Orissa High Court
State Of Orissa vs Dhirendra Kumar Naik And Two Ors. And ... on 28 January, 1986
Equivalent citations: 1986(I)OLR240
JUDGMENT B.K. Behera, J.
1. The respondents in the two appeals, which have been heard together and will be governed by this common judgment, stood their trial with two co-accused persons in the Court of Session. The respondents stood charged under Section 376 of the Indian Penal Code ( for short, 'the Code') for having committed rape on Ahalya Dei (P. W. 1.) during the night of the 6th/7th September, 1978 at Sisua. The co-accused Jagannath Santra who stood charged under Section 354 of the Code and the co-accused Khirod Chandra Das who stood charged under Sections 201 and 354 of the Code were acquitted. On a consideration of the evidence of the victim (P. W. 1) and the other evidence on record, the trial Court held that the charge against the respondents had been established. They were accordingly convicted under Section 376 of the Code and each of them was sentenced to undergo rigorous imprisonment for a period of four years. After the success of the respondents in the Court of the learned appellate judge who set aside the order of conviction and sentences passed against them, the State is in appeal. I have heard the learned Standing Counsel for the State and Mr. 8. Panda for the respondents.
2. In an appeal against acquittal, if two views are reasonably possible, the one taken by the acquitting Court is not to be interfered with. The question for consideration is as to whether the findings recorded by the learned appellate Judge could not have been recorded on the evidence on record. The mere fact that another which would be a better view could be taken on the evidence on record is no ground for interference in an appeal against acquittal.
3. The facts of the prosecution case, the plea of the defence and the evidence adduced by both the sides have been set out in the judgment of the appellate Court and need not be re-stated. If the evidence of the victim in a case of rape does not suffer from any basic infirmities and the probabilities factor does not militate against the case presented at the trial, there is no reason to insist on corroboration of the victim's evidence as a general rule, except from the medical evidence, where having regard to the circumstances of the case, medical evidence may be forthcoming corroboration may, however, be insisted upon when a victim having attained majority is found in a compromising position and there is likelihood of her having levelled an accusation of rape on account of the instinct of self-preservation or when the probabilities factor is found to be out of tune. See AIR 1983 S. C. 753 (Bharwada Bhaginbhai Hirjibhai v. State of Gujarat).
4. In the instant case, on her own showing, P. W. 1 had been going away, from her house on some occasions leaving her husband without even informing him. As has been submitted at the Bar, the inconsistent statements made by P. W. 1 with regard to the charge of rape in the first information report lodged by her which, as admitted by her, had been done under the direction of P. W. 5 who was on inimical terms with the respondents who had supported his rival in the election to the office of the Sarpanch of the locality, the statement made by her in the course of investigation and her evidence would bring about her condemnation and would indicate, as observed by the learned appellate Judge, that if there had been sexual intercourse by the four respondents, as alleged by P. W 1, it had been done with her tacit consent. Although two of the respondents hard allegedly committed rape in a cabin where she had been left by the co-accused Jagannath and the other two had committed rape, as alleged, in the village school after having taken her on the false pretext that she would be left in the house of her relation which was at variance with the evidence of the rickshaw-puller (P W. 2) according to whom she was bodily lifted by two of the respondents, on her own showing, P. W. 1 had not called out for help on both the occasions.
5. As has rightly been noticed by the learned appellate Judge, the medical evidence did not support that of P. W. 1. No doubt, some minor injuries had been noticed on the person of P. W. 1, but the evidence of the doctor (P. W. 7) would not indicate that the injuries might have been caused during the commission of rape. The doctor had not even given the ages of the injuries sustained by the victim in his evidence in the Court. The presence of some injuries on the person of the victim could not therefore, further the case of the prosecution. The Saree which had been worn by P. W. 1 during the night of occurrence, which according to her, had stains of blood, had not been produced in the Court and identified by P. W. 1.
6. In this state of the evidence, the learned Standing Counsel has submitted and in my view, very fairly so, that the view taken by the learned appellate judge in favour of the respondents cannot be said to be unreasonable or perverse and that it could be taken on the evidence on record find no case for interference.
7. Both the Government Appeals fail and are dismissed.