STATE OF ORISSA Vs. SURENDRA KUMAR ROUTRAY

JUDGEMENT

(1.) HEARD further argument from both the parties and the judgment is as follows.

(2.) 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 under Section 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 clandestinely 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 -villagers 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 under Section 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.

(3.) A case of rape punishable under Section 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.