Gurubha Singh vs State Of Orissa

V. Narasingh, J.

Heard learned counsel for the Petitioner and Mr. Panigrahi, learned ASC for the State.

This Criminal Revision has been filed assailing the judgment dated 23.11.2001 passed by the learned Adhoc Addl. Sessions Judge (Fast Track Court), Baripada, Mayurbhanj in Criminal Appeal No.12/61 of 2001/2000, thereby affirming the judgment dated 16.09.2000 passed by the learned Assistant Sessions Judge-cum-C.J.M., Mayurbhanj, Baripada in Sessions Trial Case No.66/126 of 1999 (G.R. Case No.637 of 1998) qua the Petitioner, for commission of offences under Section 323 of IPC, sentencing him to undergo R.I. for a period of six months and under Section 363 of the IPC to undergo R.I. for a period of four years and to pay a fine of Rs.2,000/- (Rupees two Thousand), in default, to undergo R.I. for a further period of one year with further direction that the sentences shall run concurrently.

The prosecution case, in brief, is that on 02.07.1998 at about 4.30 p.m., the informant (P.W.2), accompanied by his wife (P.W.3), daughter (the victim, P.W.5), son (P.W.7) and one Kalicharan Singh (P.W.4), was returning from village Bartana after attending a marriage ceremony. Near village Jogi-Nuagaon, the accused persons detained them and manhandled the victim. When the informant protested, the present petitioner, Gurubha Singh, assaulted him on his head with a lathi, causing bleeding injuries and thereafter, the accused persons forcibly took away the victim to the house of co-accused Rama Chandra Singh. The informant initially reported the matter at Badasahi Police Station and, as no action was taken, submitted a written report to the Inspector of Police at Baisinga. In the course of investigation, the victim was rescued from the house of co-accused Rama Chandra Singh, where she disclosed that co-accused Rama Chandra Singh had forcibly committed sexual intercourse with her. Upon completion of the investigation, a charge sheet was submitted against the accused persons under Sections 341, 342, 323, 354, and 363 read with Section 34 of the IPC and against co-accused Rama Chandra Singh under Section 376 of the IPC.

It is apt to note that the present Petitioner, cited as accused No.2 along with the co-accused persons- Ram Chandra Singh and Biran Singh, faced trial for commission of offences under Sections 341/ 342/ 323/ 354/ 363/ 34 of the IPCread with Section 376 of IPC.

To drive home the charge, the prosecution examined nine witnesses of whom, P.W.2 is the informant and father of the Victim, P.W.3 is the wife of the informant and mother of the Victim, P.W.5 is the Victim girl, P.W.7 is the Victim’s brother, P.W.4 is the witness to the occurrence, P.W.1 is the doctor who examined the informant on police requisition, P.W.8 is the doctor who conducted the radiological examination of the Victim girl, P.W.9 is the doctor who examined the Victim girl on police requisition and P.W.6 is the I.O. of the case.

Several documents were exhibited and marked as Exts.1 to 8/1 on behalf of the prosecution.

Neither oral nor documentary evidence was adduced on behalf of the defence. The plea of the defence was one of complete denial.

On considering the materials on record, the Trial Court, while acquitting Biran Singh for lack of evidence, convicted the present Petitioner for commission of offences under Section 323 of the IPC and sentenced him to undergo R.I. for a period of six months and under Section 363 of the IPC to undergo R.I. for a period of four years and to pay a fine of Rs.2,000/- (Rupees Two Thousand), in default, to undergo R.I. for a further period of one year and also convicted the co-accused, Ram Chandra Singh under Sections 342, 363 and 376 of the IPC. On appeal being preferred, the Appellate Court affirmed the judgment of conviction and sentence as imposed. Assailing the same, the Petitioner is before this Court.

Learned counsel for the Petitioner, Ms. Dei, submits, with vehemence, that the appreciation of evidence by the Trial Court as well as the Appellate Court is ex facie perverse and there is no reliable evidence on record to establish the identity of the accused persons, which is of significance in the case at hand. The same having not been taken into account by the Courts below and the perversity in appreciation of evidence on record being telltale, the matter merits examination by this Court in exercise of its revisional jurisdiction.

Mr. Panigrahi, learned ASC for the State, on the other hand, submits that there is no perversity at all so as to warrant interference by this Court in exercise of its revisional jurisdiction.

On going through the evidence of P.W.4 and juxtaposing the same with that of the I.O. (P.W.6), this Court is not persuaded to hold that such evidence can be ignored regarding the identity of the accused persons.

Hence, such submission of the learned counsel for the Petitioner does not merit consideration and the judgments cited primarily on the said count, in the cases of Balu Singh Munda v. State of Odisha reported in (1997) 12 OCR 208 and Pradeep Giri and others v. State of Orissa, (1994) 1 OLR 118, do not come to the aid of the Petitioner.

On analyzing the evidence of the Victim, i.e., P.W.5 and that of the eye-witnesses who were present on the spot and the case of the prosecution, i.e., that the Victim was recovered from the house of the co-accused, this Court does not find any perversity in the appreciation of the evidence by the Trial Court in finding the Petitioner guilty of the offences as stated hereinabove and the approach of the Appellate Court in appreciating such evidence is also found to be cogent.

Hence, the finding regarding the conviction does not merit any interference in this Revision.

Alternatively, it is submitted by the learned counsel for the Petitioner that so far as the sentence is concerned, taking into account that the same does not fall under the embargo under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘P.O. Act’), the benefit of the said Act may be extended to the Petitioner, since the occurrence is of the year 1998 and, over these years, there is no allegation against the Petitioner that he has indulged himself in any other offence and it is submitted that after such lapse of time, directing him to undergo the punishment as prescribed would not serve any purpose.

Learned counsel for the State opposes such prayer of the Petitioner referring to the evidence on record regarding Petitioner’s complicity.

Considering the evidence on record and the well-being report of the Petitioner, who is now aged about 63 years and that nothing has been brought to the notice of this Court to indicate that, since his release on bail on 26.09.2000, he has indulged in the commission of any other offence, this Court, in the light of the judgment of the Apex Court in Chellammal and Another v. State represented by the Inspector of Police, 2025 SCC OnLine SC 870, finds substance and force in the submissions of the learned counsel for the Petitioner and accordingly, this Court holds that this is a fit case for invoking the provisions of the P.O. Act, since ex facie the punishment prescribed for the offence in question does not suffer from the disqualification envisaged under Section 4(1) thereof.

Hence, while maintaining the conviction recorded against the Petitioner by the Trial Court, as affirmed by the Appellate Court and having regard to the facts and circumstances, this Court is inclined to direct the release of the Petitioner on probation under Section 4 of the P.O. Act, on conditions to be settled by the Trial Court.

14-A. In the present factual matrix of the case, the imposition of fine is set aside.

Accordingly, the Criminal Revision along with the pending I.A(s) stand disposed of.