State Of Orissa vs Jagat Bhotra

V. Narasingh, J.

Heard Mr. Maharaj, learned ASC for the Appellant and Mr. Mishra, learned counsel for the Respondent.

This Appeal at the instance of the State is filed under Section 378(1)(b) of the Cr.P.C. assailing the judgment dated 06.09.1996 passed by the learned Assistant Sessions Judge- cum-Chief Judicial Magistrate, Nabarangpur in Sessions Case No.11 of 1996 acquitting the Opposite Party of the charges under Section 376 of IPC.

The principles governing the exercise of power in an appeal against acquittal is worth reiterating before adverting to the factual matrix of the case at hand. In Mrinal Das & Others vs. the State of Tripura, 2011 (9) SCC 479 reported in the apex Court have extensively dealt with the scope of an Appellate Court to interfere with an Appeal against acquittal and referred to the following judgments.

i. State of Goa vs. Sanjay Thakran & Anr. (2007) 3 SCC 755

ii. Chandrappa and Others vs. State of Karnataka (2007) 4 SCC 415

iii. State of Uttar Pradesh vs. Jagram and Others, (2009) 17 SCC 405

iv. Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1

v. Babu vs. State of Kerala, (2010) 9 SCC 189

vi. Ganpat vs. State of Haryana and others, (2010) 12 SCC 59

vii. Sunil Kumar Sambhudayal Gupta (Dr.) and Others vs. State of Maharashtra, (2010) 13 SCC 657

viii. State of Uttar Pradesh vs. Naresh and Others, (2011) 4 SCC 324

ix. State of Madhya Pradesh vs. Ramesh and another, (2011) 4 SCC 786

The guiding principles in an Appeal against acquittal and the power of the Appellate Court to “re-appreciate, review or reconsider evidence and interfere with an order of acquittal was restated while quoting paragraph-42 of the judgment of the Apex Court in the case of Chandrappa and Others vs. State of Karnataka (Supra).

“42.....The  following  general  principles  regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Thus on the touchstone of the law laid down by the Apex Court, the contention of the State has to be examined as to whether the case at hand merits interference, with the impugned judgment of acquittal.

The Respondent was charged under Section 376 of IPC and it is the case of the prosecution that on 07.10.1995, the complainant (P.W.2) lodged the FIR alleging that the Opposite Party-accused on 11.09.1995, in the night at about 10:00P.M, when the victim, his wife (P.W.1) was outside her house to relieve herself, ravished her and hearing the shout of the victim, P.W.2 came out and it was stated in the FIR that the victim escaped from the clutches of the accused with much difficulty and seeing the presence of the complainant, the accused decamped.

The further case of the prosecution that the matter was immediately reported to the member of the village Panchayat-P.W.6 and there was a meeting and ultimately the FIR was lodged on 07.10.1995, after a lapse of about 26 days.

The case of the defence was one of complete denial and false implication due to land dispute.

9 witnesses were examined on behalf of the prosecution, P.W.1 is the victim lady and P.W.2 is the complainant-husband of the victim, P.W.3 is the sister of the mother of P.W.1, P.W.4 is the father-in-law of the victim, P.W.5 is the mother-in-law of the victim, P.W.6 is the village member, P.W.7 is a seizure witness relating to the seizure of the saree of the victim under Ext.1, P.W.8 is the medical officer and P.W.9 is the Investigating Officer.

While recording the Judgment of acquittal the learned Court on an analysis of the evidence of P.W.1-victim, noted the patent contradiction in her statement in paragraph-9 of the impugned judgment and also referred to the supervening circumstances allegedly falsifying the allegation, in paragraph-13 of the impugned judgment.

The learned trial Court has also noted that the delay in lodging of the FIR has not been explained and the theory that there was a Panchayat where the accused-Respondent agreed to pay compensation and later on resiled, which resulted in delay in lodging the FIR is an afterthought.

This Court has also noted that the Investigating Officer-P.W.9 in his cross-examination has clearly denied that there was a Panchayat meeting at the instance of P.W.2 and in fact he goes on to state that “my investigation reveals that there was an illicit relationship between the victim lady and the accused person prior to the occurrence” though denies the suggestion that the investigation was perfunctory. Paragraph-3 of the cross-examination of the I.O.-P.W.9 is extracted hereunder;

“I have not examined the scribe of the F.I.R. P.W.2 did not state before me that the village member Sansai Bhotra prevented him from lodging F.I.R and that there was any panchayat meeting convened at the instance of P.W.2 and that the accused agreed to pay any compensation for the occurrence before any panchayat meeting. My investigation reveals that there was illicit relationship between the victim lady and the accused person prior to the occurrence….xxx”.

The finding of the Investigating Officer-P.W.9 regarding the relationship has to be considered in the light of the circumstances which weighed with the learned trial Court while disbelieving the version of P.W.2 as noted in paragraph-13 of the impugned judgment which is extracted hereunder.

“……………The long absence of the victim (P.W.1) from the house is also suggestive of her willingness to go out side for the purpose of joining with the accused. Hence it is evident that she had the consent for the alleged occurrence.”

It is also relevant to extract the paragraph-9 of the impugned judgment of the learned trial Court in which the contradictions in the FIR lodged by P.W.2, his statement and that of the victim-P.W.1, his wife has been noted.

“9.Besides the above the victim (P.W.1) states in her evidence that when she was sitting for latrine outside her house under a Tamarind tree and after having cleaning herself, the accused arrived there and made her flat on the ground and started making sexual intercourse with her under the said Tamarind tree forcibly. It is also stated by the victim lady (P.W.1) that when the accused was cohabitating with her forcibly, at that time her husband (P.W.2) came out of the house and saw her in sexual compromise position with the accused. The above circumstance does not tally with the evidence of the complainant as well as to the F.I.R. story with regard to the alleged occurrence.”

Learned counsel for the State, Mr. Maharaj submitted with vehemence that the victim has supported the prosecution in material particulars and the alleged contradiction ought not to have weighed with the Court as such the judgment being perverse on the face of it is liable to be set aside.

It is the contention of the learned counsel for the State that the findings of the learned trial Court are based on surmises and conjectures and militate against the weight of materials on record and states that in the case at hand, the materials on record unerringly point to the guilt of the accused-Respondent and the only conclusion that is possible on the basis of evidence on record, is that the Respondent is guilty of committing the alleged offence. Hence, the judgment of acquittal is unsustainable.

Learned counsel for the Respondent, Mr. B.K. Mishra supported the judgment of acquittal and stated that keeping in view the law governing the field relating to interference with a judgment of acquittal and there being no “compelling and substantial reasons” for reversing the, the Appeal is liable to be dismissed and in this context he relies on the law laid down by the Apex Court in the case of Chandrappa and Others vs. State of Karnataka (Supra) and State of Orissa vs. Balaram Pradhan and Ors. 2019 (II) ILR-CUT322.

As noted in the preceding paragraphs, taking note of the conduct of the victim (P.W.1) and the attending circumstances as borne out from the evidence of the complainant (P.W.2), her husband and the I.O.-P.W.9, learned trial Court on a cogent analysis of the materials on record passed the judgment of acquittal.

On close scrutiny of evidence on record, this Court is not persuaded to take a view different from that of the learned trial Court, keeping in view the contours for the exercise of jurisdiction while dealing with an Appeal against acquittal, as noted. Hence, the Appeal being devoid of merit is dismissed.

The bail bond of Respondent stands cancelled and sureties are discharged.

Accordingly, the GA stands disposed of.

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