Orissa High Court
Khaga @ Khageswar Behera vs State Of Orissa .......... Opposite ... on 16 January, 2019
Equivalent citations: AIRONLINE 2019 ORI 49
Author: A. K. Mishra
Bench: A. K. Mishra
HIGH COURT OF ORISSA: CUTTACK.
Criminal Revision No.192 of 2001
An application under Section 401 of the Code of Criminal Procedure.
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Khaga @ Khageswar Behera .......... Petitioner.
- Versus-
State of Orissa .......... Opposite Party.
Counsel for Petitioner :M/s.R. K. Mohanty, D. Mohanty, D.
Pattnaik, P. K. Rath and A. P. Bose.
Counsel for Respondent :Mr. K. N. Das, Additional Government
Advocate.
PRESENT:
THE HONOURABLE DR. JUSTICE A. K. MISHRA.
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Date of hearing : 11.01.2019 :: Date of Judgment : 16.01.2019
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Dr. A. K. Mishra, J. This revision is filed to assail the concurrent verdict in convicting
the petitioner - accused U/s.376 of the Indian Penal Code (hereinafter referred
as the 'I.P.C.') and sentencing to undergo seven years of rigorous imprisonment
and to pay a fine of Rs.1000, in default to further undergo rigorous
imprisonment for six months with a direction to pay Rs.800/- to the victim as
compensation if the fine amount is realized. The aforesaid conviction and
sentence passed by the learned Assistant Sessions Judge dtd.25.11.1997 in
S.T. Case No.3-A of 1997 has been confirmed by the learned Additional
Sessions Judge, Angul in Criminal Appeal No.1 of 1998 vide judgment
dtd.20.3.2001
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2. The prosecution case in brief is that on 11.11.1994 at about 12
midnight in village Puleswar while victim (P.W.2) was sleeping in her hut and
her husband (P.W.4) had gone to Athamalik Bazar to witness 'Parayan',
accused scaled over the damaged wall, entered inside, lifted her to 'Bari'
(backside of the house) and committed sexual intercourse against her will
giving threatening. Informant knew that accused was imprisoned for having
murdered a woman for which she did not scream out of fear. The husband of
victim returned. Informant disclosed the incident. Both of them went to the
house of neighbor, P.Ws.3 and 5, thereafter went to police station. Informant
orally reported the matter which was reduced into writing and F.I.R. (Ext.3)
was registered at 1 A.M., i.e. after one hour of the incident, i.e. on 12.11.1994.
The medical examination of victim was made by Doctor (P.W.6) who submitted
report (Ext.2). On 14.11.1994 the statement of the victim (Ext.5) U/s.164
Cr.P.C. was recorded. The accused absconded and was arrested on 26.9.1996.
After completion of investigation, charge-sheet was submitted showing the
accused absconder. Case was committed to the court of Sessions.
3. In support of their case, prosecution examined 8 witnesses while
defence examined one.
4. In the trial, defence took the plea of denial and false implication
due to enmity.
5. Basing upon the evidence of informant (P.W.2), getting
corroboration from medical examination report of doctor (P.W.6) and post
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occurrence witnesses P.Ws.3, 4 and 5, learned trial court convicted the
accused and sentenced in the above manner.
5-(a). Learned trial judge, on analysis of evidence, found that the plea
of defence regarding prior enmity was not correct, the evidence of victim was
reliable and got corroboration from her husband and independent witnesses,
her neighbor. The medical evidence through P.W.6 did not run contrary as the
victim was a married lady. The lodging of F.I.R. soon after occurrence and
recording of statement U/s.164 Cr.P.C. strengthened prosecution case.
Learned trial judge also analyzed law in threadbare to record conviction.
5-(b). Accused preferred appeal. The Appellate Court reiterating the findings of
learned trial court and relying upon Section 114-A of the Evidence Act,
dismissed the appeal.
6. In this revision the appellant who was directed to deposit the fine
amount, has failed to do so.
7. Learned counsel for the petitioner vehemently urged that
(i) the evidence of victim is not reliable as she had neither raised protest
nor shouted to attract the attention of neighbor for which she should be
considered as an accomplice or consenting party.
(ii) the medical evidence regarding absence of recent sign and symptom of
sexual intercourse is sufficient to nullify the story of prosecution and
both the Courts, having not appreciated the evidence in proper
perspective, the conviction of accused should be set aside.
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He further contended that the conviction of petitioner is not
supported by any legal sufficient evidence and is against the manifest
weight of the evidence.
8. Learned Additional Government Advocate Mr. K. N. Das
supported the conviction and sentence of the petitioner on the grounds stated
therein. Added to that it is submitted on behalf of State that initially petitioner
had absconded to delay the trial and subsequently flouted the order of this
court to deposit the fine amount, and such conduct is repugnant to exercise
the exceptional jurisdiction of revision by this court.
9. In the light of above submissions, the record is meticulously
perused.
