Khaga @ Khageswar Behera vs State Of Orissa

Dr. A. K. Mishra, J

This revision is filed to assail the concurrent verdict in convicting the petitioner â€" accused U/s.376 of the Indian Penal Code (hereinafter referred

as the ‘I.P.C.’) and sentencing to undergo seven years of rigorous imprisonment and to pay a fine of Rs.1000, in default to further undergo

rigorous imprisonment for six months with a direction to pay Rs.800/- to the victim as compensation if the fine amount is realized. The aforesaid

conviction and sentence passed by the learned Assistant Sessions Judge dtd.25.11.1997 in S.T. Case No.3-A of 1997 has been confirmed by the

learned Additional Sessions Judge, Angul in Criminal Appeal No.1 of 1998 vide judgment dtd.20.3.2001

The prosecution case in brief is that on 11.11.1994 at about 12 midnight in village Puleswar while victim (P.W.2) was sleeping in her hut and her

husband (P.W.4) had gone to Athamalik Bazar to witness ‘Parayan’, accused scaled over the damaged wall, entered inside, lifted her to

‘Bari’ (backside of the house) and committed sexual intercourse against her will giving threatening. Informant knew that accused was

imprisoned for having murdered a woman for which she did not scream out of fear. The husband of victim returned. Informant disclosed the incident.

Both of them went to the house of neighbor, P.Ws.3 and 5, thereafter went to police station. Informant orally reported the matter which was reduced

into writing and F.I.R. (Ext.3) was registered at 1 A.M., i.e. after one hour of the incident, i.e. on 12.11.1994. The medical examination of victim was

made by Doctor (P.W.6) who submitted report (Ext.2). On 14.11.1994 the statement of the victim (Ext.5) U/s.164 Cr.P.C. was recorded. The

accused absconded and was arrested on 26.9.1996. After completion of investigation, charge-sheet was submitted showing the accused absconder.

Case was committed to the court of Sessions.

In support of their case, prosecution examined 8 witnesses while defence examined one.

In the trial, defence took the plea of denial and false implication due to enmity.

Basing upon the evidence of informant (P.W.2), getting corroboration from medical examination report of doctor (P.W.6) and post occurrence

witnesses P.Ws.3, 4 and 5, learned trial court convicted the accused and sentenced in the above manner.

5-(a).   Learned trial judge, on analysis of evidence, found that the plea of defence regarding prior enmity was not correct, the evidence of

victim was reliable and got corroboration from her husband and independent witnesses, her neighbor. The medical evidence through P.W.6 did not run

contrary as the victim was a married lady. The lodging of F.I.R. soon after occurrence and recording of statement U/s.164 Cr.P.C. strengthened

prosecution case. Learned trial judge also analyzed law in threadbare to record conviction.

5-(b). Accused preferred appeal. The Appellate Court reiterating the findings of learned trial court and relying upon Section 114-A of the Evidence

Act, dismissed the appeal.

In this revision the appellant who was directed to deposit the fine amount, has failed to do so.

Learned counsel for the petitioner vehemently urged that

(i) the evidence of victim is not reliable as she had neither raised protest nor shouted to attract the attention of neighbor for which she should be considered as an

accomplice or consenting party.

(ii) the medical evidence regarding absence of recent sign and symptom of sexual intercourse is sufficient to nullify the story of prosecution and both the Courts,

having not appreciated the evidence in proper perspective, the conviction of accused should be set aside.

He further contended that the conviction of petitioner is not supported by any legal sufficient evidence and is against the manifest weight of the

evidence.

Learned Additional Government Advocate Mr. K. N. Das supported the conviction and sentence of the petitioner on the grounds stated therein.

Added to that it is submitted on behalf of State that initially petitioner had absconded to delay the trial and subsequently flouted the order of this court

to deposit the fine amount, and such conduct is repugnant to exercise the exceptional jurisdiction of revision by this court.

In the light of above submissions, the record is meticulously perused.

The revisional jurisdiction of this court U/s.397 and 401 of Cr.P.C. is limited and that is clearly stated in the decision reported in AIR 2018 SC 3173,

Kishan Rao Vrs. Sankar Gouda wherein their Lordships of Hon’ble Apex Court have held as follows:-

“11. This Court has time and again examined the scope of Section 397/401 Cr.P.C. and the ground for exercising the revisional jurisdiction by the High Court.

In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, 1999 (2) SCC 452, while considering the scope of the revisional jurisdiction of the High Court

this Court has laid down the following:

“5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the

correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court

for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second

appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the

same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the

notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the

aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the

respondent by reappreciating the oral evidence.....â€​

Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray

Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the

Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground

that another view is possible.â€​

9-(a). The evidence of victim has implicated the accused. Her evidence is cogent, clear and trustworthy. As she was a married lady having child, her

medical examination report post incident was not disclosing any external sign or injury. That does not mean that the report is contrary to ocular

testimony of the victim. When there is no variation between the ocular testimony of the victim and medical evidence, it is safe to act upon the same.

Even in this nature of accusation, the absence of medical examination is always not fatal.

Law in this regard has been stated in the decision reported in 2013 (II) SCC 688 Radhakrishna Nagesh vrs. State of Andhra Pradesh wherein at

paragraphs 15 and 19 their Lordships of Hon’ble Apex Court have held as follows:-

“15. It is a settled principle of law that a conflict or contradiction between the ocular and the medical evidence has to be direct and material and only then the

same can be pleaded. Even where it is so, the Court has to examine as to which of the two is more reliable, corroborated by other prosecution evidence and gives

the most balanced happening of events as per the case of the prosecution.

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In any case, to establish a conflict between the medical and the ocular evidence, the law is no more res integra and stands squarely answered by the recent

judgment of this Court in the case of Dayal Singh and Others v State of Uttaranchal [(2012) 7 SCALE 165] “29. This brings us to an ancillary issue as to how

the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it

is not that every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a

serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to

the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by

the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In

Kamaljit Singh v. State of Punjab [2004 Cri.LJ 28], the Court, while dealing with discrepancies between ocular and medical evidence, held, “It is trite law

that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as

to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be

thrown out.â€​

Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The

expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the

technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving

due regard to the expert’s opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. {Plz. See

Madan Gopal Kakad v. Naval Dubey & Anr. [(1992) 2 SCR 921 : (1992) 3 SCC 204]}.â€​

In the case at hand, the occurrence was immediately disclosed before the neighbor and within one hour, the F.I.R. was lodged although the date

changed in the meantime, i.e. from 11.11.1994 midnight to 1 A.M. of 12.11.1994. The medical examination of the victim was conducted on

12.11.1994. The 164 Cr.P.C. statement of victim was recorded on 16.11.1994.

The testimony of victim gets corroboration from the testimony of post occurrence witnesses, her husband and neighbor.

Both the courts below had appreciated the evidence keeping the ordinary human conduct in view and this court does not find any manifest error

therein.

The contention of learned counsel for the petitioner that F.I.R. was lodged after 24 hours is not correct as per record, so also there is no

inconsistency in the ocular testimony and the medical evidence. The revisional court is not to assess whether the evidence is to be believed, but

whether if believed the evidence against the accused would support a conviction. There being plenty of evidence against the accused and his plea

being found not probable, this court is not inclined to re-appreciate the evidence on record. No interference of this court in exercise of revisional

jurisdiction is warranted.

In the result, the revision fails and stands dismissed.

Sent back the L.C.R.

The trial court is directed to take steps for execution of the sentence.

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