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2024 DAILYLAW 1493 (ORI)

Nabakishore Rana v. State of Orissa

2024-05-20

D Dash

body2024
JUDGMENT : D.Dash, J. 1. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 25th February, 2021 passed by the learned Sessions Judge-cum- Special Judge, Jajpur in Spl. G.R. No.131 of 2016, arising out of Badachana P.S. Case No.146 of 2016. The Appellant (accused) thereunder has been convicted for commission of offence under section 376 of the Indian Penal Code, 1860 (for short, ‘the IPC ’), and section 3 (2) (v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1985 (for short, ‘SC & ST (PA) Act). Accordingly, the he has been sentenced to undergo rigorous imprisonment for for seven (7) years each for the offence under section 376 of the and section 3(2)(v) of the SC & ST (PA) Act and fine of Rs.5000/- on each count and in default to undergo further rigorous imprisonment for three months. 2. Prosecution case is that the victim (P.W.1) in the year 2016 was reading in VIIT School of Nursing at Dhanamandal and was taking tuition under the accused. The status of the victim being poor and she too being a member of Scheduled Caste Community, the accused was not charging any fee from her. However, the victim used to do some domestic work in the house of the accused. On 10.09.2016, the victim lodged a written report with the Inspector-in-Charge (IIC) of Badachana Police Station stating therein that the accused having influenced her by promising to marry and giving such assurance, had kept with her, the physical relationship, despite protest, and on account of that she had become pregnant. It was also stated that the accused was asking her to terminate the pregnancy without disclosing the fact to anyone else and was giving threat that unless she (P.W.1) would do so, her life would be at risk and be killed. It was also stated that when the victim (P.W.1) asked the accused to go for performance of the marriage, the accused left the house and his mobile phone remained in a switched off mode. The victim (P.W.1) thereafter, having waited for five months remaining in deep morrows, lodged the written report. The IIC receiving the said written report, treated the same as FIR and registered the case. The victim (P.W.1) thereafter, having waited for five months remaining in deep morrows, lodged the written report. The IIC receiving the said written report, treated the same as FIR and registered the case. Since the case concerned with the commission of offence under section SC & ST (PA) Act, the IIC requested the Sub-Divisional Police Officer (SDPO) to take up the investigation, being so competent to do so as ordained in law. 3. In course of investigation, the I.O (P.W.15) having received the FIR (Ext.1) from the IIC, examined the Informant (Victim- P.W.1) and other witnesses. He (P.W.15) also visited the spot and prepared the spot Map (Ext.8). Having searched for the accused; the I.O (P.W.15) arrested the accused. On 11.09.2016, the wearing apparels of the victim (P.W.1) were seized and the victim (P.W.1) was sent for medical examination. The details of the caste particulars of the victim (P.W.1) and the accused were then obtained from the Tahasildar, wherefrom it was confirmed that the victim is a member of Scheduled Caste being “Dhoba” by caste and the accused is neither a member of Scheduled Caste nor Scheduled Tribe. The I.O (P.W.15) then asked the Principal of the Badachana Junior Women’s College to provide all details as regards the accused, who was then working there in the college. The date of birth of the accused was ascertained and so also the school register of VIIT School of Nursing at Dhanamandal was verified. The wearing apparels of the accused were seized under seizure list (Ext.6). All those seized incriminating articles were sent for chemical examination through Court. In course of investigation, it was ascertained that the mother of the victim (P.W.1) had committed suicide after having come to know about the incident. One U.D. Case was registered for the same; the papers prepared in course of enquiry therein were also seized in connection with the present case. The family members of the deceased had cremated the dead body of the mother of the victim without informing the police. 4. On completion of investigation, the I.O (P.W.15) submitted the Final Form placing the accused to face the trial for commission of offence under section 376/506/306 of the IPC and section 3(2)(v)(va) of SC & ST (PA) Act. The family members of the deceased had cremated the dead body of the mother of the victim without informing the police. 4. On completion of investigation, the I.O (P.W.15) submitted the Final Form placing the accused to face the trial for commission of offence under section 376/506/306 of the IPC and section 3(2)(v)(va) of SC & ST (PA) Act. The learned Special Judge, receiving the said Final Form, took cognizance of the said offences and after observing all the legal formalities, framed the charge for commission of the said offences against the accused and that is how the trial commenced. 