On December 11, 2020, the Orissa High Court acquitted the appellant of the charges under sections 376/511 & 354 of the Indian Penal Code after 30-years.
The Bench of Justice S. K. Sahoowas hearing the appeal filed by the appellant Satrughana Nag who faced trial in the Court of learned Additional Sessions Judge, Titilagarh in Sessions Case No.62/22 of 1989.
According to the FIR registered, on October 3, 1989 at about 9.30 pm, the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room, disrobed her saree and attempted to commit rape on her.
As per the official complaint filed, all this happened while the alleged victim was sleeping with her younger brother on a cot in one room of her house and her elder brother and brother’s wife were sleeping in the adjacent room.
Trial Court Findings
The Trial Court had held that the act of the appellant was definitely a step towards the commission of the offence of rape…
…though the penultimate act of thrusting his male organ into the private part of the alleged victim was not completed
The Trial Court further observed that the act of the appellant did not stop at the stage of preparation but it reached the stage of attempt and his intention to commit the offence failed by the reason of the alleged victim’s brother and brother’s wife coming to the spot hearing the hullah of the alleged victim.
Accordingly, the appellant was found guilty of the charges by the Trial Court in March 1990.
Orissa High Court
The High Court, in its order, noted that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration and the Court can act on such testimony and convict the accused.
The Court also remarked that Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances.
On this, the Court noted,
The victim’s version in the Court was of rape but when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed.
The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore, the victim cannot be said to be a truthful witness.
‘Attempt to commit rape’
Regarding the offence of attempt to commit rape, the Court said:
In the given case, there must be material to show that the appellant was determined to have sexual intercourse with the victim in all events and the overt act committed by him must show that it had gone beyond the stage of preparation and it reached the stage of attempt but his intention to commit the offence of rape could not materialise for some kind of interference.
Adding further the court said,
If according to the victim, after falling down from the cot, the appellant was pressing her hands with his hands, it is obvious that in such position her mouth was open and there was no difficulty on her part to raise a shout.
The court also remarked,
In view of the room positions and the surrounding circumstances under which the occurrence stated to have happened, it is evident that the appellant had entered inside the room of the victim in the night but the victim’s conduct and her late reaction in raising shout probably on the arrival of P.W.2 makes it clear that she was a consenting party and after having been caught red handed with the appellant in a compromising position inside her bed room in the night by P.W.2, the victim tried to put the entire blame upon the appellant as perpetrator of the crime, in order to save her own skin among her family members as well as in her society.
Law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent.
While analysing the evidence presented on the record, the Court said that there were many opportunities for the victim to raise shout and protest but she did not do that. The Court further observed,
The victim’s conduct and her late reaction in raising shout probably on the arrival of her brother makes it clear that she was a consenting party and after having been caught red-handed with the appellant in a compromising position inside her bedroom in the night by her brother, the victim tried to put the entire blame upon the appellant as perpetrator of the crime, in order to save her own skin among her family members as well as in her society.
High Court Order
Citing all points as mentioned above, the high court ordered that the conviction of the appellant under sections 376/511 and 354 of the Indian Penal Code was found to be not sustainable in the eye of law by the High Court.
Lastly, the conviction of the appellant under Section 457 of the Indian Penal Code was set aside; instead, he was found guilty under Section 448 of the Indian Penal Code.
Section 448: Punishment for house-trespass.—Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
While observing that the appellant had remained in judicial custody for more than seven months and keeping in view the fact that more than thirty one years have passed since the date of occurrence, the Court sentenced him to undergo imprisonment for the period already undergone by him.
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