.
DispositionPetition allowed
Cases ReferredBharwada Bhoginbhai Hirjibhai v. State of Gujarat. As
Excerpt:
.....courts, being well-founded on the evidence, should not be interfered with. 4/4). in this state of evidence, the courts below ought to have held that the prosecution had failed to establish that p. 1 was a minor within the meaning of section 361 of the code defining 'kidnapping' and that therefore, the charge of kidnapping would fail. 4. although the revisional power of the high court is as wide as the power of the court of appeal, it is well-settled that normally, the jurisdiction of the high court is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. 1 had denied in her cross-examination that she had been working as a maid-servant in..........her mouth and by threatening her on the point of a knife so that she would be forced to have sexual intercourse with him against her will and in that process, dragged her to his house, closed the door, confined her in the room and had sexual intercourse five times against her will and without her consent and ultimately in the early hours of june 12, 1981, she was rescued from the house of the petitioner by her husband (p. w. 2), her father (p. w. 3), p. w. 11 and two constables (p. ws. 5 and 10) who were on patrol duty during the night. the first information report was lodged by p. w. 2 at the police station and investigation followed and ultimately, the petitioner was prosecuted.3. the learned trial judge as also the learned appellate judge held that the three charges against the.....
Judgment:

B.K. Behera, J.

1. The petitioner, practising as an Advocate at Rayagada in the district of Koraput, assails the orders of Conviction recorded against him by the Assistant Sessions Judge, Rayagada, holding him guilty of the charge of kidnapping Rebati Palka with intent to have forcible sexual intercourse with her against her will under Section 366 of the Indian Penal Code (for short, 'the Code'), for having wrongfully confined the kidnapped lady under Section 368 of the Code and for committing rape on her under Section 376 of the Code sentencing him to undergo rigorous imprisonment for a period of three years under Section 376 of the Code and for a period of one year for each of the other two offences with a direction that the sentences of imprisonment would run concurrently which have been maintained by the Sessions Judge, Koraput, while stating incorrectly in the initial part of the judgment that the sentence of imprisonment passed under Section 376 of the Code was ore year. Mr. L. Rath, appearing for the petitioner, has challenged the findings, concurrent though they are, as unreasonable and illegal calling for interference by this Court in its revisional jurisdiction, while the learned Additional Government Advocate has contended that the findings by the trial and appellate Courts, being well-founded on the evidence, should not be interfered with.

2. The case put forward by the prosecution was that during the night of June 11/12, 1981, the petitioner kidnapped Rebati Palka (P. W. 1) while she was sleeping outside her house in the summer, night, with her husband (P. W. 2) sleeping nearby, by forcibly dragging her and gagging her mouth and by threatening her on the point of a knife so that she would be forced to have sexual intercourse with him against her will and in that process, dragged her to his house, closed the door, confined her in the room and had sexual intercourse five times against her will and without her consent and ultimately in the early hours of June 12, 1981, she was rescued from the house of the petitioner by her husband (P. W. 2), her father (P. W. 3), P. W. 11 and two Constables (P. Ws. 5 and 10) who were on patrol duty during the night. The first information report was lodged by P. W. 2 at the police station and investigation followed and ultimately, the petitioner was prosecuted.

3. The learned trial Judge as also the learned appellate Judge held that the three charges against the petitioner had been established. Unfortunate as it would seem, notice was not taken of the fact that in the absence of proof that the victim (P. W. 1) was aged under eighteen years, no charge of kidnapping could be said to have been established. The trial Court had estimated the age of P. W. 1 to be about twenty years at the time of her deposition in May, 1982, about a year after the occurrence and the lady doctor (P. W. 8) had, on examination, estimated her age at eighteen to twenty-five years, as per her report (Ex. 4/4). In this state of evidence, the Courts below ought to have held that the prosecution had failed to establish that P. W. 1 was a minor within the meaning of Section 361 of the Code defining 'kidnapping' and that therefore, the charge of kidnapping would fail. No charge had been framed against the petitioner for abduction and the evidence would not sustain a charge of abduction.

4. Although the revisional power of the High Court is as wide as the power of the Court of appeal, it is well-settled that normally, the jurisdiction of the High Court is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. In spite of the wide language of the provision relating to the exercise of revisional jurisdiction, the High Court is not expected to act as if it is hearing an appeal. {See AIR 1979 S. C. 663 : State of Orissa v. Nakula Sahu and Ors. ) This is not, however, to say that concurrent findings must be stamped as infallible because they are concurrent. If the High Court finds that unreasonable findings which cannot be sustained on the evidence have been recorded by the two courts, it would be doing justice by setting at naught such findings. Injustice must not be perpetrated because it has been done two times in a case, Two wrong decisions do not make a right one. No doubt, the burden of showing that concurrent decisions of two Courts are manifestly unjust lies on the person challenging them, but once that burden is successfully discharged, it is not only the right, but also, the duty of this Court to remedy the injustice. There should be no computerised system of the administration of justice.

