Padu Khilla vs State of Orissa

L. Mohapatra, J.—The Petitioner having been convicted for commission of offences under Sections 448/354 of the Penal Code and sentenced to two months imprisonment for conviction u/s 354 of the Penal Code and to imprisonment for one month for conviction u/s 448 of the Penal Code, preferred an appeal and the appeal having been dismissed the present revision had been filled challenging the orders of both the Courts below.

The case of the prosecution is that on 25.09.1992 at about 10 P.M. in the night the informant-victim Dai Bagh (P.W. 1) was in her residential house. At that time her husband was absent at home. Since someone knocked at the door, thinking her husband has returned home she opened the door. As soon as the door was opened. It is alleged that the Petitioner forcibly entered inside the house, caught hold of her hand tightly, closed the door giving a kick to it and by showing a knife threatened her to stab in case she shouted. It is also alleged that thereafter the Petitioner undressed her and while doing so the saree of the victim was torn. Thereafter the.Petitioner removed his wearing lungi and made the victim lie on the ground and while he was attempting to sleep on her the latter shouted and hearing her hulla the neighbours, namely Bhimana Peimei and Debadas Sonia, came to the spot. Seeing the neighbours the Petitioner left the victim and started running away holding his lungi in his hand. After return of her husband Kartik Bagh, the victim narrated the incident before him whereafter her husband reported the matter to the villagers and a meeting was convened by the village panch. Even though three times punch meetings were called, the same could not be held due to absence of the Petitioner and on the advice of the panch members the information was lodged in Orkel Police station three days after the incident i.e. on 28th September, 1997 at 3 P.M. On the basis of such information, investigation was taken up and charge-sheet was filed for commission of offences under Sections 448/354 of the Penal Code.

The plea of the accused is one of denial and it is the specific case of the Petitioner that since he had lodged an F.I.R. against the informant, her husband along with some others, the present case has been initiated on false allegations.

In order to bring home the charges, prosecution examined as many as 8 witnesses out of whom. P.W. 1 is the victim lady herself, P.W.2 is the neighbour who ran to the spot after hearing the hulla of P.W.1, P.W. 3 is the husband of the informant (P.W. 1), P.Ws. 4 and 5 are the punch members, P.W. 7 is the doctor who examined the victim- and P.W. 8 is the Investigating Officer. On consideration of the evidence of the prosecution witnesses as well as the defence witnesses, the trial Court found the Petitioner guilty for commission of offences under Sections 448/354 of the Penal Code and convicted him thereunder. Challenging the said order of the trial Court, an appeal was preferred and the same having been dismissed, the present revision had been filed.

The Learned Counsel appearing for the Petitioner challenged the finding basically on two grounds:

(i) The Petitioner lodged an F.I.R. against the informant, her husband along with some others prior to the lodging of the F.I.R. in the present case and the numbers of both the G.R. Cases would clearly indicate that the first F.I.R. was lodged by the Petitioner. From the above, it is contended that as counter blast, P.W. 1 lodged an F.I.R. against the Petitioner on false allegations and, therefore, her evidence should be looked into with suspicion.

(ii) There being delay of three days in lodging the F.I.R. and No. explanation having been offered, the prosecution case should be disbelieved.

So far as the first ground of attack is concerned, there is No. doubt that on the basis of an F.I.R. lodged by the Petitioner on 28.9.92 at about 8 P.M.G.R. Case No. 310 of 1992 was registered. It also appears that on the very same day the present F.I.R. was lodged by P.W. 1 and accordingly G.R. Case No. 311 of 1992 was registered.

On scrutiny, it is found that in the present case the offence relates to 25th September, 1992 whereas in G.R. Case No. 310 of 1992 the offence relates to 26.9.1992. From the above it is clear that the offence alleged in the present case was earlier than the G.R. Case No. 310 of 1992. Apart from the said fact, both the G.R. cases do not arise out of same incident and therefore cannot be treated as counter to the other. I, therefore, do not find any force in the contention raised by the Learned Counsel for the Petitioner.

So far as the second contention is concerned, it is argued by the Learned Counsel that though the incident is alleged to have taken place on 25th September. 1992, the F.I.R. was lodged on 28th September, 1992 and the delay in lodging the F.I.R. has not been explained. From the evidence of P.W.1 it appears that the occurrence took place on 25th September, 1992 at about 10 P.M. in the night when her husband was absent. Her husband returned on the next day morning and on his arrival, she narrated the incident to her husband. It is also appears the matter was reported to the village punch on 26th September. 1992 and in spite of three meetings held by the punch, the Petitioner did not turn up and accordingly they were advised to lodge the F.I.R. and the same was lodged on 28th September, 1992. The evidence of P.W. 1 gets corroboration from the evidence of other witnesses including the husband of the victim. In view of such evidence available on record. I am not in a position to accept the contention of the Learned Counsel for the Petitioner that the delay in lodging the F.I.R. has not been explained.

P.W. 1 in her evidence has narrated the entire incident and nothing has been brought out in the cross-examination to disbelieve her. Her evidence also gets support from P.W. 2 who immediately ran to the spot hearing her hulla and found the Petitioner running out from inside the house of P.W. 1. Though three witnesses from the side of the defence have been examined, on comparison of evidence adduced on both the sides, I find that the evidence led from the side of the prosecution is more acceptable and believable. I, therefore, do not find any infirmity in the findings of both the courts below convicting the Petitioner for commission of offences under Sections 448/354 of the Penal Code.

The Learned Counsel appearing for the Petitioner prayed for extending the benefit of P.O. Act to the Petitioner on the ground that he is young and it is his first offence. Considering the nature of offences alleged and the manner in which it is alleged to have been committed, I am of the view that it is not a fit case where benefit of P.O. Act can be extended to the Petitioner. The sentence imposed by the trial Court also does not appear to be disproportionate and therefore, I am not inclined to make any modification in the sentence imposed by the trial Court.

In view of the discussions made above, I do not find any merit in the revision and the same stands dismissed.