Orissa High Court
Gokula Naik vs State Of Orissa on 10 November, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV NO. 80 of 1999
From the judgment and order dated 02.03.1995 of the learned
Judicial Magistrate First Class, Loisingha passed in G.R. Case
No.637 of 1993 (T.R. No. 112 of 1994) and the judgment and
order dated 15.01.1999 passed by Additional Sessions Judge,
Balangir in Criminal Appeal No.36/25 of 1995-96.
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Gokula Naik ......... Petitioner
-Versus-
State of Orissa ......... Opp. Party
For Petitioner: - Mr. Birendra Kumar Nayak
For Opp. party: - Mr. Tusar Kumar Mishra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument and Judgment- 10.11.2016
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S. K. Sahoo, J.The petitioner Gokula Naik faced trial in the Court of learned Judicial Magistrate First Class, Loisingha in G.R. Case No.637 of 1993 (T.R. No. 112 of 1994) for offences punishable under sections 341 and 354 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 02.03.1995 acquitted the petitioner of the charge under section 2 341 of the Indian Penal Code but found him guilty under section 354 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/- (rupees one thousand), in default of payment of fine, to undergo rigorous imprisonment for two months more.
The petitioner preferred an appeal in the Court of Session which was heard by learned Additional Sessions Judge, Balangir in Criminal Appeal No.36/25 of 1995-96 and the learned Appellate Court vide impugned judgment and order dated 15.01.1999 upheld the conviction of the petitioner under section 354 of the Indian Penal Code, however, reduced the custodial sentence from rigorous imprisonment for six months to three months, while confirming amount of fine imposed by the learned Trial Court.
2. The prosecution case, as per the first information report lodged by the victim "T" is that on 04.11.1993 in the afternoon while she had been to take bath to the village canal, at an isolated place, the petitioner getting opportunity caught hold of the right hand of the victim and when the victim protested the petitioner, the later squeezed her breast. The victim shouted which drew the attention of other persons who were working in the nearby field and those persons came and rescued the victim from the petitioner. When the elder brother of the victim came to 3 the spot, the petitioner fled away and the victim complained before the village Panch for settlement of the dispute for which she could not lodge the F.I.R. promptly.
On receipt of the written report presented by the victim at Salebhata outpost, A.S.I. of Police Pitambara Paramguru (P.W.6) made a station diary entry and as the report revealed a cognizable case under section 354 of the Indian Penal Code, he took up preliminary steps of investigation and sent to the report to the Officer in charge, Loisingha Police Station for registration of the formal F.I.R. The Officer in charge, Loisingha Police Station received the report on 19.11.1993 and registered Loisingha P.S. Case No. 115 of 1993 under section 354 of the Indian Penal Code. The case was entrusted to P.W.6 for investigation, who examined the informant and his brother on 19.11.1993, visited the spot and examined more witnesses and after completion of investigation, submitted charge sheet on 19.12.1993 under sections 341 and 354 of the Indian Penal Code.
On 23.3.1994, the learned Trial Court explained the particulars of the offences under sections 341 and 354 of the Indian Penal Code to the petitioner to which he pleaded not guilty and claimed to be tried.
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3. During course of trial, the prosecution examined six witnesses.
P.W.1 is the victim and she stated about the occurrence.
P.W.2 Dullava Sahu is the brother of the victim and he is a post occurrence witness who stated that the matter was not settled before the village Panch for which after ten days of the occurrence, the matter was reported before Police.
P.W.3 Bhubane Behera and P.W.4 Markanda Behera are the eye witnesses to the occurrence.
P.W.5 Gopinath Behera stated to have seen the petitioner fleeing away from the spot. He further stated that the village Panch was called to settle the dispute.
P.W.6 Pitambara Paramguru is the Investigating Officer.
4. The defence plea of the petitioner was one of denial and it was pleaded that there was dispute between the family of the petitioner and family of the victim for which the case has been foisted.
One witness namely Biranchi Mahakud was examined on behalf of the defence who stated that P.Ws.2 to 5 were not pulling on well with the petitioner.
