Allowed

Nilambar Padhan v. State

Orissa HC6 Jan 2017CRLA/569/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal and acquitted the appellant of rape charges. The court held that the prosecution failed to prove lack of consent, reasoning that a victim of that age capable of decision-making and without fear would have resisted or raised alarm if the act were forced against her will. The conviction was set aside due to lack of cogent evidence.

What did the court decide?

Impugned judgment of conviction and sentence set aside. Appellant acquitted. Appellant released from jail custody unless required in another case.

Nilambar Padhan Vs State — Criminal Trial and Appeal | Orissa HC (2017)

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ORISSA HIGH COURT, CUTTACK

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CRLA NO.569 OF 2013

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From the judgment dated 16.11.2013 passed by Shri L.M. Mishra, Addl. Sessions Judge-cum-Special Judge (Vigilance), Bolangir in Sessions Case No.161/29/4 of 2010-2011.

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----- Nilambar Pradhan	--- .....…. Appellant
-Versus-
State of Orissa	……… Respondent
For appellant -	Mr. Manas Chand, Advocate
For respondent -	Mr. P.K. Pattnaik, Additional Government Advocate

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PRESENT:-

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THE HON’BLE MR. JUSTICE SATRUGHANA PUJAHARI

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------------------------------------------------------------------------------------Date of Hearing & Judgment: 06.01.2017

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S.PUJAHARI, J. The appellant herein calls in question the judgment

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of conviction and order of sentence passed against him in Sessions Case No.161/29/4 of 2010-2011 on the file of the Addl. Sessions Judge-cum-Special Judge (Vigilance), Bolangir. The learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Bolangir vide the impugned judgment and order held the appellant (hereinafter referred to as “the accused”) guilty of the charge under Section 376(1) of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.5000/-, in default, to undergo R.I. for a further period of six months.

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2. The case of the prosecution as emanating from the first information report is that the accused on 06.09.2007 on a false pretext took the victim with him in a motorcycle assuring the victim’s father that he would drop the victim in Block office at Tarava where her elder sister recently got employed. However, the accused took the victim on false pretext to Bargarh where he kept her in a lodge and subjected her to sexual intercourse which was without her consent and against her will. The matter was reported at Bolangir Sadar Police Station whereafter she was subjected to medical examination, accused was arrested, incriminating materials were seized and on completion of investigation, chargesheet was laid against the accused, he allegedly having committed offence punishable under Section 363 of I.P.C. read with Section 376 of I.P.C. The plea of the accused before the trial court was one of denial and false implication. Prosecution examined twelve witnesses to bring home the charge against the accused and also exhibited several documents. On the basis of evidence brought on record, the learned trial court being satisfied that the victim was above the age of eighteen years held the accused not guilty under Section 363 of IPC, but held him guilty under Section 376(1) of IPC and sentenced him as aforesaid.

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3. The accused assailed the judgment of conviction solely on the plea that even if the case of sexual intercourse is upheld, but that being not against the will and without the consent of the

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victim, the judgment of conviction under Section 376 of IPC is indefensible.

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4. The learned Addl. Government Advocate, however, defends the impugned judgment of conviction and order of sentence, the victim having deposed incriminating the accused.

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5. What can be inferred from the materials on record the victim appears to have attained the age of discretion for a consensual sex at the relevant time, i.e., when she voluntarily accompanied the accused in a motorcycle from village- Chhantala on way to Tarva, but proceeded with the accused to Bargarh, remained in a lodge and spent the night there where the accused stated to have sexually assaulted her. The victim having attained the age of discretion and quite a grown up girl, when the accused was taking her on false pretext to Bargarh, but during travelling in motorcycle though she had opportunity to raise alarm to attract persons on the way, but neither did she shout for help from passerby nor made any attempt to leave the company of the accused. While she was put in the lodge, she also did not make any allegation or express before any of the inmates of the lodge about her being abducted. In such circumstances, it could be inferred that she was a consenting party, is the submission of the learned counsel for the accused.

