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2006 Supreme(Ori) 175
High Court Of Orissa
R. N. Biswal
STATE OF ORISSA - Appellant
Versus
SARAT CHANDRA ROUT - Respondent
Government Appeal 10 Of 1993
Decided On : 03/09/2006
B.K.NANDA
Headnote:Indian Penal Code, 1860 — Sections 376, 354 — Prosecution of accused persons two in number u/s 376/394/34 IPC — Prosecution case that accused Respondent and co-accused caught hold of victim when she had gone to attend second call of nature behind a veterinary hospital and committed rape on her —— Trial Court disbelieved allegation of rape due to delay in lodging FIR, improbability of commission of rape in view of time, place and fact that date of occurrence was a weekly hat day and because of non-
examination of material independent witnesses — Trial Court while acquitting Respondent accused u/s 376 IPC convicted him u/s 354, IPC — Appeal against acquittal — In an appeal against acquittal, if findings of Trial Court is reasonably possible, even if another view could have been taken it should not be interfered with — Delay in lodging FIR not satisfactorily explained — Evidence of victim that she lodged FIR when O.I.C of Orkel P.S. came to her village two days after occurrence and villagers persuaded her — However deposition of victim in Court on examination that she preferred not to lodge FIR as her father was not present in house — Failure on part of prosecution to examine prosecution witnesses before whom victim disclosed incident just after occurrence — Nothing was stated about any sexual assault by victim to prosecution witnesses — Victim only stated that accused persons misbehaved with her — Finding of acquittal recorded by Trial Court reasonably possible in view of facts and circumstances of case — Appeal having no merit dismissed.(Para 6)
Facts of the case:
1.The petitioner herein in the instant case was prosecuted along with co-accused u/s 376/394/34 IPC. According to prosecution case accused Respondent and co-accused caught hold of victim when she had gone to attend second call of nature behind a veterinary hospital and committed rape on her. Trial Court disbelieved allegation of rape due to delay in lodging FIR, improbability of commission of rape in view of time, place and fact that date of occurrence was a weekly
hat day and because of non-
examination of material independent witnesses. Trial Court while acquitting Respondent accused u/s 376 IPC convicted him u/s 354, IPC.
2.Present Appeal has been filed against impugned order of Trial Court
3.Findings of the Court : The Court held that delay in lodging FIR was not satisfactorily explained. As per evidence of victim in FIR, she lodged FIR when O.I.C of Orkel P.S. came to her village two days after occurrence and villagers persuaded her. However deposition of victim in Court on examination was that she preferred not to lodge FIR as her father was not present in house. Failure on part of prosecution to examine prosecution witnesses before whom victim disclosed incident just after occurrence. Nothing was stated about any sexual assault by victim to prosecution witnesses. Victim only stated that accused persons misbehaved with her. Finding of
acquittal recorded by Trial Court held reasonably possible in view of facts and circums-tances of the case. Appeal having no merit was dismissed.
Result: Appeal dismissed.
R. N. BISWAL, J.
( 1 ) THIS appeal has been directed against the judgment and order dated 11. 8. 1992 passed by the c. J. M.-cum-Assistant Sessions Judge, koraput-Jeypdre camp at Malkangiri in sessions Case No. 96 of 1991 wherein he acquitted the accused-respondent of the offence under Section 376 of i. P. C. and convicted and sentenced him for the offence under Section 354 of i. P. C. only.
( 2 ) AS per the prosecution case on 22. 8. 1991 at about 2. 00 P. M. while the victim (P. W. 1) had been to attend the second call of nature, behind the veterinary office of Kudumulugumma, the accused-Respondent and co-accused Nalu Dora came near her and while accused Nalu caught hold of her, accused-Respondent ravished her against her will and without her consent. It was also alleged that accused Nalu, snatched away her gold ring. As depicted in the F. I. R. , because of fear of casting of slur in her good name she was in double mind to lodge F. I. R. or not. But when the O. I. C. of Orkel I P. S. came to her village and some villagers asked, her to report the incident, she lodged the report on 24. 8. 1991. As the allegations contained in the report revealed a cognizable case for the offence under Sections 376/s94/ 34 I. P. C. , the o. I. C. treated it as F. I. R. , sent it to the p. S. for registration and took up investigation. In course of investigation the I. O. seized one umbrella and one 'dhala' which the victim had carried to the spot, the wearing apparel of the accused-respondent and the alleged victim crash of rs. 180/- and prepared seizure lists in respect thereof. He also seized one he-goat as it was revealed during investigation that the accused persons had purchased the same and another he-goat which had already been killed, by the sale proceeds of the gold ring. He got the victim medically examined and after completion of investigation finding a prima facie case against the accused persons submitted charge sheet against them for the offence under Sections 376/294/34 of i. P. C. The plea of the accused persons was complete denial of their involvement in the crime, in question.
( 3 ) IN order to prove its case the prosecution examined ten witnesses, of whom P. W. 1 is the victim, P. Ws 2 to 4 and 6 are the witnesses before whom P. W. 1 disclosed the alleged incident, P. W. 5 is a seizure witness, P. Ws. 7 and 8 are doctors and P. Ws. 9 and 10 are boss. P. W. 6 turned hostile to the prosecution. The accused persons preferred not to examine any witness. After assessing the evidence on record the trial Court did not believe that accused Sarat committed rape on the alleged victim, but found him guilty for the offence under Section 354 of I. P. C. and Convicted him thereunder. Similarly, he Acquitted the co-accused for the offence under Section 392 of I. P. C. , but convicted him for the offence under section 379 of I. P. C. Both of them were sentenced to undergo R. I. for one year each. Being aggrieved with the said judgment and order, the State of Orissa filed criminal Misc. Case No. 1981 of 1992 for leave to appeal. However, leave was granted to file appeal against the order of acquittal of the accused-respondent alone of the offence under Section 376 of i. P. C. and the criminal Misc. case was directed to be registered as Govt. Appeal. Accordingly, the aforesaid Govt. Appeal was registered.
( 4 ) LEARNED Addl. Standing counsel submitted that P. W. 1, the victim in her evidence before the Court below described in detail how of she was being ravished by the accused respondent, while the co-accused gagged her mouth. Immediately after the occurrence she disclosed the incident before P. W. 2, her husband and other inmates of the house. P. W. 7, the lady Assistant Surgeon opined that the possibility of commission of rape on the victim could not be ruled out. So the trial court ought to have convicted the accused-respondent for the offence under section 376 of I. P. C. , particularly when it believed a part of the evidence of P.