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5. The learned Trial Court held that the allegation of false implication due to prior enmity was not proved and there was no motive for filing a case falsely implicating the petitioner for which delay of ten days in lodging the F.I.R. cannot be held to be fatal to the case of the prosecution and that there was no reason as to why a lady would speak falsely against the petitioner alleging of an incident involving her own modesty. It was further held that there is no improbability in the prosecution story and that P.W.3 and P.W.4 who are the eye witnesses to the occurrence are of undisputed character having no manner of hostility or enmity with either of the parties and their unambiguous testimony is of much help to the success of the prosecution case. It was further held that the evidence of P.W.2 cannot be branded as interested one and that there is no material to discredit any witness or any such contradiction has been brought out to discard their testimony and hence the prosecution witnesses are all reliable. The learned Trial Court disbelieved the evidence of D.W.1 and held that on careful scrutiny of the evidence of prosecution witnesses, an irresistible conclusion comes that the petitioner caught the hands of the victim lady (P.W.1) on the canal road with a notion that none was present there and thereafter squeezed her breast and therefore, the petitioner has committed an offence punishable 6 under section 354 of the Indian Penal Code. The learned Trial Court further held that there is no specific evidence that the petitioner in any way restrained or prohibited the victim from proceeding to the bathing ghat and accordingly acquitted him of the offence under section 341 of the Indian Penal Code.
Learned Appellate Court has been pleased to hold that the evidence does not establish that the petitioner had any enmity with the victim prior to the date of occurrence. It was further held that there is nothing to disbelieve the evidence of P.Ws. 1, 3 and 4 with regard to the explanation for the delayed lodging of the F.I.R. and that the delay in lodging of the F.I.R. has been fully and satisfactorily explained and such explanation also finds mention in the F.I.R. itself. Accordingly, the learned Appellate Court found no infirmity in the impugned judgment of conviction of the Trial Court, however, reduced the custodial sentence from six months to three months while not interfering with the amount of fine imposed by the learned Trial Court.
6. Mr. Birendra Kumar Nayak, learned counsel appearing for the petitioner while assailing the impugned judgment and order of conviction of the learned Courts below contended that the F.I.R. has not been proved by the prosecution and who has scribed the FIR is also a doubtful feature. He further contended that there is inordinate delay in 7 the lodging of the F.I.R. which has not been satisfactorily explained and both the Courts below have not considered these vital aspects properly which has resulted in miscarriage of justice. He further submitted that even if this Court upholds the order of conviction, since twenty three years have already passed in the meantime, it would not be proper to send the petitioner back to jail again.
Mr. Tusar Kumar Mishra, learned Additional Standing Counsel on the other hand contended that the evidence of the victim is clear, consistent and it is not improbable and delay aspect has been considered by both the Courts below and it cannot be said that there is any lacuna in the approach of the Courts below to consider such aspects. He further contended that merely on the ground of delay in lodging the F.I.R., the prosecution case should not be disbelieved.
7. Adverting to the contentions raised at the Bar, there is no dispute that the first information report has not been proved by the prosecution. A plain paper report with one L.T.I. on it stated to be that of the victim is available on record and on the basis of such report, Salebhata Out post Station Diary Entry No.334 dated 18.11.1993 was made by P.W.6 and the report was sent to Loisingha Police Station where it was registered as Loisingha P.S. Case No.115 dated 19.11.1993 by the Officer in 8 charge. The prosecution should have been careful to prove the first information report when the informant or P.W.6 was examined and also by examining the Officer in charge of Loisingha Police Station. The victim has stated in her evidence that the report was scribed by the police on her saying. P.W.6 on the other hand has stated that the victim presented a written report. Since the victim is an illiterate lady, it is clear that someone has scribed the report on her behalf. There are inconsistent statements as to who scribed the first information report. The scribe of the F.I.R. has not been examined. No doubt, the non-examination of the scribe of the first information report cannot be a ground to doubt the prosecution case and it can at best be treated as mere irregularity which can be cured if it is otherwise proved but in the case in hand, when neither the scribe of the F.I.R. has been examined nor the F.I.R. has been otherwise proved, it reflects against the credibility of the prosecution case at the threshold.
8. According to the prosecution case, the occurrence in question took place on 04.11.1993 and the matter was reported before the Village Panch but the dispute could not be settled for which the matter was reported at the police station. The report was lodged at Salebahata Outpost on 18.11.1993 which is thirteen days after the occurrence. The victim has stated that 9 after two to three days of the occurrence, she reported the matter before the village Panch and it was delayed as the villagers told not to report such matter at the police station and they assured to solve the matter at the village. There is no material on record as to when the village meeting was convened and whether the petitioner was called to the meeting or not and when it was felt by the village Panch members that the matter cannot be settled at the village level and accordingly, they advised the victim to lodge the first information report.
