Judgment:
R.N. Biswal, J.
1. This appeal has been directed against the judgment and order dated 11.8.1992 passed by the C.J.M.-cum-Assistant Sessions Judge, Koraput-Jeypore camp at Malkangiri in sessions Case No.96 of 1991 wherein he acquitted the accused-respondent of the offence under Section 376 of I.P.C. and convicted and sentenced him for the offence under Section 354 of I.P.C. only.
2. As per the prosecution case on 22.8.1991 at about 2.00 P.M. while the victim (P.W.1) had been to attend the second call of nature, behind the veterinary office of Kudumulugumma, the accused-Respondent and co-accused Nalu Dora came near her and while accused Nalu caught hold of her, accused-Respondent ravished her against her will and without her consent. It was also alleged that accused Nalu snatched away her gold ring. As depicted in the F.I.R., because of fear of casting of slur in her good name she was in double mind to lodge F.I.R. or not. But when the O.I.C. of Orkel P.S. came to her village and some villagers asked her to report the incident, she lodged the report on 24.8.1991. As the allegations contained in the report revealed a cognizable case for the offence under Sections 376/394/34 I.P.C., the O.I.C. treated it as F.I.R., sent it to the P.S. for registration and took up investigation. In course of investigation the I.O. seized one umbrella and one 'Dhala' which the victim had carried to the spot, the wearing apparel of the accused-respondent and the alleged victim cash of Rs. 180/- and prepared seizure lists in respect thereof. He also seized one he-goat as it was revealed during investigation that the accused persons had purchased the same and another he-goat which had already been killed, by the sale proceeds of the gold ring. He got the victim medically examined and after completion of investigation finding a prima facie case against the accused persons submitted charge sheet against them for the offence under Sections 376/294/34 of I.P.C. The plea of the accused persons was complete denial of their involvement in the crime in question.
3. In order to prove its case the prosecution examined ten witnesses, of whom P.W.1 is the victim, P.Ws 2 to 4 and 6 are the witnesses before whom P.W.1 disclosed the alleged incident, P.W.5 is a seizure witness, P.Ws. 7 and 8 are doctors and P.Ws. 9 and 10 are I.Os. P.W.6 turned hostile to the prosecution. The accused persons preferred not to examine any witness. After assessing the evidence on record the trial Court did not believe that accused Sarat committed rape on the alleged victim, but found him guilty for the offence under Section 354 of I.P.C. and convicted him thereunder. Similarly, he acquitted the co-accused for the offence under Section 392 of I.P.C., but convicted him for the offence under Section 379 of I.P.C. Both of them were sentenced to undergo R.I. for one year each. Being aggrieved with the said judgment and order, the State of Orissa filed Criminal Misc. Case No.1981 of 1992 for leave to appeal. However, leave was granted to file appeal against the order of acquittal of the accused-respondent alone of the offence under Section 376 of I.P.C. and the criminal Misc. case was directed to be registered as Govt. Appeal. Accordingly, the aforesaid Govt. Appeal was registered.
4. Learned Addl. Standing counsel submitted that P.W.1, the victim in her evidence before the Court below described in detail how she was being ravished by the accused-respondent, while the co-accused gagged her mouth. Immediately after the occurrence she disclosed the incident before P.W.2, her husband and other inmates of the house. P. W.7, the lady Assistant Surgeon opined that the possibility of commission of rape on the victim could not be ruled out. So the trial Court ought to have convicted the accused-respondent for the offence under Section 376 of I.P.C., particularly when it believed a part of the evidence of P.W.1 to be true. He further submitted that the grounds on which the trial Court acquitted the accused-Respondent of the offence under Section 376 of I.P.C. are not justified. As against this, the learned Counsel appearing for the accused-Respondent submitted that there was delay of two days in lodging the F.I.R., which was not satisfactorily explained. The prosecution withheld the examination of independent charge sheet-witnesses and preferred to examine only the relatives of the alleged victim. The evidence of P.W.1 that the occurrence took place in broad day light or a weekly Hat day just behind a veterinary hospital seemed to be improbable. So the trial Court rightly disbelieved the allegation of rape on P.W.1. Accordingly he prayed to dismiss the appeal.
5. The trial Court disbelieved the allegation of rape because of delay in lodging the F.I.R. improbability of the commission of rape in view of the time, place and the fact that the date of occurrence was a weekly Hat day and because of non-examination of material independent witnesses.
6. There was delay of two days in lodging the F.I.R. As discussed earlier as per the F.I.R. because of fear of stigma, the victim was in double mind whether to lodge F.I.R. or not. But when the O.I.C. of Orkel P.S. came to her village two days after the occurrence and on being persuaded by the villagers she lodged it. On the other hand while being examined before the Court she deposed that since her father was absent in the house she did not prefer to lodge F.I.R. without consulting him. After he arrived in the house, on his consent only she lodged the F.I.R. which is contrary to the explanation given in the F.I.R. Admittedly P.W.2 is the husband of P.W.1, P.W.3 is the younger brother of P.W.2 and P.W.4 is the wife of P.W.3. So all of them are closely related to one another. Satyanarayan Bhol and his wife and Kada and his wife before whom P.W.1 disclosed the alleged incident just after the occurrence were not examined by the prosecution. Furthermore, as found from the F.I.R. P.W.1 stated before them that the accused persons including the accused-Respondent misbehaved her, she did not state before them about any sexual assault. As stated earlier it is depicted in the F.I.R. that after the O.I.C. of Orkel P.S. came to the occurrence village and some co-villagers of P.W.1 asked her to lodge a report, then only she lodged it. Had not the O.I.C. come to her village and the co-villagers asked her to lodge F.I.R., perhaps P.W.1 would not have lodged it. It is the settled principle of law that in an appeal against acquittal, if the finding of the trial Court is reasonably possible even if another view could have been taken, it should not be interfered with. In my view the finding of the Court below is reasonably possible. The occurrence took place in the year 1991. In the meantime 15 years has already been elapsed. As it appears, the accused-Respondent has already undergone sentence of one year for the offence under Section 354 of I.P.C.
Therefore, under such facts and circumstances, I am not inclined to alter the finding of the trial Court and as such the Government Appeal stands dismissed.