B.K.MISRA, J. CRLA. NO.56 OF 2008 (Decided on 11.03.2011) NIRANJAN PANDA ..……. Appellant. .Vrs. STATE OF ORISSA …… … Respondent. PENAL CODE, 1860 (ACT NO. 45 OF 1860) – S.376 (2) (f). For Appellant - Mr. G.N.mohapatra & Miss Tejasmita Mohapatra. For Respondent - Mr. J.Patnaik Addl.Govt. Advocate. B.K.MISRA, J. The appellant, who is suffering incarceration since 3.10.2006 being aggrieved with the order of conviction and sentence imposed on him by the learned Adhoc Additional Sessions Judge, (Fast Track), Jajpur in S.T. Case no.30 of 2007 has preferred this appeal. The learned Adhoc Additional Sessions Judge, (Fast Track), Jajpur convicted the appellant under Section 376 (2) (f) of the Indian Penal Code (in short, “I.P.C.”) and sentenced him to undergo rigorous imprisonment for ten years. 2. The case of the prosecution is that the victim girl who happens to be the “BHANIJI” (sister’s daughter) of the informant Sarat Chandra Panda (P.W.6) was prosecuting her studies when the occurrence took place by remaining with P.W.6. It is alleged that on the evening of 24.5.2005 around 7 P.M. the victim along with her friends proceeded to witness “SAPTA” (worshipping of the village deity) where the appellant seeing the victim playing alone dragged her to the nearby “Ankura Badi” and there undressed the victim by removing her frock and panties and gagged her mouth with a towel when the victim cried aloud and after making her to lie on the ground ravished her. It is alleged that the appellant also threatened the victim not to disclose the matter before anybody or else she would be done to death. After the incident, the victim reported the matter to her aunt (MAAIN). The informant Sarat Chandra Panda (P.W.6), who is the uncle of the victim reported the matter to the father of the victim, Santosh Panda (P.W.5) in his village and thereafter, the father of the victim as well as the informant (P.W.6) complained before the father of the appellant, but when the father of the appellant did not take any action, information was lodged before the O.I.C., Binjharpur Police Station in writing vide Ext.2. Police on receipt of the said information took up investigation of the case and on completion of the investigation placed the charge-sheet against the appellant to stand his trial. 3. The plea of the appellant was of complete denial of the occurrence. 4. The prosecution in order to establish its case against the appellant examined as many as ten witnesses in all and of them, P.W.7 is the victim, P.W.6 is the informant, P.W.5 is the father of the victim, P.Ws. 3 and 10 are the two aunts (MAAIN) of the victim, P.Ws.2 and 4 are the two friends of the victim, P.W.1 is the doctor who examined the victim. P.Ws.8 & 9 are the two I.Os. The appellant declined to examine any witness in his defence. 5. The learned trial Court formulated two points for determination, namely:- “I) Whether the accused Niranjan committed rape on the victim Sunita Panda who was under the age of 12 years ? ii) Whether on the same date, time and place of occurrence the accused committed criminal intimidation by threatening to kill the victim?” 6. The learned trial Court on examining the evidence on record believing the evidence of P.Ws.6 and 7 and the medical evidence arrived at the conclusion that the prosecution could establish its case against the appellant under Section 376 (2) (f) of the Indian Penal Code and passed the impugned sentence. But the appellant was acquitted of the charge under Section 506 of the Indian Penal Code. 7. Miss. Tejasmita Mohapatra, learned counsel appearing for the appellant while taking me through the evidence on record argued with vehemence that no court of prudence could have recorded an order of conviction especially when the victim herself did not support her case and the manner in which the learned Adhoc Additional Sessions Judge, (Fast Track), Jajpur dealt with the matter that speaks that something has gone wrong in our criminal justice system for which people’s faith in our adversarial system is being eroded. Accordingly, it was urged that the impugned order of conviction and sentence be set aside and the appellant be acquitted 8. Learned counsel appearing for the State also very fairly conceded that in view of the evidence of P.W.7 the victim as well as the informant and when there is no evidence worth the name to support the case with the prosecution, the appellant could not have been convicted and he can not support the order of the conviction and sentence imposed on the appellant. 9. After hearing the learned counsel for the appellant and the Additional Government Advocate, I scanned the entire evidence on record. P.W.7, the victim in her evidence has not breathed a word against the appellant that the appellant dragged her to a nearby “Ankura Bari” and ravished her on 24.05.2005 around 7.00 P.M. On the other hand, it is the victim, who has specifically deposed that “one person caught hold her and established illicit relation with her by doing unfair work with her”. It is also her evidence that, that man opened her pant and after opening his pant also, raped her. In her cross-examination, P.W.7 has specifically stated that it was a dark night when the occurrence took place and because of that darkness, she could not know who dragged her towards the “Ankura Bari”. Thus, P.W.7, the victim did not implicate the appellant at all in the alleged rape. P.W.7 also has not breathed a word if the appellant who was in dock when she was deposing in Court was that man who dragged her to the Ankura Bari” on 24.05.2005 evening and ravished her. P.W.3 who is the aunt (MAAIN) of the victim before whom the prosecution alleges that the victim narrated the incident immediately after the occurrence deposed that she does not know anything regarding the incident. Similarly, P.W.10, who is another aunt (MAAIN) of