5. The order of conviction recorded by the trial Court and maintained by the appellate Court under Section 368 of the Code is illegal and misconceived. This section reads :

'Wrongfully concealing or keeping in confinement, kidnapped or abducted person-Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if be had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.'

Section 368 of the Code deals with concealment or keeping in confinement a kidnapped or abducted person which makes the person, other than the kidnapper or abductor, who assists in concealing or confining the kidnapped or abducted person knowing that the kidnapping or abduction has been committed, liable to punishment. A kidnapper who has been convicted under Section 366 cannot be convicted also under this section which refers to some other person who assists in concealing any person who has been kidnapped and not to the kidnapper himself.

6. The orders of conviction and the sentences passed against the petitioner under Secs. 366 and 368 of the Code must, therefore, be annulled.

7. There remains for consideration the charge under Section 376 of the Code for committing rape on P. W. 1. The story of the prosecution as given out by P. W. 1 may be recorded in her own words :

' ... About a year back one night I had slept on the verandah of my house and my husband was sleeping on the road. It was a summer season. In the dead of night, the accused aroused me and asked me to go to his house and I refused. He gagged my mouth with my sari and pointed a knife at me and threatened me not to make hulla and he took me to his home by dragging. The accused closed the door of his room from inside and locked the door. Then he asked me to open my Sari and I refused and he himself forcibly removed my cloth. He also threw away my Lanka and Jacket (blouse) and pointed out knife at me and then he forcibly made me laid down. He also threw away the Konna (cloth over the private part). Then the accused forcibly had sexual intercourse with me, I was helpless and could not resist. I was shouting 'Chadidiyo Agaya, Chadidiyo Agaya'. The accused told me that he will leaves me in the morning.

I heard hulla outside the room during the course of sexual intercourse by the accused. Somebody called me by my name and I responded. The accused opened the door of the room at about cockcrow time. I found my parents' my husband and two constables and some others outside the house of the accused. Manikrai Kosala, my father, asked me as to what happened and I narrated the entire occurrence. Then we went to the police station. We sat there till 10. a. m, when the officers arrived I narrated the entire occurrence to the police officer, who reduced the same to writing and then I put my L. T. I. '

8. Although P. W. 1 had denied in her cross-examination that she had been working as a maid-servant in the house of the petitioner and had been removed from service because of her increased demand for wages, it would clearly appear from the evidence of P. W. 11 that she bad been so serving and she had been removed from the service of the petitioner. The case of the petitioner was that because of this, a false case had been foisted against him with the assistance of the police officers of the locality because the petitioner had made a complaint in the Court against a police officer and had bean complaining to the higher authorities for the inaction on the part of the police officers to check pick-pocketing at Rayagada. No doubt, P. W. 11 had been put leading questions by the prosecution under Section 154 of the Evidence Act because he did not support a part of the. case of the prosecution as sought to be established by it, but it has been a settled-principle of law that the evidence of such a witness is not to be discarded altogether and is to be considered for what it is worth.

9. In order to establish a charge of rape, there must have been sexual intercourse by a man with a woman and it must have been under the circumstances falling under any of the five clauses of Section 375 of the Code. In the instant case, it was for the prosecution to establish that the petitioner had sexual intercourse with P. W. 1 against her will and without her consent. An act of helpless resignation owing to fear would not amount to consent within the meaning of Section 375 of the Coda. Whether sexual intercourse had been committed with or without consent is a question of fact to be determined from the evidence and circumstances obtaining in a particular case. It is not necessary for an accused to plead consent on the part of the woman and it is sufficient if such a theory can be spelt out of the evidence. (See AIR 1977 S. C. 1307 : Pratap Misra and Ors v. State of Orissa).

10. As the evidence of P. W. 1 would indicate, during the summer night, a number of persons were sleeping on the street. Her husband and father were sleeping nearby. There were row of houses in front of the house, she had admitted that she did shout when she was dragged, but later her mouth was gagged. If she did shout, it would attract the attention of the persons sleeping nearby including her husband (P. W. 2).

