PRATAP MISRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) In these appeals by special leave the appellant Pratap Misra (hereinafter referred to as A-1) in Criminal Appeal No. 564 of 1976 and appellant Suresh Chandra Sahu referred to as A-2 and Khitish Chandra Paltasingh referred to as A-3 in Criminal Appeal No. 565 of 1976 have been convicted under S. 452, I. P. C. and sentenced to rigorous imprisonment for one year, under S. 376, I. P. C. and sentenced to rigorous imprisonment for five years, under S. 342 I.P.C. to rigorous imprisonment for two months, and under S. 313 I. P. C. to rigorous imprisonment for three years. Suresh Chandra Sahu A-2 was also convicted under S. 325 I. P. C. and sentenced to rigorous imprisonment for one year. The learned Sessions Judge directed the sentences to run concurrently. The appellants filed appeals against their convictions and sentences to the High Court of Orissa which affirmed the judgment of the Sessions Judge and upheld the convictions as also the sentences passed against each of the appellants. The appellants then moved the High Court for a certificate of fitness for leave to appeal to this Court, which having been refused they obtained special leave from this Court, and hence these appeals.

(2.) Ordinarily this Court does not interfere with the concurrent findings of fact arrived at by the Courts below, but after hearing counsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have completely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact. Furthermore, none of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual intercourse with the prosecutrix not against her will but with her consent and the connivance of her husband P. W. 2. The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals.

(3.) Put briefly the prosecution case is as follows.