Bata Krushna Sahoo vs State of Orissa

B.K. Patel, J.—This revision is directed against judgment dated 2.5.2002 passed by Additional Sessions Judge, Fast Track Court II, Cuttack in Criminal Appeal No. 22 of 2000 confirming the judgment dated 26.4.2000 passed by Additional C.J.M.(Spl.)-Cum- Asst. Sessions Judge, Cuttack in S.T. Case No. 276/48 of 1998 by which the Petitioner was convicted under Sections 450 and 376 of the Indian Penal Code (for short ''I.P.C.'') and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for six months, u/s 450 of the I.P.C, and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for six months, u/s 376 of the I.P.C.

Petitioner and victim-informant P.W.5 are co-villagers. During the period of occurrence P.W.5''s husband was employed and residing at Surat. Petitioner was a student of +2 Second Year Arts. Prosecution case is that the occurrence took place in the night on 4.10.1996 in the house of P.W.5 when she was sleeping in a room. Her father-in-law P.W.3 was sleeping in another room whereas P.W.5''s mother-in-law was sleeping in the verandah. The house which had half constructed walls having no doors and windows was open from all sides. Petitioner trespassed into P.W. 5''s room, gagged her mouth by means of a napkin, threatened her not to shout, raised her saree and forcibly raped her. P.W.5 could, however, manage to scream. Her parents-in-law rushed to the place of occurrence. Seeing them, Petitioner started running away. P.W.5 caught hold of Petitioner''s banyan as a result of which a portion of the banyan was torn and remained with P.W.5. P.W.3 and P.W.5''s mother-in-law also tried to catch hold of the Petitioner. However, he could manage to escape from their clutches. In the process P.W.5''s parents-in-law sustained injuries. P.W.3 as well as P.W.6, who happens to be P.W.5''s husband''s elder brother, chased the Petitioner who ran away and entered inside his house. P.W.3 informed the villagers including P.W.2, who also happens to be brother of P.W.5''s husband, regarding the occurrence. Despite reports submitted at Japakuda Out Post and Salipur Police Station no action was taken by police. In such circumstances, Director General of Police was apprised regarding the occurrence. As directed, P.W.8, the Circle Inspector of Police, Salipur visited the spot and received First Information Report Ext.1 from P.W.5. In course of investigation, witnesses were examined and P.W.5 was medically examined on police requisition by P.W.4. Seizures were affected. Subsequently, P.W.8''s successor-in-office P.W.7 took charge of investigation and submitted charge-sheet against the Petitioner. Petitioner took the plea of false implication. In order to substantiate the allegations, prosecution examined eight witnesses of whom P. Ws.2 to 8 have already been introduced. P.W.1, a resident of occurrence village, did not support the case of the prosecution. Prosecution also relied upon documents marked Exts.1 to 9. Petitioner examined D.W.1 and relied upon document marked Ext. A. On appraisal of evidence on record, learned trial court convicted and sentenced the Petitioner as stated supra.

In assailing the impugned judgments, it was contended by the learned Counsel for the Petitioner that both the courts bellow have utterly failed to appreciate the evidence on record. It was argued that there was inordinate delay in lodging the First Information Report and the explanation offered by prosecution is not acceptable. Prosecution witnesses developed the prosecution story at different stages. Though it was asserted that a torn piece of Petitioner''s banyan was retained with P.W.5, the same was not produced in course of trial. Medical report does not support the allegation of rape. It was further argued that prosecution case militates against probability factors inasmuch as the allegation that the Petitioner committed rape on P.W.5 when she was sleeping in her house being surrounded by other inmates is incredible.

In reply, it was submitted by the learned Counsel for the State that on a threadbare analysis on the evidence on record both the courts below have come to the concurrent finding that the Petitioner committed rape on P.W.5. There is absolutely no scope for re-appreciation of evidence while exercising revisional jurisdiction.

Scope and ambit of a revision and an appeal are different. The revisional court is not a court of appeal. Placing reliance upon Thakur Das (Dead) by Lrs. Vs. State of Madhya Pradesh and Another, and Duli Chand Vs. Delhi Administration, , it has been pointed out by this Court in Rabindra Sethi v. Premalata Sethi 1989 (II) OLR 548 that the established principle of law is that the revisional jurisdiction is not to be ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record. If the revisional court on appreciation of the evidence on record and re-appraisal of the evidence, takes a view different from and contrary to the view taken by the lower court, then also it cannot be a ground for interfering in revision. In Smt. Rachita Rout Vs. Basanta Kumar Rout, , it has been pointed out by this Court that it is only when the trial court has not kept in view the correct position of law and has failed to appreciate the evidence in its true perspective, it would be within the jurisdiction of the revisional court to appraise the evidence and come to a conclusion as to whether the conclusion of the trial court was justified or not. Where the conclusion of a court is grossly and palpably unjust or is based upon a manifestly erroneous approach and erroneous appraisal of the evidence, and further the court has misconceived the evidence and has come to an obviously wrong conclusion the revisional court would be fully justified to go into the facts and correct the error that has cropped into the judgment of the trial court. In such a case, the revisional Court is not interfering on the ground of inadequacy of evidence, but on the ground that there has been a clear case of miscarriage of justice.