5. During trial, the prosecution in total examined fifteen (15) witnesses, out of whom as already stated P.W.1 is the victim and also the Informant, who had lodged the FIR (Ext.1). P.W.3 is the father of the victim (P.W.1) whereas P.W.4 is the uncle of P.W.1 that is, the brother of P.W.3. P.W.9 and P.W.14 are the cousin and maternal uncle of the victim (P.W.1) respectively. A co-villager has been examined as P.W.7 whereas P.W.12 is the Medical Officer, who had examined the victim (P.W.1) and as stated P.W.15 is the I.O. The prosecution besides leading the evidence by examining above witnesses has proved several documents which has been admitted in evidence and marked as Ext.1 to Ext.15. 6. The Trial Court upon examination of evidence and their scrutiny has held the prosecution to have established the charge against the accused for commission of offence under section 376 of the IPC and section 3(2)(v) of SC & ST (PA) Act. The accused has accordingly been sentenced to undergo rigorous imprisonment for 7 years for the offence under section 376 of the and 7 years for the offence under section 3(2)(v) of the SC & ST (PA) Act and pay fine of Rs.5000/- on each count with the stipulation of undergoing rigorous imprisonment for three months for each default, being further said that the substantive sentences would run concurrently. 7. Learned counsel for the Appellant (accused) inviting the attention of the Court to the evidence of the victim (P.W.1) submitted as to how it becomes extremely hazardous to rely upon the evidence of P.W.1. He further submitted that the evidence of P.W.1 even if accepted for a moment, stands highly shaky and unbelievable and it cannot be relied upon to form the basis of a finding of guilt against the accused. He further submitted that the evidence of P.W.1 even if accepted for a moment, stands highly shaky and unbelievable and it cannot be relied upon to form the basis of a finding of guilt against the accused. He submitted from the circumstances emanating in evidence of P.W.1, his father P.W.2, his paternal uncle. P.W.4 as to how unsafe the same to be relied upon to fasten the guilt upon the accused. He, therefore, submitted that the Trial Court committed grave error in convicting the accused simply taking the statement of the victim (P.W.1) recorded under section 164 of the Cr.P.C on an erroneous view of law as the substantive evidence. Thus be submitted that basing upon the evidence of P.W.1 as laid, the Trial Court could not have held the accused guilty of the offences for commission of which he has been convicted and sentenced. He therefore urged that the impugned judgment of conviction and sentence are unsustainable. 8. Learned Counsel for the Respondent-State submitted that the evidence of P.W.1 coupled with the evidence of her father and uncle as also the other evidence when establish the age of the victim (P.W.1) at the initial point of time, when the accused began to sexually exploit P.W.1 was less than 16 years; relying upon the evidence of P.W.1 that the accused had sexually exploited her causing pregnancy; the Trial Court did commit no mistake in holding the accused guilty for commission of offence under section 376 of the IPC and as the victim being a member of scheduled caste, had been so exploited, the conviction of the accused for commission of the offence under section 376 of the and section 3(2)(v) of the SC & ST (PA) Act are not liable to be interfered with. 9. Keeping in view the submissions made, I have carefully read the judgment of conviction and have travelled through the deposition of all the witnesses, more importantly that of P.W.1. I have also perused the documents admitted in evidence. 10. In order to address the rival submission and accordingly judge the sustainability of the finding of conviction returned by the Trial Court as against the accused, it would be first apposite to examine the evidence of the star witness for the prosecution that is the victim (Informant-P.W.1). She in her FIR has not mentioned her age. 10. In order to address the rival submission and accordingly judge the sustainability of the finding of conviction returned by the Trial Court as against the accused, it would be first apposite to examine the evidence of the star witness for the prosecution that is the victim (Informant-P.W.1). She in her FIR has not mentioned her age. It was, however stated that the accused having allured her of marrying her and giving an assurance on that score, had sexually exploited her, despite protest and she stated to be pregnant carrying five-month-old child in her wound, when she lodge the FIR. The FIR was lodged after some period of waiting as the