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2019 Supreme(Ori) 478
IN THE HIGH COURT OF ORISSA, CUTTACK
Shri D. Dash, J.
Surendra Kumar Mallick @ Rabi - Appellant
Versus
State Of Orissa - Respondent
CRLREV No. 298 of 2005
Decided On : 25-03-2019
Mr. R.N. Prusty and Mr. C.R. Kar, Advocates, for the Appellant; Mr. Karunakar Nayak, Additional Standing Counsel, for the Respondent
Cases Referred
Dr. Dhruvaram Muralidhar Sonar vs. State of Maharashtra AIR 2013 SC 327
Raiu vs. State of U.P., (2008) 15 SCC 133
The central legal point established in the judgment is the importance of judicial scrutiny in cases of rape, the requirement of corroboration, and the principles of consent under Section 90 of the IPC.
Headnote:
Rape - Indian Penal Code - Section 376 - Summary of Acts and Sections: The court discussed the provisions of Section 376 of the Indian Penal Code and emphasized the importance of scrutinizing the testimony of the victim in cases of rape. It highlighted the need for judicial scrutiny to prevent unwarranted convictions and the requirement of corroboration in such cases. The court also referred to the principles of consent under Section 90 of the IPC and emphasized the need for voluntary participation and the absence of consent under fear or misconception.
Fact of the Case:
The petitioner filed a revision challenging the judgment convicting him for the offence of rape under Section 376 of the Indian Penal Code. The victim alleged that the accused attempted to sexually assault her and threatened her with a knife. The trial court convicted the accused based on the victim's testimony, and the appeal was unsuccessful.
Finding of the Court:
The court analyzed the evidence and found that the prosecution case did not lead to unqualified satisfaction required to establish guilt. It highlighted irreconcilable inconsistencies and omissions in the prosecution's case, leading to the conclusion that the accused did not have sexual intercourse with the victim against her will. Consequently, the court set aside the judgment of conviction and ordered the accused's release.
Issues: The key issues revolved around the credibility of the victim's testimony, the presence of corroboration, the delay in lodging the FIR, and the conduct of the victim and her husband.
Ratio Decidendi: The court emphasized the need for judicial scrutiny in cases of rape, the requirement of corroboration, and the principles of consent under Section 90 of the IPC. It highlighted the importance of analyzing all relevant circumstances to ascertain consent and emphasized the absence of unqualified satisfaction to establish guilt.
Final Decision: The court set aside the judgment of conviction and ordered the accused's release, concluding that the prosecution case did not lead to unqualified satisfaction required to establish guilt.
JUDGMENT
Justice D. Dash, J. - The petitioner, by filing this revision, has prayed for examination of the legality and propriety of the judgement dated 20.01.2005 passed by the learned Ad hoc Additional Sessions Judge (FTC), Jagatsinghpur in Criminal Appeal No.08 of 2003 (Criminal Appeal No.33 of 1999) confirming the judgment of conviction dated 20.09.1999 passed by the learned C.J.M.-cum-Assistant Sessions Judge, Jagatsinhgpur in S.T. No.528 of 1997 (Trial No.6 of 1998), convicting the petitioner (accused) for the offence under section 376 of the Indian Penal Code (in short, 'the IPC') followed by the order of sentence of seven years of rigorous imprisonment and payment of fine of Rs. 2000/- in default to undergo rigorous imprisonment for six months and further payment of the same to the victim in case of realization.
2. The prosecution case, in short for the purpose, is that the husband of the victim (p.w.8) works in Paradeep Phosphates Limited (PPL) and he with his wife (victim-p.w.5) reside in the PPL township. It is alleged that on 1.8.1996 around 1.00 pm, when the victim was taking rest, the accused suddenly came inside the house, lifted her saree and attempted to commit sexual intercourse. The victim then resisted. It is further stated that the accused then wanted to kill the victim showing the knife. Hearing hullah, the husband of the victim (p.w.8) came to the spot when the accused ran away. Information being lodged at the PPL police outpost, Paradeep P.S. Case No.225 of 1996 was registered against the accused for offence under Section 376 I.P.C. and the investigation commenced.
On completion of the investigation, charge-sheet being placed against the accused, finally he faced the trial.
3. In the trial, the accused took the plea of complete denial and false implication due to prior land dispute. The prosecution examined twelve witnesses, including the victim, p.w.5 and her husband, p.w.8, the defence has examined none. The prosecution has further proved the FIR as Ext.4, the medical examination report of p.w.5 (Ext.1) and other documents.
The accused has proved the certified copy of the order dated 27.11.1996 passed by the Executive Magistrate in Misc. Case No.11 of 1994 and that has been marked as Ext.A.
4. The trial court, on analysis of evidence, has convicted the accused for the offence under Section 376 I.P.C. and sentenced him as aforesaid. The appeal carried by the accused has not yielded any fruitful result. Hence, the revision.
5. Heard learned counsel for the petitioner and the learned Additional Standing Counsel. I have gone through the judgments passed by the courts below.
6. Having lent anxious consideration to the materials on record as well as competing submission based thereon and regard being had to the charge levelled against the petitioner, the fulcrum of the prosecution case logically is the testimony of the victim. It is thus undenied that the credibility and trustworthiness of the victim's version is the decisive factor in adjudging the complicity of the accused.
7. It has been held in the case of Raju and others vs. State of U.P., (2008) 15 SCC 133 that the evidence of the prosecutrix in case of rape is to be construed to be that of an injured witness so much so that no corroboration is necessary. It has, however, been held that the accused must be protected against the possibility of false implication. It has been underlined that the testimony of the victim in such cases though commands great weight but the same cannot necessarily be universally and mechanically accepted to be free in all circumstances from the embellishment and exaggeration. The presumption even contemplated in Section 114A of the Evidence Act is restricted on its application compared to the scope and ambit of the presumption under section 113A and 113B of the Evidence Act. Although the statement of the victim is required to be examined as like an injured witness whose presence at the spot is probable but it can never be presu