Law is well settled that delay in lodging the F.I.R. quite often results in embellishment which is a creature of afterthought. Delay creates a dent in the prosecution story and ushers suspicion in concocting such story. Because of delay, the F.I.R. not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of coloured version. There are certain aspects which require the appreciation of the Court when the delay in lodging the F.I.R. is pointed out. One category of such cases is where the delay has not been explained at all whereas in the other, the prosecution tries to explain the delay. Even in the first category of cases, the Court cannot outright reject the prosecution case. The Court has a duty to see whether there is any material on record which explains the delay in lodging the F.I.R. and whether the delay has got any adverse 10 effect on the prosecution case which has been otherwise established. In the second category of cases, the Court has to see whether the explanation for delay is satisfactory or not. There is no straight jacket formula that if the prosecution fails to explain the delay, the entire prosecution case should be disbelieved in toto and the accused should be acquitted. Permissibility in condoning the delay depends upon the facts and circumstances of each case. The Court must place itself in the position of a victim, an informant or a family member of the deceased and assess the situation under which the F.I.R. has been lodged. Mechanical approach to this vital aspect and blindly following some citations of different Courts without considering the facts and circumstances of that particular case will result in miscarriage of justice. Unexplained delay introduces serious infirmity in the prosecution case against accused. In the sexual offence, it is no doubt true that mere delay in lodging the F.I.R. is not necessarily fatal to the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the Court must take notice. There may be several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge an F.I.R. particularly in a case of sexual assault in a tradition bound society or in rural areas. Therefore, it would not be proper to disbelieve the 11 prosecution case merely on the ground of delay of some days in lodging the F.I.R. when the prosecution offers satisfactory explanation or where the Court on scanning of the evidence on record finds that the delay is very natural in the peculiar facts of the case.
In this case even though an attempt has been made by the prosecution to explain the delay on the ground that there was an attempt made for amicable settlement in the village level and the matter was reported before the Village Panch who delayed the matter and ultimately they asked the victim to report the matter in the police station but no panch members have been examined in this case. There is no material as to when such attempt was made and when a decision was taken that the matter cannot be settled at the village level. Therefore, I am of the view that the explanation which has been offered by the prosecution for delay in lodging the first information report is not satisfactory.
9. The victim has stated in her evidence that while she was going to the canal to take bath, the petitioner caught hold of her right hand near the canal and at that place, the witnesses Bhubane Behera (P.W.3) and Markanda Behera (P.W.4) were digging earth and when she shouted in a loud voice as a matter of protest, the petitioner squeezed her breast. In the cross- 12 examination, the victim has stated that the petitioner was coming with grass bundles and she was facing to the east and the petitioner was facing to the west and the petitioner squeezed her right breast only with his right hand. P.W.3 Bhubane Behera has stated that the petitioner caught hold of the victim and was dragging her forcibly and the petitioner caught hold of the victim in one hand and squeezed the breast with the other hand. P.W.4 Markanda Behera has stated that the victim was pulled and the accused was holding the victim with his left hand while squeezing the breast. He further stated that he cannot say which side of the breast was squeezed. Therefore, it appears that when two witnesses P.W.3 and P.W.4 were at a closed distance, there was an attempt by the petitioner to outrage the modesty of the victim. The statements of the independent witnesses run contrary to what has been stated by the victim.
In view of the aforesaid discussion, when the first information report has not been proved in the case, there is doubt as to who scribed the first information report, the delay in lodging the first information report has not been satisfactorily explained by the prosecution, the statement of the victim and the independent witnesses run contrary to each other, I am of the view that it is fit case where benefit of doubt should be extended to the petitioner.
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Accordingly, the revision petition is allowed. The impugned judgments and orders of conviction by the Courts below are set aside and the petitioner is acquitted of the charge under section 354 of the Indian Penal Code.
The petitioner has been released on bail by this Court during pendency of the revision petition. He is discharged from the liability of his bail bonds. His personal bonds and surety bonds stand cancelled.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 10th November, 2016/Sukanta/Pravakar