accused absconded from his house when told by P.W.1 to fulfil the promise that he had given while having the sexual relationship with the victim (P.W.1). P.W.1 although does not state about her age when she was first sexually exploited by the accused, when she gave her evidence in the year 2021, she has given her age to be 23 years. She has stated her age to be about 15 years when she has further mentioned that sometime in the year 2013, her relationship with the accused developed. She has, however, clarified that the physical relationship with the accused started in the year 2016 and for that she became pregnant. She states to have delivered a still born baby later. When above is the oral evidence relating to the age of the victim (P.W.1), no primary document in support of the same is forthcoming in evidence. I then find her to have stated that she had kept physical relationship with the accused on her own consent. Most surprisingly P.W.1 has gone to state that she had been compelled to initiate the case by the members of their caste community. This P.W.1 with the permission of the Court has been cross-examined by the prosecution and then when her attention has been drawn to her statement recorded under section 164 of the Cr.P.C., she has stated to have told that the accused compelled her to keep physical relationship with her and although she tried to refrain the accused, the accused keep forcible sexual relationship. She has also admitted to have stated before the Magistrate that the accused assured to marry her by divorcing his wife and continued the sexual relationship with her, and that as he assured like that, such relationship continued and she (P.W.1) became pregnant which had been conveyed to the accused but then again, she has stated as under:- “It is not a fact that the accused committed sexual intercourse with me against my will and consent.” During cross-examination, this P.W.1 states to have deposed like that in Court that her family had compelled her to tell the falsehood when in fact the accused had never compelled her to keep sexual relationship with him. She then again states the following:- “In that 164 Cr.P.C. statement, I deposed that there is no truth in the FIR lodged by me at Badachana Police Station and that being compelled and intimidated by the caste people, I lodged that report and that our caste people threatened to ostracize our family and that I also deposed before the Magistrate at Jajpur being compelled by the caste people and that the accused had never lured me and that I kept relationship with him on my will and consent and that he never threatened anyone to kill.” When it was her version that her mother being shocked committed suicide, she during cross-examination has stated that her mother was having blood pressure and being under constant mental pressure for financial stringency, she committed suicide. P.W.3, the father of the P.W.1 has not supported the prosecution case and turned hostile. That is also the happening in case of the maternal uncle of the victim examined as P.W.4 and so also the co-villager P.W.7 and P.W.9 whose cousin is the victim. P.W.12 the Doctor states that by the time of medical examination, the victim was carrying eight-month-old child in her womb and that P.W.1 states to have given birth latter, a still-born baby. P.W.14, who is the maternal uncle of P.W.1 has also not supported the prosecution case. P.W.12 the Doctor states that by the time of medical examination, the victim was carrying eight-month-old child in her womb and that P.W.1 states to have given birth latter, a still-born baby. P.W.14, who is the maternal uncle of P.W.1 has also not supported the prosecution case. Thus there being no convincing evidence as to the age of the victim that she was below 16 years when the physical relationship between the accused and the victim established and the victim (P.W.1) having resiled from her previous version that she being given an assurance of marriage and being allured by the accused was sexually exploited by the accused and when rather states to have surrendered herself for having sexual intercourse with the accused out of her own will and volition without any compulsion from the side of the accused and thus was a consenting party and having further stated to have been compelled to lodge the FIR at the instance of her family members stating some falsehood; the finding of guilt of the accused as has been returned by the Trial Court convicting him for commission of offence under section 376 of the IPC and section 3(2)(v) of SC & ST PA Act cannot be sustained. Therefore, the judgment of conviction and order of sentence impugned in this appeal are liable to be set aside. 11. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 25th February, 2021 passed by the learned Sessions Judge-cum-Special Judge, Jajpur in Spl. G.R. No.131 of 2016 are hereby set aside.