11. P. W. 1 had asserted in her evidence that she had been threatened on the point of a knife when she was dragged and he was also silenced by the show of a knife when the petitioner had sexual intercourse with her against her will and without her consent. This fact was conspicuous by its absence in the first information report. The learned appellate Judge dismissed this omission without taking serious notice of it by observing that a, first information report was not supposed to contain very part of a prosecution case. There can be no dispute about the egal proposition that the first information report is not an encyclopaedia nd it is not the be all and end all of a case. At the same time, as has been held by the Supreme Court in AIR 1975 S. C. 1026 : Ram Kumar Pande v. State of Madhya Pradesh, omissions of important facts affecting the probabilities of the case are relevant for consideration under Section 11 of the Evidence Act in judging the veracity of the prosecution case. Designedly and deliberately, this belated plea of the prosecution was put in the mouth of P. W. 1 in order to demolish a theory of consent. Omission of this important fact in the first information report could not, therefore, be considered to be inconsequential and it was of great significance. That apart, if her mouth had been gagged and she was being dragged by the petitioner evidently by the other hand, where was the knife It was highly unlikely that the petitioner was holding a knife in one hand and dragging P. W. 1 by the same hand. The belated theory set up by the prosecution that the petitioner had silenced P.W. 1 by the show of a knife when she was dragged from the verandah of her house and when she was ravished would undoubtedly appear to be a myth.

12. If the petitioner had dragged P. W. 1, an adult and married lady, as deposed to by the latter, she would offer utmost resistance and exercise her might to desist the petitioner now dragging her by force. There was no evidence that she had done so. If she had been dragged to a distance of about fifty cubits where the house of the petitioner was situated, as testified by P. W. 1, she would have sustained a number of abrasions on her person, but she had but one injury on her back which could be caused by finger nails, as testified by the doctor who had examined her.

13. It was not in the evidence of P. W. 1 that after she was kept inside the house of the petitioner and until she was rescued, she ad offered resistance or even shouted out. There was no evidence that er mouth had been gagged all the time. This would render the rosecution story highly improbable.

14. While P. W. 1 had accused the petitioner as her sexual assailant when she was examined-in-chief, she had stated in her cross- examination that when she had slept, 'somebody' roused her by pulling her hand and 'that person' gagged her mouth and tied her hands with her saree and dragged her. She had further stated that the 'culprit' dragged her upto his house and the 'culprit' pushed her outside the door on the verandah in the early hours of the morning and thereafter closed the door from inside the house and slept. She had stated in her cross- examination that she had lost her senses which she regained at cockcrow time and at that time, she thought that she was in the house of the petitioner and not in her house. Thus, on her own showing, some culprit had dragged her and brought her away while she was sleeping outside her house. If she had lost her senses until cockcrow time, she could not be in a position to say as to who had sexual intercourse with her without her consent, as rightly urged on behalf of the petitioner by the learned counsel appearing for him. What has been stated by P. W. 1 in her cross-examination is in consonance with the evidence of a P.W. 11 who had roused the husband and father of P. W. 1 from their sleep. This witness had testified thus :

'...In the night of occurrence there was feast in the house of the accused. Chicken was prepared and wine was also served. It was over by 11 p. m. I was engaged to kill the fowl. I also took my meals there. I left the house of the accused at about 12 p. m. At about 2 a. m., when I woke up I found a person coming from the side of the house of accused and he stood in front of the house of prosecutrix. I went back and pretended to be asleep. I found that the prosecutrix proceeded ahead towards the house of the accused followed by that person. I did not notice to which house the girl entered. I aroused the persons who had slept nearby and reported them what I saw. The husband and father of the prosecutrix were also aroused. I accompanied Kalia to search out the prosecutrix. While we were searching the prosecutrix, we found her under a tree within the premises of the accused's house. It was a Narangi tree. When we went near the prosecutrix we found a person standing near her and he jumped over the fence and fled away. The accused was inside the house closing the door from inside. The husband of the prosecutrix pushed the prosecutrix inside the Jaffary of the accused and put a lock from inside the Jaffary. Then I found two police constables on duty including P. W. 10. At that time the persons present there reported that the prosecutrix was inside. When the constables asked to open the door the prosecutrix opened the lock and came out. The prosecutrix reported the constables that the accused had forcible intercourse with her. She told this being tutored by her parents. She was taken to the police station by the constables....'

15. Evidence had been led by the prosecution through its witnesses that immediately after her rescue, P. W. 1 had given out that she had been forcibly dragged by the petitioner inside his house and was subjected to forcible sexual intercourse by him. This had been deposed to by her husband (P. W. 2) and her father (P. W. 3) Both these witnesses had, however, not stated about it in their statements recorded under Section 164 of the Code of Criminal Procedure in the course of investigation. This could not be said to be an unimportant, omission and would vitally affect their evidence as by such statements, the prosecution had sought to build a case that it was a case of sexual intercourse without the consent of P. W. 1. I must record at this stage that to take steps for recording the statements under Section 154 of the Code of Criminal Procedure of the husband and father of P. W. 1 was certainly an extraordinary step taken by the investigating agency because it must have thought that even these persons could not also be relied upon and that, therefore, they should be bound down to their previous statements recorded by a Magistrate so that they would not give a go-by to their statements at the stage of trial. No fault can be found with the investigating agency for taking steps to get the statements of important witnesses recorded by a Magistrate in the course of investigation, but to have the statements of the husband and the father of the victim (P. W. 1) recorded was certainly a highly suspicious feature which would affect the bona fides of the prosecution case and of this, no serious notice had been taken by the Courts below.