On a close scrutiny of the impugned judgments and evidence on record, keeping in view the limited scope for interference while exercising the revisional jurisdiction, it is observed that from the very beginning there has been cogent explanation for delay in lodging the First Information Report. Occurrence took place in the night of 4.10.1996. It is in the evidence of P.W.5 as well as P. Ws.2,3 and 6 that report was lodged not only on 5.10.1996 at Japakuda Out Post but also on 9.10.1996 at Salipur Police Station. As there was no response to such reports, grievance was made in the office of Director General of Police at Cuttack on 14.10.1996. In the First Information Report Ext.1 itself it has been alleged that no action was taken in spite of reports lodged at Japakuda Out Post and Salipur Police Station on 5.10.1996 and 9.10.1996 respectively. First Information Report Ext.1 was received and investigation was taken up only when P.W.8 the C.I. of Police, Salipur was directed over telephone from the office of the Director General of Police, Cuttack to visit the spot and take legal action. Evidence of P.W.8 corroborates the assertions. Therefore, there appears no infirmity in the finding recorded by both the learned courts below to the effect that reason for delay in lodging First Information Report has been cogently explained.

Evidence of P.W.5 regarding Petitioner''s trespassing into her room in the mid-night also stands corroborated by the evidence of P. Ws.2,3 and 6. There is no infirmity in the finding that hearing alarm raised by P.W.5, P.W.3, P.W.6 and P.W.5''s mother-in-law rushed towards the spot and found the Petitioner running away. They made an attempt to obstruct the Petitioner in vain. However, as regards the allegation of commission of rape by the Petitioner on P.W.5, there appears no corroboration to P.W.5''s evidence. P.W.5 alleges that Petitioner gagged her mouth by a napkin with one hand, raised her wearing saree with the other hand and forcibly raped her. However, she affirms that she could manage to raise shout when the Petitioner''s hand slipped off from her mouth. P.W.4, who was an Associate Professor of the Department of F.M.T., S.C.B. Medical College and Hospital, Cuttack deposes to have found no medical evidence to suggest recent sexual intercourse on P.W.5 when she was examined on 15.10.1996. Chemical examination of P.W.5''s wearing apparels also did not indicate the presence of semen and any other incriminating substance. P.W.5''s father-in-law P.W.3 deposes in court that when he rushed to the spot he found the Petitioner lying over P.W.5 who was catching hold of Petitioner''s banyan. However, police statement of P.W.3 marked Ext.A reveals that P.W.3 had not stated before the Investigating Officer to have seen the Petitioner lying over P.W.5. Both the learned courts below have failed to take note of such material omission on the part of P.W.3 to disclose regarding a vital allegation in his police statement. Obviously, P.W.3 has made an attempt to improve upon his earlier statement made before the Investigating Police Officer. Considering the totality of circumstances in the case, allegation with regard to Petitioner entering into the P.W.5''s room and making an attempt for sexual assault when she was sleeping cannot be disbelieved. However, evidently P.W.5 was in a position to raise, and in fact raised, alarm. Therefore, the circumstance of Petitioner committing rape on P.W.5 by gagging her mouth with one hand and lifting her saree with another when her parents-in-law also were sleeping in the house appears to be improbable. In fact, P.W.5 deposes in her cross-examination that the Petitioner caught hold of her saree for half an hour. She also admits in her cross-examination that the napkin with which the Petitioner had gagged her mouth lying on the spot was not seized by police. Failure on the part of both the learned courts below to take note of such improbabilities has occasioned in miscarriage of justice. On the face of such improbabilities it would not be prudent to hold that the Petitioner committed rape on P.W.5. On the contrary, circumstances conclusively prove that the Petitioner made an attempt to commit rape after gaining illegal entry into the room in which P.W.5 was sleeping. He is liable to be convicted u/s 450 and Section 376 read with Section 511 of the I.P.C.

Accordingly, Petitioner''s conviction and sentence u/s 450 of the I.P.C. are confirmed. Conviction of Petitioner u/s 376 of the I.P.C. and sentences awarded thereunder are set aside. Instead he is convicted u/s 376 read with Section 511 of the I.P.C. Considering the status of the Petitioner and the fact that Petitioner was in custody as an under trial prisoner from 2.3.1998 to 12.8.1999, he is sentenced u/s 376 read with Section 511 of the I.P.C. to undergo the period already undergone as an under trial prisoner.

With the aforesaid modification, the revision is allowed in part.