State of Orissa vs Surendra Kumar Routray

P.K. Tripathy, J.—Heard further argument from both the parties and the judgment is as follows.

State has preferred this appeal after obtaining leave as against the order of acquittal granted by Learned Asst. Sessions Judge, Puri in S.T. No. 1/16 of 1988. The accused-respondent was prosecuted in that Sessions Trial for the offence u/s 376, Indian Penal Code on the allegation that at about 11 p.m. on 19.1.1987 he trespassed into the house of the complainant (P.W. 4) and ravished her (sic.) minor daughter (P.W. 5) when the inmates were in slumber. According to the narration of events in the FIR and the prosecution case, the victim girl was sleeping inside the living room. There was no provision for bolting the door from inside and therefore, a stone-piston (Silapua) was rested against the door to keep it closed. On the adjoining front room (covered verandah) P.W. 4 was sleeping and in the adjoining kitchen room the mother of the victim was sleeping. A country-made lamp (Dibiri) was lighting the occurrence room. The accused, a co-villager of the prosecutrix clandenstinely entered into that room and when slept over P.W. 5, she shouted, but her mouth was gagged and accused committed rape on her. The sound produced thereof made P.W. 4 to wake up and from the half-opened door of the living room and the light available from the country-made lamp he could see the misdeed of the accused, i.e., intercourse being committed by him with P.W. 5. He therefore bolted the door from outside, called the co-vollagers along with the father of the accused. They found P.W. 5 and the accused being inside the room. Father of the accused pleaded for mercy and to let off the accused. Persons assembled there together with P.W. 4 did not concede to that request and thereafter P.W. 4 went to the nearby Police Out-post but found the A.S.I. of Police in-charge of that Out-post was not present. The Police Constable present there deputed two Home-Guards. On the following day morning P.W. 4 presented a written FIR before the ASI of police, but the latter refused to accept the same and took away the accused along with P. Ws. 4 and 5 to the Police Out-post and there he allowed the accused to go away and detained P. Ws. 4 and 5 and the other villagers on the ground that father of the accused had lodged FIR against them. On 21.1.1987 they came to Brahmagir Police Station being sent by the A.S.I. of police. There P.W. 4 lodged FIR (Ext. 7) narrating the incident of rape and also mentioned about the conduct of the A.S.I. The Investigating Officer, at first, entrusted the investigation to the A.S.I. of police and later on he himself took up further investigation and after a stereo-typed investigation, submitted charge-sheet against the accused for the offence u/s 376, Indian Penal Code. In course of investigation, as it reveals from the Case Diary, the Investigating Officer, i.e., O.I.C., Brahmagiri Police Station did not verify about the allegations made against the A.S.I. and the cause of delay in lodging the FIR. After commitment of the accused to the Court of Sessions, he faced the trial after denying to the charge. In course of the trial, prosecution examined only six out of ten charge-sheeted witnesses. Out of them P. Ws. 1 and 2 are the two Doctors, P.W. 4 is the informant and father of the victim girl (P.W. 5) and P.W. 6 is the Investigating Officer. P.W. 3 is a witness to the seizure. The Material Objects are ''saya'' and sari of P.W. 5 and ''lungi'' of the accused respectively marked as M. Os. I, II and III. In the Trial Court P. Ws. 4 and 5 consistently made their statement alleging the act of rape against the accused, but the Trial Court acquitted the accused on the ground that no independent witness was examined from those who had gathered at the spot in the occurrence night and saw the accused in the room of P.W. 5, that prosecution could not prove through evidence of P.W. 4 that P.W. 5 was aged about 14 years by the date of occurrence and more so when the ossification test indicates her age to be around 16 to 17 years, that the A.S.I. of police was not examined nor the reason for delay in lodging the FIR could be explained. Besides that, the Trial Court held that narration of events may give rise to a presumption of consented cohabitation between the accused and P.W. 5. However, he did not put much emphasis on that presumption and granted benefit of doubt and acquitted the accused on the basis of the aforesaid lacunae in the prosecution case.