16. The evidence of the two constables (P. Ws. 5 and 10) with regard to the rescue of the victim from the house of the petitioner where they had gone on being informed by P. W. 2 who was in search of his wife did not read well and was not to be accepted. These witnesses had testified that they had heard P. W. 1 crying out inside the house to leave her and that she narrated the occurrence to them. They had not stated to the Investigating Officer in their statements about any such statements having been made by P. W. 1. These two constables had claimed in their evidence that they had been doing patrol duty during the night. P . W. 5 had stated that he had maintained a note book, but had admitted that he had not noted this occurrence in it. According to P. W. 10, he did not maintain any personal diary and had maintained a note book in which he used to write down important events which he noticed during his night patrol duty. He had admitted that he had not noted down in his note book about the occurrence in question. The evidence of P. Ws. 5 and 10 about the rescue of P. W. 1 and about what she had narrated to them could not be accepted.

17. Another highly suspicious feature had not been taken due notice of by the Courts below. There had been unexplained delay in lodging the first information report and as the evidence would show, it had falsely been noted in the formal first information report that it had been lodged at 6 a. m. P. W. 1 had stated in her evidence that after going to the police station, they sat there till 10 a. m., when the police officers arrived and she narrated the occurrence to a police officer who recorded her report and she put her left thumb impression. P. W. 2 reduced the time of report to 9 a. m- in his evidence at the trial. P. W.3 further reduced it to 8 a. m. The Investigating Officer had stated that the report had been lodged at 6 a. m. This improvement made by the prosecution from stage to stage should not have been lost sight of. If the report had actually been lodged at 6. 00 a, m,, as recorded in the first information report, it was highly unlikely that P. W, 1 would have been sent for medical examination long thereafter at about mid day. As has been laid down by the Supreme Court in AIR 1973 S. C. 501 : Thuha Kali v. The State of Tamil Nadu, first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the parts played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained.

18. There was but one injury on the person of P W. 1 which could be caused by finger nails. There was no injury on the person of the petitioner. Absence of injuries on the aggressor or the aggressed, by itself, would not give an indication as to whether sexual intercourse had been committed with or without consent. Each case would depend on its own facts and circumstances. Rut regard being had to the case presented by P. W. 1 that she had been forcibly dragged to a distance and in addition, the story presented by her that the petitioner had sexual intercourse with her five times, it would have been normal and natural on her part to offer serious resistance in which case mere injuries were likely to have been sustained by her and injuries would have been noticed on the person of the petitioner. In the circumstances of the case, absence of any injury on the person of the petitioner would be a telling circumstance militating against the theory sought to be established by the prosecution.

19. It was in evidence that some blood and semen bad been noticed in the saree of the petitioner sent for chemical examination. In the absence of any other legal and cogent evidence pointing to the guilt of the petitioner, this circumstance, especially in the case of an adult and married woman, cannot be a guilt-pointing one.

20. At the hearing, the learned Addl. Government Advocate has invited my attention to the principles laid down in AIR 1981 S. C. 559 : 1980 Cri. L. J. 1344 Rafia v. State of Uttar Pradesh and has submitted that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. He has also placed reliance on the observations and views of the Supreme Court with regard to the appreciation of the evidence in a case of rape in AIR 1983 S. C. 753 : 1983 Cri. L. J. 1096 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat. As has been held therein, over much importance cannot be given to minor discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, more so when the all important 'probabilities-factor' echoes in favour of the version narrated by the prosecution witnesses. It has been laid down that corroboration is not a sine qua non for a conviction in a rape case and in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration would be adding insult to the injury. The Supreme Court has observed therein that on principle, the evidence of a victim of sexual assault stands on par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. Their Lordships have observed :

'...We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualifications : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities-factor' is found to be out of tune.'

21. In the instant case, I must hold, for the reasons aforesaid, that the 'probabilities-factor' is found to be out of tune and renders the evidence of P. W. 1 unworthy of credence. As earlier indicated, the evidence of P. W. 1 has no intrinsic worth and cannot be accepted and in addition, there is no corroborative evidence. Bearing in mind the human psychology and behavioural probability when assessing the testimonial potency of the victim's version, it would be noticed in the instant case that a fantastic and grotescue story had been presented by the prosecution. The findings of guilt recorded by the trial and appellate Courts are unreasonable and unsustainable and to allow such findings to stand would amount to travesty of justice.

22. I would allow the revision and set aside the orders of conviction/and sentences passed against the petitioner.


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