Madhu Gadaba vs State of Orissa

R.N. Biswal, J.—The judgment and order dated 13.9.1996 passed by the Sessions Judge, Koraput in Criminal Appeal No. 170 of 1994 confirming the judgment and order of conviction and sentence passed by the Asst. Sessions Judge, Jeypore in S.C. Case No. 29 of 1994 are under challenge in this revision.

The prosecution case, stated in nub is that on 23.11.1993 during morning hour P.W.1, a married lady, was alone in her house. Taking advantage of the situation, the accused Madhu Gadaba went there and forcibly lied her on the ground, lifted her wearing apparels and while attempting to commit rape on her, P.W. 1 inflicted a kick on him and raised hullah hearing which P.W. 2 rushed there, at the sight of whom the accused fled away. When the husband of the victim returned, she narrated the entire incident before him and being annoyed, he searched for the accused, but could not trace him out. On the next day, a meeting was convened in presence of P.Ws. 1, 2 and 5 and some others including the accused where the accused confessed his guilt. So, the Punch members imposed a fine of Rs. 1000/- on him, but on his request, it was reduced to 700/-. On that very day itself, the accused paid 200/- with undertaking that he would pay the rest amount shortly thereafter. But, as he did not make payment, on the instruction of the Punch members, P.W.1 orally reported the incident before the O.I.C. Borigumma Police Station (P.W.6), who reduced the same into writing. As the allegation contained in the report, which was treated as F.I.R., revealed a cognizable case, P.W.6 registered PS. Case No. 119 of 1993 and took up investigation. In course of investigation, he examined the witnesses, visited the spot, seized Rs. 200/- from Kamal Lochan Gadaba, prepared seizure list, in respect thereof as per Ext. 1, arrested the accused, forwarded him to the Court and after completion of investigation submitted charge sheet against the accused under Sections 450 and 376/511 of I.P.C. The case having been" committed to the Court of Session, it was transferred to the Court of Asst. Sessions Judge, Jeypore who framed charge under the aforesaid Sections against the accused and on denial of the charge conducted the trial of the case.

In order to establish its case, prosecution examined 6 witnesses in all, as against none by the defence. After assessment of the evidence on record, relying on the evidence of P.Ws. 1, the trial Court held the accused guilty under Sections 350 and 376/511 of I.P.C. and accordingly convicted and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 1000/- in default of payment of fine to undergo R.I. for two months more on each count and it was directed that the sentences would to run concurrently. The accused challenged the judgment and order of conviction and sentence before the Sessions Judge, Koraput who upheld the judgment and order of sentence passed by the trial Court. Being aggrieved with the said judgment and order of the Sessions Judge, the accused (hereinafter referred to as Petitioner) has preferred the present revision.

Learned Counsel appearing for the Petitioner submits that the trial Court as well as the Appellate Court committed gross error in holding that the Petitioner confessed his guilt. It transpires from the evidence of P.W.3 that P.W.1 disclosed the incident before the Punch narrating the fact as to how the Petitioner attempted to commit rape on her. Being questioned by the Punch members, the Petitioner stated that he had been to the house of P.W.1 to light a Bidi and further stated that "Mu Dosa Karichi". Confession has not been defined in the Indian Evidence Act. It is a species of the genius "admission". In other words, every confession, is admission, but not the Wee verse. Admission, which is inculpatory in nature is confession. The statement made by the Petitioner as noted above is not inculpatory statement, as such it cannot amount to confession. Mr. Swain, learned Addl. Government Advocate submits that even if that part of evidence is not taken into consideration, still then there is sufficient evidence to hold the Petitioner guilty under Sections 450 and 376/511 of I.P.C. As per his submission P.W.1 is admittedly a married lady. As transpires from her evidence, while she was alone in her house and was engaged in cooking, taking advantage of the situation the Petitioner went inside that house, made her lie forcibly on the ground, lifted her clothes and while going to penetrate is private part on the private part of P.W.1, the latter inflicted a kick blow and raised hullan, hearing which P.W.2 rushed to the spot, at whose sight the Petitioner took to his heels. No doubt, P.W.2 turned hostile to the prosecution and expressed her ignorance regarding the incident, but there is no reason why P.W.1, a married lady would falsely depose that the Petitioner attempted to commit rape on her inviting social stigma. So, according to Mr. Swain, learned Addl. Government Advocate, the trial Court rightly convicted the Petitioner and the Appellate Court committed no error in upholding the same. Accordingly, he strenuously urged to dismiss the revision. Per contra, learned Counsel appearing for the Petitioner submits that save and except P.W.1, nobody has seen the alleged occurrence. The evidence of P.W.1 suffers from major contradictions and inconsistency. So, the trial Court committed gross error in convicting the Petitioner. The Appellate Court equally erred in upholding the judgment and order of conviction as passed by the trial Court.

On perusal of evidence of P.W.1, it is found that on the alleged date and time of occurrence, when she was cooking food in her house, the Petitioner arrived there, forcibly made her lie on the ground, pulled out her wearing apparels and attempted to insert his private part on her private part. During this time, she inflicted a kick blow to the Petitioner and abused him. In the meantime P.W.2 arrived at the scene of occurrence, for which the Petitioner fled away. P.W.1 further deposed that a meeting was held in connection with that incident, where, on being asked, the Petitioner confessed his guilt by saying "Mu Dosa Kali". During cross-examination, nothing could be elicited to impeach her credibility. So, the allegation of attempt to rape was consistent. She corroborated the F.I.R. in material particulars. In fact, there is no major contradiction in the evidence of P.W.1. There is also no in consistency in her evidence. No doubt, P.W.1 is the only witness to the occurrence, but it is the established principle of law that conviction can lie on the basis of evidence of a solitary witness, provided the same is reliable, clinching and unimpeachable in character. The evidence of P.W.1 stands all these tests. As stated earlier, the Petitioner did not confess to have attempted to commit rape on P.W. 1. But he stated that he had gone to the house of P.W.1 on the alleged date and time of occurrence, albeit to light a Bidi, which corroborates a part of the evidence of P.W. 1.

Furthermore, the scope of revision is very limited. If the findings of the lower Court are absurd, grossly illegal and perverse leading to miscarriage of justice, then only such findings can be interfered with. In the instant case, the findings of the trial Court, as well as the Appellate Court do not suffer from any of these short comings. So, I am not inclined to reverse the judgment of the Appellate Court, upholding the judgment and order of conviction and sentence passed by the trial Court.

Learned Counsel appearing for the Petitioner submits that the occurrence took place on 23.11.1993. The Petitioner faced the ordeal of trial till 8.11.1994, i.e., almost one year. The revision is pending before this Court since last 12 years. The Petitioner was in judicial custody in connection with this case for 8 months and 14 days. So, he submits to sentence the Petitioner to undergo imprisonment for the period he was detained inside jail. The submission of learned Counsel for the Petitioner is, just and proper.

Under such circumstance, the revision stands dismissed and the judgment and order of conviction passed by the trial Court and confirmed by the Appellate Court are hereby upheld. So far the sentence is concerned, it is modified to the extent that the Petitioner is sentenced to undergo R.I. for 8 months and 14 days and the period for which he was in jail custody in connection with this case shall be set of.