Back
ORISSA HIGH COURT
Sashikanta Mishra, J.
Mukunda Parichha – Appellant
versus
State of Odisha – Respondent
Crl.A.No.299 of 2015
Decided on 6.1.2023
Counsel for the Parties:
For the Appellant:Mr. Manoj Kumar Panda, Advocate
For the Respondent: Mr. Priyabrata Tripathy, Addl. Standing Counsel
IMPORTANT POINTS
(1) Rape – Sole testimony of victim is adequate to prove offence of rape provided it has a ring of truth in it and is otherwise truthful and believable.
(2) Extra-judicial confession must be voluntary and without any kind of coercion or pressure from any quarter.
Headnote:
(A) Indian Penal Code, 1860 – Sections 376 and 506(ii) – Indian Evidence Act, 1872 – Section 25 – Rape and criminal intimidation – Conviction and sentence – Sole testimony of victim is adequate to prove offence of rape provided it has a ring of truth in it and is otherwise truthful and believable – There is no evidence that victim or her father had made any complaint in village which could be basis or reason for convening meeting – Purpose for which meeting was held is not clear – So-called letter of threat received by villagers was never proved nor was minutes of meeting – So-called extra judicial confession cannot be said to have been voluntarily made so as to be accepted – If a minor girl like victim was forcibly raped, it is only natural that she would have sustained injuries not only on her private parts but also on her body – There is nothing in evidence to show that victim had sustained any such injuries – Impugned judgment of conviction and sentence cannot be sustained in eye of law – Judgment of conviction and sentence set aside. (Paras 11, 13, 14, 16 and 17)
(B) Criminal Law – Appreciation of evidence – Court must distinguish between a mere possibility and probability because a case is to be decided on broader probabilities – Merely because an act is theoretically possible does not necessarily mean that same is probable under facts and circumstances of case – Court is required to make a broader assessment of evidence on record to find out whether version of witnesses suggest probability of occurrence having taken place – If two views are possible, one favouring prosecution and other favouring accused in peculiar circumstances of case, latter has to be accepted. (Para 15)
Result: Appeal allowed. Accused acquitted.
JUDGMENT
Sashikanta Mishra, J.—The Appellant challenges the judgment dated 9th March, 2015 passed by learned Addl. Sessions Judge, Parlakhemundi, Gajapati in S.T. No.54/2012 whereby he was convicted for the offence under Section 376 and 506(ii) of I.P.C. and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.20,000/-, in default to undergo further Rigorous Imprisonment for one year for the offence under Section 376 I.P.C. and Rigorous Imprisonment for three years and to pay fine of Rs.5,000/-, in default to undergo Rigorous Imprisonment for further six months for the offence under section 506(ii) I.P.C. Both the sentences have been directed to run concurrently.
2. The prosecution case, in brief, is that on 13th July, 2012 when the victim, who was a minor girl aged about 13 years, was preparing to go to School at about 8 A.M., the accused came to her house and informed that he had been directed by Naxals to call her to the forest. When the victim asked the reason, she was told that the Naxals would cut her throat if she did not obey. Thus, the victim being frightened accompanied the accused to the nearby forest at the end of the village where no one was present. Accused informed the victim that he would save her from the clutches of the Naxals in exchange for having sex with him, which was opposed by her. The accused however, put her on the ground forcibly and committed rape. The victim was further threatened that he would cut her throat if she disclosed the occurrence before any person. On 12th September, 2012 there was a gathering of about 500 people for discussion regarding a letter of threat issued by Naxals to the Sarpanch of the Panchayat. In that meeting the accused admitted to have raped the victim despite her protest. As such on 13th September, 2012, the informant lodged a written complaint before the Adava P.S. basing on which P.S. Case No.30/2012 was registered corresponding to G.R. Case No.148/2012 of the Court of learned J.M.F.C., R. Udayagiri. Upon completion of investigation charge sheet was submitted under Sections 376/506 of I.P.C. and cognizance was taken and the case was committed to the Court of Session for trial.
3. The defence took the plea of denial and false implication.
4. To prove its case, the prosecution examined 12 witnesses including P.W.1 as the victim. The prosecution also proved 13 documents and two witnesses were examined on behalf of the accused.
5. The Trial Court framed the following points for determination.
(i) Whether on dated 13.7.2012 at about 8 A.M. inside forest near village Katama the accused had committed rape over the victim who was a minor girl by having forcible sex with her.
(ii) Whether on the above day, date, time and place the accused had criminally intimated the victim by threatening to kill her from like in the event she discloses the fact before anyone with an intention to cause alarm to her ?
6. On the first point, the Trial Court scanned the evidence on record particularly, that of the victim (P.W.1), her mother (P.W.7), villagers (P.Ws.4 and 6) and the two doctors (P.Ws.9 and 10) to hold that the prosecution successfully proved the allegation of rape by the accused on the victim beyond all reasonable doubts and thus, found him guilty under Section 376 of I.P.C. On the second point, the Trial Court took note of the version of the victim that the accused had repeatedly threatened to cut her throat firstly, to commit rape on her and secondly, if she disclosed such fact before any person. Thus, the Trial Court held the Appellant also guilty for the offence under Section 506 I.P.C.
7. Heard Mr. M.K.Panda, learned counsel for the Appellant and Mr. P. Tripathy, learned Addl. Standing Counsel for the State.
8. Assailing the impugned judgment, Mr. Panda has raised the following contentions:—
(i) The so called extra judicial confession of the accused before the villagers in the meeting cannot be treated as admissible in view of the evid