It appears from the Trial Court record that three villagers who had assembled in the house of the informant in the night of occurrence and seen the accused detained in the occurrence room were notice, but the A.P.P. declined to examine them. Similarly, the A.S.I. of Police was also noticed to depose as a witness and when he appeared in the Trial Court, he was declined to be examined. As noted above, evidence of P. Ws. 4 and 5 was disbelieved mainly because of the said three villagers were not examined. It therefore appears that it is not a case of non-production of corroborative evidence but withholding such evidence due to the unexplained conduct of Learned A.P.P.

A case of rape punishable u/s 376, Indian Penal Code is a serious offence. It stigmatizes the victim and consequently her family members together with her suffer the agony. Thus, undeserving acquittal on flimsy grounds adds salt to the injury. According to the mandate of law in Section 225, Code of Criminal Procedure. read with Section 301(2), Code of Criminal Procedure., when conducting of the prosecution is not permissible by a private counsel and such trial is to be conducted only by a Public Prosecutor, therefore, the aforesaid act of the concerned A.P.P. in the absence of any circumstance available on record, goes to show that he was not justified in declining those witnesses even if he had discretion to withhold any evidence from being tendered in course of trial. That conduct of the A.P.P. should be bona fide while withholding such evidence from being tendered in the Court. Be that as it may, Section 311, Code of Criminal Procedure. authorizes the Trial Court to examine witnesses and admit evidence, if it appears to him to be essential for a just decision of the case. In that context, the Trial Court is to be dispassionate while construing the meaning of "just decision" and to find out if the evidence on record are sufficient to decide the dispute. In the case at hand, when the evidence of P.W. 4 is to the effect that the A.S.I. of police declined to accept the FIR and that fact is noted in the FIR, Ext. 7 lodged before the O.I.C., it would have been incumbent on the part of the prosecution to trace out that circumstance and get the correct fact before the Court in the shape of evidence both by examining the said A.S.I. of Police and also asking relevant questions to the Investigation Officer (P.W. 6). Because of the aforesaid lacuna, the impugned judgment of acquittal is bad in law.

A trial is not a game of tricks between the prosecution and the accused. It is a method to ascertain if a crime has been committed and if so, who the offender is and whether he is liable to be punished or not. Virtually the Trial Court has departed from that theory and, as stated earlier, by conducting the case in a mechanical manner, he has caused failure of ends of justice. A ravished girl, a shocked father and the concerned villagers get the message that an A.S.I. of police can protect a criminal of rape and the Investigating Officer can cover up that act by ignoring to properly investigate and the Trial Court can remain complacent to that by not probing into the matter. Such method followed is unfortunate and should not be permitted to be perpetuated by endorsing approval to the order of acquittal only because a period of twenty years have elapsed in the meantime. For the reasons indicated above, I do not further discuss the evidence on record in as much as I think it proper that the matter should be remanded to the Trial Court with a direction to undertake the trial afresh by bringing relevant evidence on record and providing opportunity to the accused to meet the same and, therefore, any further observation may prejudice the prosecution or the accused, as the case may be.

For the reasons indicated above, while setting aside the order of acquittal, the case is remanded to the Trial Court, i.e., Court of Asst. Sessions Judge with a direction to peruse the materials on record and to examine the relevant witnesses whom the prosecution has declined, if their evidence is found helpful and necessary to decide the case in a lawful and equitable manner, and to dispose of the case expeditiously. Trial Court shall bear in mind that this Court has not expressed anything on merit of the ultimate conclusion in the case and therefore, he is to decide the same strictly in accordance with law.

The Government Appeal is allowed accordingly. In view of the above order, the accused is to make himself available to the Trial Court. Since he has enjoyed liberty for a period of twenty years, I direct that he may be allowed to remain on bail with appropriate terms and conditions provided he appears before the Trial Court by 4th September, 2006. In the event of default of the accused to appear by that date, it will be appropriate for the Trial Court to issue non-bailable warrant of arrest against him and in that event the accused may be put behind the bar until further trial is completed.

Govt. Appeal allowed.