N Criminal appeal No 383 of 1991
From the Judgment and Order dated 1771990 of the Orissa High Court in Crl
Rev No 382 of 1986
Janaranjan Das for the Appellants
AK Panda for the Respondent
The Judgment of the Court was delivered by RAY J
Special leave granted
Arguments heard
This appeal by special leave is directed against the judgment and order dated July 17 1990 passed by the High Court of Orissa in Criminal Revision No 382 of 1986 dismissing the revision and affirming the concurrent findings of the courts below
The prosecution case in short is that on 19th March 1983 at about 7pm
while the victim girl Srimanthini Samal PW 2 was going to the house of Rama Samal for study the appellant Gagan informed her that the other appellant Prafulla and others had tied her tutor Rabi Babu in a nearby mango grove and her father was present there
Having believed the version of the appellant Gagan her agnatic uncle she accompanied him and ultimately the appellants forcibly took her to a lonely house in hills where she was made to sit on a chair and the appellant Gagan forcibly thrushed in her mouth a liquor bottle and she was made to drink the liquor
Thereafter both the appellants after having undressed her committed sexual assault on her
Then she was brought to expression highway from where she was bodily lifted to a truck standing there and left her in the truck
While the said truck was unloading materials near village Kurujanga the victim girl stealthily left the truck and concealed her presence near a fence
Subsequently one Purusottam Mohanty rescued her and brought her to his house and then she was left to the house of one Niranjan Rout PW 8 who was distantly related to her and took shelter till her father took her back on being 842 informed
On the information lodged by her father PW 1 in the police station of Badachana a case under sections 363 and 376 read with section 34 of the IPC was registered against the accused appellants and after investigation the IO sent the victim girl as well as the appellants for medical examination and after completion of the investigation a charge sheet was submitted against the appellants to stand their trial
The pleas of the appellants were a total denial of the prosecution case
The appellant Prafulla took the plea the there was a marriage proposal of the victim girl with him but when it was disclosed that she had illicit relationship with her tutor Rabi he refused to marry her for which this false case was foisted against him
The plea of the other appellant Gagan as suggested to the informant was that due to his previous enmity he was falsely implicated with the alleged crime
The appellants were committed to the Court of Sessions
The learned Assistant Sessions Judge after considering the evidences on record rejected the defence pleas and found that the accused appellants committed rape on the victim girl without her consent relying on the provisions of Section 114A of the Evidence Act and convicted them under section 3762g IPC and sentenced each of the accused appellants to rigorous imprisonment for three years considering the young age of the appellants
The Assistant Sessions Judge however acquitted the appellants from the charge under section 366 IPC as the victim girl was more than 16 years of age at the time of occurrence
Against this judgment and order of conviction the appellants filed an appeal being Criminal Appeal No 153 of 1984 in the Court of First Additional Sessions Judge Cuttack
The Additional Sessions Judge considered the pleas of the appellants as well as duly scrutinized and appraised the evidences on record and found that the accused appellants committed rape on the victim girl without her consent and affirmed the conviction and sentence imposed by the Trial Court dismissing the appeal
The appellants thereafter filed a Revision Case being Criminal Revision No 382 of 1986 in the High Court of Orissa at Cuttack against the said judgment and order passed by the First Additional Sessions Judge Cuttack
The High Court duly considered and appraised the evidences of all the 9 P Ws including the deposition of the victim girl Srimanthni Samal PW 2 the evidence of her father PW 1 as well as the evidence of her mother PW 3 and the evidences of the two Doctors PW 4 and PW 5 and held that the accused persons committed rap on PW 2 forcibly without her con 843 sent
It has been further found from the reliable evidences of PWs 1 and 3 that as soon as PW 2 met her mother PW 3 PW 2 told her mother about both the accused persons committing rape on her in a solitary house and also about the accused persons taking her away to the highway and keeping her in a truck and corroborate the version of PW 2 regarding the occurrence of rape committed n her by both the accused persons
It has been further observed that even though the PWs 7 and 8 became hostile still then their evidences can be safely relied on as the same fully corroborates the version of PW 2 that on the relevant night the she with the help of PW 7 had taken shelter in the house of PW 8 PW 6 who the driver of the truck No ORG 4839 also stated in his evidence that the accused persons and two others took the victim girl and left her in the truck
PW 6 further admitted that as he stopped the truck at village Ambura for unloading the boulders the girl had stealthily left his truck and inspite of his searching her he could not trace her
This fully supports the version of PW 2 that she left the truck and concealed herself near a fence in darkness
The learned Judge therefore held Hence on a careful scrutiny of the evidences of the hostile witnesses PWs 6 and 8 it is seen that even they corroborate the evidence of the victim gild PW 2 on material aspects of the prosecution case
 In cases of rape generally it is difficult to find any corroborative witnesses except the victim of the rape
It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat  as follows Corroboration is not the sine qua non for a conviction in a rape case
In the Indian setting refusal to act on the testimony of a victim of sexual assault inthe absence of corroboration as a rule is adding insult to injury
Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt disbelief or suspicion To do so is to justify the charge of male chauvinism in a male dominated society
A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that only incident which is likely to reflect on her chastity had ever occurred
She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members 844 relatives friends and neighbours
She would face the risk of losing the love and respect of her own husband and near relatives and of her matrimonial home and happiness being shattered
If she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family
In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book
And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated
 The above observation has been made by this Court relying on the earlier observations made by this Court in Rameshwar vs The State of Rajasthan with regard to corroboration of girl s testimony and version