the victim also deposed on oath that she does not know anything about the incident. Both P.Ws. 3 and 10 were declared hostile by the prosecution as they did not support the case of the prosecution. But those were futile attempts on the part of the prosecution, as nothing could be elicited from their mouth to throw any light on the point of occurrence. The two friends of the victim, namely, P.Ws.2 and 4 in whose company the victim had gone to witness 2 “SAPTA” on the alleged date and time they have also not supported the case of the prosecution. P.W.2, only deposed that two years back in the evening hours she along with Tapaswini, Sunita and others were playing near one “Saptaghara” and except that she did not breath a single word about the alleged rape on P.W.7. Similarly P.W.4 another friend of P.W.7 simply deposed that she does not know anything regarding the occurrence. She simply deposed that she heard from villagers that the accused had ravished Sunita. Thus this shows that P.W.4, who is another star witness for the prosecution, did not support the F.I.R. story of rape. It is the established position of law that hearsay evidence is no evidence. Thus when P.Ws.2 & 4 did not support the case of the prosecution they were declared hostile, but those were vain attempts on the part of the prosecution. P.W.5 is the father of the victim and he deposed that while he was in his village in the month of April, 2005 Sarat (P.W.6) came and reported that the son of Nilamani Panda to have raped his daughter for which he proceeded to the police station and Sarat Chandra Panda presented the F.I.R.. The informant Sarat Chandra Panda, who has been examined as P.W.6, deposed that he heard from his sister-in-law (Bhauja) that the appellant had raped the victim. P.W.6 deposed that he lodged the F.I.R. 9Ext.2). P.W.6 in his cross-examination deposed that he himself did not write the F.I.R., but it was scribed by a person as per his version. P.W.6 also deposed that he did not ask the victim nor her friends about the occurrence. Thus, the evidence of P.W.6, the informant is also of no help to the case of the prosecution. 10. The evidence of P.W.1 the Medical Officer that there was sign and symptoms of partial penetration to the genital of the victim and the medical examination report Ext.1 can not by itself probablises the case of the prosecution case as the victim herself has not supported the case of the prosecution. P.Ws. 8 & 9 are the two Investigation Officers who are admittedly post occurrence witnesses and therefore their evidence is also of no assistance to the case of the prosecution. 11. Very unfortunately, in the instant case the learned Adhoc Addl. Sessions Judge (Fast Track), Jajpur observed in the body of the judgment in para-13 that by placing reliance on the evidence of victim P.W.7, P.W.6 the informant and the medical evidence i.e. of P.W.1, it can safely be concluded that the offence under Section 376 (2) (f) of I.P.C. has been well established by the prosecution against the appellant. I have no hesitation in my mind that the finding of guilt of the appellant can not at all be sustained in the eye of law. The evidence on record do not at all establish the charge of rape against the appellant. It is the settled position of law that “the paramount consideration of the court should be to avoid miscarriage of justice. Law can not afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. The concepts of probability, and the degrees of its, can not obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uniformed legitimization of trivialities would make a mockery of administration of criminal justice”.(2009) 43 OCR (SC) 338 State of Rajasthan-vrs- Mohan Lal. 12. It should be borne in mind that in a criminal trial the burden of proving everything essential to the establishment of the charge against the accused always rests on the 3 prosecution, as every man is presumed to be innocent until contrary is proved and criminality is never to be presumed subject to statutory exception. 13 Article 21 of the Constitution of India provides for a right to a fair trial. Marshalling and appreciation of evidence must be done strictly in accordance with law. Appreciation of evidence must be on the basis of materials on record and not on the basis of some reports and each accused person has his human right and he should be tried in accordance with law. In a criminal proceeding, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Presumption of innocence is a human right. Such a legal principle can not be thrown aside under any situation. (2008) 40 OCR (SC) 584 – Harendra Sarkar –vrs- State of Assam, (2004) 10 SCC 699 – Narendra Singh & Anr. –vrs. State of Madhya Pradesh & (2005) 5 SCC 294 – Ranjitsingh Brahmajeetsing Sharma-vrs- State of Maharasthra & anr. 14. Keeping in mind the aforesaid well established cannons of law and evidence on record as evaluated in this case the only irresistible conclusion emanates is that by convicting the appellant in the instant case there has been a miscarriage of justice as there is no grain of evidence against the appellant to fasten him with the liability of ravishing a minor girl. It is an established position of law that courts should not be swayed away with emotions and courts can not act on surmises or suppositions. The Court always looks for legal evidence to establish the culpability of the perpetrator of the crime. 15. In the aforesaid view of the matter, the order of conviction of the appellant under Section 376 (2) (f) of the I,P.C. and sentencing him to undergo R.I. for ten years for the said offence can not be sustained in the eye of law for a moment. Accordingly, while allowing the appeal, the order of conviction and sentence is hereby set aside and the appellant is set at liberty forthwith. Resultantly, the appeal stands allowed. Appeal allowed. 4