The revisional jurisdiction of this court U/s.397 and 401 of
Cr.P.C. is limited and that is clearly stated in the decision reported in AIR 2018
SC 3173, Kishan Rao Vrs. Sankar Gouda wherein their Lordships of Hon'ble
Apex Court have held as follows:-
"11. This Court has time and again examined the scope of Section
397/401 Cr.P.C. and the ground for exercising the revisional jurisdiction
by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan
Namboodiri, 1999 (2) SCC 452, while considering the scope of the
revisional jurisdiction of the High Court this Court has laid down the
following:
"5......In its revisional jurisdiction, the High Court can call
for and examine the record of any proceedings for the purpose of
satisfying itself as to the correctness, legality or propriety of any
finding, sentence or order. In other words, the jurisdiction is one of
supervisory jurisdiction exercised by the High Court for correcting
miscarriage of justice. But the said revisional power cannot be
equated with the power of an appellate court nor can it be treated
even as a second appellate jurisdiction. Ordinarily, therefore, it
would not be appropriate for the High Court to reappreciate the
evidence and come to its own conclusion on the same when the
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evidence has already been appreciated by the Magistrate as well
as the Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would otherwise
tantamount to gross miscarriage of justice. On
scrutinizing the impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation to come to the
conclusion that the High Court exceeded its jurisdiction in
interfering with the conviction of the respondent by reappreciating
the oral evidence....."
12. Another judgment which has also been referred to and relied
by the High Court is the judgment of this Court in Sanjaysinh Ramrao
Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123.
This Court held that the High Court in exercise of revisional jurisdiction
shall not interfere with the order of the Magistrate unless it is perverse or
wholly unreasonable or there is non-consideration of any relevant
material, the order cannot be set aside merely on the ground that another
view is possible."
9-(a). The evidence of victim has implicated the accused. Her evidence
is cogent, clear and trustworthy. As she was a married lady having child, her
medical examination report post incident was not disclosing any external sign
or injury. That does not mean that the report is contrary to ocular testimony of
the victim. When there is no variation between the ocular testimony of the
victim and medical evidence, it is safe to act upon the same. Even in this
nature of accusation, the absence of medical examination is always not fatal.
Law in this regard has been stated in the decision reported in
2013 (II) SCC 688 Radhakrishna Nagesh vrs. State of Andhra Pradesh
wherein at paragraphs 15 and 19 their Lordships of Hon'ble Apex Court have
held as follows:-
"15. It is a settled principle of law that a conflict or contradiction between
the ocular and the medical evidence has to be direct and material and
only then the same can be pleaded. Even where it is so, the Court has to
examine as to which of the two is more reliable, corroborated by other
prosecution evidence and gives the most balanced happening of events as
per the case of the prosecution.
xxxxxxx xxxxxxxxx xxxxxxxxxxx
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19. In any case, to establish a conflict between the medical and the
ocular evidence, the law is no more res integra and stands squarely
answered by the recent judgment of this Court in the case of Dayal
Singh and Others v State of Uttaranchal [(2012) 7 SCALE 165] "29.
This brings us to an ancillary issue as to how the Court would appreciate
the evidence in such cases. The possibility of some variations in the
exhibits, medical and ocular evidence cannot be ruled out. But it is not
that every minor variation or inconsistency would tilt the balance of
justice in favour the accused. Of course, where contradictions and
variations are of a serious nature, which apparently or impliedly are
destructive of the substantive case sought to be proved by the
prosecution, they may provide an advantage to the accused. The Courts,
normally, look at expert evidence with a greater sense of acceptability,
but it is equally true that the courts are not absolutely guided by the
report of the experts, especially if such reports are perfunctory,
unsustainable and are the result of a deliberate attempt to misdirect the
prosecution. In Kamaljit Singh v. State of Punjab [2004 Cri.LJ 28], the
Court, while dealing with discrepancies between ocular and medical
evidence, held, "It is trite law that minor variations between medical
evidence and ocular evidence do not take away the primacy of the latter.
Unless medical evidence in its term goes so far as to completely rule out
all possibilities whatsoever of injuries taking place in the manner stated
by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown
out."
30. Where the eye witness account is found credible and
trustworthy, medical opinion pointing to alternative possibilities may
not be accepted as conclusive. The expert witness is expected to put
before the Court all materials inclusive of the data which induced
him to come to the conclusion and enlighten the court on the
technical aspect of the case by examining the terms of science, so
that the court, although not an expert, may form its own judgment
on those materials after giving due regard to the expert's opinion,
because once the expert opinion is accepted, it is not the opinion of
the medical officer but that of the Court. {Plz. See Madan Gopal
Kakad v. Naval Dubey & Anr. [(1992) 2 SCR 921 : (1992) 3 SCC
204]}."
10. In the case at hand, the occurrence was immediately disclosed
before the neighbor and within one hour, the F.I.R. was lodged although the
date changed in the meantime, i.e. from 11.11.1994 midnight to 1 A.M. of
12.11.1994. The medical examination of the victim was conducted on
12.11.1994. The 164 Cr.P.C. statement of victim was recorded on 16.11.1994.
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The testimony of victim gets corroboration from the testimony of post
occurrence witnesses, her husband and neighbor.
Both the courts below had appreciated the evidence keeping the
ordinary human conduct in view and this court does not find any manifest
error therein.
11. The contention of learned counsel for the petitioner that F.I.R.
was lodged after 24 hours is not correct as per record, so also there is no
inconsistency in the ocular testimony and the medical evidence. The revisional
court is not to assess whether the evidence is to be believed, but whether if
believed the evidence against the accused would support a conviction. There
being plenty of evidence against the accused and his plea being found not
probable, this court is not inclined to re-appreciate the evidence on record. No
interference of this court in exercise of revisional jurisdiction is warranted.
In the result, the revision fails and stands dismissed.
Sent back the L.C.R.
The trial court is directed to take steps for execution of the
sentence.
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Dr. A. K. Mishra, J.
Orissa High Court, Cuttack, Dated the 16th January, 2019/mkp