Vivian Bose J who spoke for the Court observed as follows The rule which according to the case has hardened into one of law is not that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of prudence except where the circumstances make it safe to dispense with it must be present to the mind of the judge    The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them
There is no rule of practice that there must in very case be corroboration before a conviction can be allowed to stand
 In the instant appeal as had been stated hereinbefore that PW 2 the victim girl has clearly stated in her evidence that she had been taken to a solitary house in the hills by the appellant No 1 Gagan Bihari Samal and there she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other
He uncontroverted testimony has been accepted by all the courts and the courts concurrently found that she was raped without her consent
It has been tried to be contended on behalf of the appellants that the amended section 114A was brought into the Evidence Act after the commission of the offence for which the appellants were charged and as such no assumption can be made on the basis of this provision
This submission is of no avail in as much as it is clearly evident that the victim girl protested and 845 struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on part of the victim girl in such sexual intercourse apart from the legal presumption that follows from the provisions of Section 114A of the Evidence Act
The learned counsel on behalf of the appellants further tried to argue on the basis of some minor discrepancies in the evidences of PW 2 that the prosecution case was a false one and it has been foisted on the appellants due to enmity and also due to accused Prafulla one of the appellants having disagreed to marry the victim girl
The courts below have clearly found that the defence case was not at all sub stantiated by any cogent evidence
So this contention is not at all tenable
It is apropos to mention here the observation made by this Court in the case of State of Orissa vs Nakula Sahu and Ors  which are set out herein Although the revisional power of the High Court under Section 439 read with section 435 is as wide as the power of Court of appeal under Sec
423 of the Code it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice
Inspite of the wide language of Section 435 the High Court is not excepted to act under Section 435 or Section 439 as if it is hearing an appeal
 The High Court of Orissa referred to the said observation and rightly held that the High Court cannot be expected to re appraise the evidence as a court of appeal
This Court hearing an appeal by special leave cannot consider and re appraise the evidences once again in the face of concurrent findings of facts arrived at by all the courts below
For the reasons aforesaid we dismiss the appeal and uphold the conviction and sentence as found by the High Court
RP Appeal dismissed


Summary:
The appellant landlord filed a suit for eviction of the respondent firm defendant commission agent firm from his shop under section 153aiii of the Hyderabad House Rent Eviction and Lease Control Act 1954 on the ground that the appellant required the suit shop for his own personal use as he intended to start commission agency and other business and that the respondent did not vacate the premise inspite of his two notices terminating the tenancy
The respondent filed written statement before the Additional Rent Controller accepting the ownership of the appellant and tenancy of the respondent and denied the appellant s allegation that he required the premises for his personal use as the appellant was a member of Hindu Joint family comprising of his father and his brothers and his brothers and appellant the appellant as one of the partners of registered firm runs a kirana of commission agency shop under the name and style of Ms Rajmal Sumermal Surana and the appellant owned many houses and shops and as such was not entitled to an order of eviction
In the additional written statement it was further stated that the appellant purchased the house from one registered partnership firm and one of the partners of the firm was occupying the house as a permanent tenant since Samwat 2002
It was also contended that the partners of the firm were not made parties to the eviction proceedings and hence the suit was not tenable
The Trial Court considering the evidence allowed the suit holding that the appellant was entitled to evict the respondent in view of the provisions of Section 152vi of the Act though the plea of bona fide requirement was negatived
The tenant respondent filed an appeal under section 25 before the 733 District Judge which was dismissed though it was held that the landlord failed to prove that he required the premises for personal use
The tenant respondent s revision petition under section 26 to the High Court was allowed by a Single Judge
Allowing the landlord s appeal this Court HELD 1
The jurisdiction of the High Court in revision against the order passed on appeal by the District Judge is a limited one and it is almost pari materia with the provisions of Section 115 of the Code of Civil Procedure
The High Court while exercising the revisional jurisdiction can interfere with the order passed on appeal by the appellate authority only on three grounds ie i where the original or appellate authority exercised a jurisdiction not vested in it by law or ii where the original or appellate authority failed to exercise a jurisdiction so vested or iii where in following the procedure or passing the order the original or appellate authority acted illegally or with material irregularity
738C E 2
The findings in any view of the matter whatsoever cannot be held to be either without jurisdiction vested with them nor it can be held to be made by the original or appellate authority illegally or with material irregularity
738G 3
The revisional jurisdiction of the High Court under Section 26 of the said Act is confined strictly to the jurisdictional error or illegal exercise of jurisdiction
The finding of the High Court to the effect that it was the duty of the Court in the interest of justice to interfere even with the concurrent finding of facts because on the record High Court found that there was not a single factor to come to the conclusion that the claim was mala fide or was not bona fide as required by the statute is entirely baseless and not in accordance with the provisions of Section 26 of said Act which confers revisional Jurisdiction on the High Court
738H 739B 4
The claim of permanent tenancy by one of the partners has been clearly and unequivocally made in the additional written statement filed on behalf of the respondent
In such circumstances the provisions of Section 152 vi of the said Act are applicable and an order of eviction can very well be passed on this ground alone
739F 734