MADHU GADABA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE judgment and order dated 13.9.1996 passed by the Sessions Judge, Koraput in Criminal Appeal No. 170 of 1994 confirming the judgment and order of conviction and sentence passed by the Asst. Sessions Judge, Jeypore in S.C. Case No. 29 of 1994 are under challenge in this revision.

(2.) THE prosecution case, stated in nub is that on 23.11.1993 during morning hour P.W.1, a married lady, was alone in her house. Taking advantage of the situation, the accused Madhu Gadaba went there and forcibly lied her on the ground, lifted her wearing apparels and while attempting to commit rape on her, P.W. 1 inflicted a kick on him and raised hullah hearing which P.W. 2 rushed there, at the sight of whom the accused fled away. When the husband of the victim returned, she narrated the entire incident before him and being annoyed, he searched for the accused, but could not trace him out. On the next day, a meeting was convened in presence of P.Ws. 1, 2 and 5 and some others including the accused where the accused confessed his guilt. So, the Punch members imposed a fine of Rs. 1000/ - on him, but on his request, it was reduced to 700/ -. On that very day itself, the accused paid 200/ - with undertaking that he would pay the rest amount shortly thereafter. But, as he did not make payment, on the instruction of the Punch members, P.W.1 orally reported the incident before the O.I.C. Borigumma Police Station (P.W.6), who reduced the same into writing. As the allegation contained in the report, which was treated as F.I.R., revealed a cognizable case, P.W.6 registered PS. Case No. 119 of 1993 and took up investigation. In course of investigation, he examined the witnesses, visited the spot, seized Rs. 200/ - from Kamal Lochan Gadaba, prepared seizure list, in respect thereof as per Ext. 1, arrested the accused, forwarded him to the Court and after completion of investigation submitted charge sheet against the accused under Sections 450 and 376/511 of I.P.C. The case having been" committed to the Court of Session, it was transferred to the Court of Asst. Sessions Judge, Jeypore who framed charge under the aforesaid Sections against the accused and on denial of the charge conducted the trial of the case.

(3.) LEARNED Counsel appearing for the Petitioner submits that the trial Court as well as the Appellate Court committed gross error in holding that the Petitioner confessed his guilt. It transpires from the evidence of P.W.3 that P.W.1 disclosed the incident before the Punch narrating the fact as to how the Petitioner attempted to commit rape on her. Being questioned by the Punch members, the Petitioner stated that he had been to the house of P.W.1 to light a Bidi and further stated that "Mu Dosa Karichi". Confession has not been defined in the Indian Evidence Act. It is a species of the genius "admission". In other words, every confession, is admission, but not the Wee verse. Admission, which is inculpatory in nature is confession. The statement made by the Petitioner as noted above is not inculpatory statement, as such it cannot amount to confession. Mr. Swain, learned Addl. Government Advocate submits that even if that part of evidence is not taken into consideration, still then there is sufficient evidence to hold the Petitioner guilty under Sections 450 and 376/511 of I.P.C. As per his submission P.W.1 is admittedly a married lady. As transpires from her evidence, while she was alone in her house and was engaged in cooking, taking advantage of the situation the Petitioner went inside that house, made her lie forcibly on the ground, lifted her clothes and while going to penetrate is private part on the private part of P.W.1, the latter inflicted a kick blow and raised hullah, hearing which P.W.2 rushed to the spot, at whose sight the Petitioner took to his heels. No doubt, P.W.2 turned hostile to the prosecution and expressed her ignorance regarding the incident, but there is no reason why P.W.1, a married lady would falsely depose that the Petitioner attempted to commit rape on her inviting social stigma. So, according to Mr. Swain, learned Addl. Government Advocate, the trial Court rightly convicted the Petitioner and the Appellate Court committed no error in upholding the same. Accordingly, he strenuously urged to dismiss the revision. Per contra, learned Counsel appearing for the Petitioner submits that save and except P.W.1, nobody has seen the alleged occurrence. The evidence of P.W.1 suffers from major contradictions and inconsistency. So, the trial Court committed gross error in convicting the Petitioner. The Appellate Court equally erred in upholding the judgment and order of conviction as passed by the trial Court.