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6. The word ‘consent’ has been explained as an act of reason accompanied with deliberation, the mind weighing, as in a

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balance, the good or evil on either side. It is further stated that ‘consent’ supposes three things- a physical power, a mental power and free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as delusion, and not as deliberate and free act of mind. Every ‘consent’ to an act, involves a submission; but it by no means follows that a mere submission involves a consent, e.g., the mere submission of a girl to a carnal assault, she being in the power of a strong man, is not ‘consent’. A woman’s consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it, there is ‘consent’. Similarly, submission of body under the fear of terror cannot be construed as a consented sexual act. ‘Consent’ for the purpose of Section 375 of I.P.C. requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between resistance and assent- whether there was consent or not, is to be ascertained only on careful study of all relevant circumstances. In this regard, reliance can be placed on a decision of the Apex Court in the case of State of H.P. vrs. Mango Ram, (2000) 7 SCC 224. ‘Consent’ is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. The act of helplessness in the face of inevitable compulsions is not ‘consent’ in law. It is also not

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necessary that there should be actual use of force, as mere a threat of use of force is sufficient to come to a conclusion that there was compulsion to obtain consent.

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7. Reverting back, the evidence of the victim would go to show that she was taken by the accused on a false pretext from her village in his motorcycle to Bargarh and then though she had the opportunity to raise alarm and bring the notice of the people to escape from the clutches of the accused. They passed through many villages and towns and had enough opportunity to do the same, still the victim did not do the same and rather went with the accused to Bargarh in his motorcycle, stayed in a lodge in the night along with the accused where the accused stated to have had sexual intercourse with her. She also did not express before any of the inmates or the staff of the lodge that the accused deceived her and brought her forcibly to Bargarh. On the next day morning also after the sexual assault though the accused was stated to have taken him to one of his friend’s house she also did not disclose the incident before any one, rather again she accompanied the accused to the bus stand and she travelled in a bus to Bolangir wherefrom her sister took her to the Police Station and lodged the report. No doubt, the victim stated that as she was extended threat by the accused while she was being taken in the motorcycle she did not make protest, but the aforesaid inspires no confidence inasmuch as nothing is there on record indicating the fact that the

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accused was armed with any weapon of offence and also in the road she did not make any protest and stayed in the lodge. Since she did not protest at any time and also did not escape having the opportunity to disclose and to choose to flee away but voluntarily accompanied the accused, stayed in the lodge and also came back in a bus, it can very well be inferred from the aforesaid circumstances that the victim who had attained the age of discretion to consent for sexual intercourse voluntarily accompanied the accused and stayed with him in a lodge where she consented for sexual intercourse. In such circumstances, it would be unsafe to hold that the sexual assault, if any, was committed against her will and without her consent of the victim by the accused. Since the sexual intercourse was with the consent of the victim, there was no ‘rape’ when attained the age of discretion, the same does not attract the definition of ‘rape’ within the meaning of Section 375 of I.P.C. and, therefore, does not attract the penal provision of Section 376 of IPC. Therefore, the trial court has committed gross error in appreciation of evidence in holding that the sexual intercourse, as such, was a ‘rape’ punishable under Section 376 of IPC.

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8. So, on re-appraisal of the evidence on record, this Court is of the view that no clear, cogent and convincing evidence is available on record indicating that the accused had committed rape on the victim against her will and without her consent in the

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lodge. The evidence of the victim is neither convincing nor there is any substance of truth therein. She is not a truthful witness. Her evidence is, therefore, not reliable and no absolute reliance can be placed on such tainted evidence. Consequently, the impugned judgment of conviction recorded under Section 376(1) of I.P.C. against the accused is unsustainable in the eye of law.

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9. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 16.11.2013 passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Bolangir in Sessions Case No.161/29/4 of 2010-2011 convicting the appellant for commission of offence under Section 376 of the I.P.C. and sentencing him to undergo R.I. for seven years and to pay a fine of Rs.5000/-, in default, to undergo R.I. for six months, are set-aside. The appellant is acquitted of the said charge.

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Since the appellant, namely, Nilambar Pradhan is in jail custody, he be set at liberty forthwith, unless his detention is required in connection with any other case.

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L.C.R. received be sent back forthwith along with a copy of this Judgment.

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S.Pujahari, J.

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……………………..…

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Orissa High Court, Cuttack, The 6^th January, 2017/B. Jhankar/MRS

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Nilambar Padhan v. State

Case brief

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Nilambar Padhan v. State

Case brief

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