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1997 DIGILAW 180 (ORI)

BIDYA ALIAS BIDESI NAIK v. STATE OF ORISSA

1997-07-25

R.K.DASH

body1997
JUDGMENT : R.K. Dash, J. - This appeal is directed against the judgment and order of the learned Assistant Sessions Judge, Talcher, by which these three appellants (hereinafter referred to as 'the accused persons') have been convicted under Sections 376 and 394, I.P.C. and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- in default of payment of time, to undergo rigorous imprisonment for a further period of one year for the offence under Section 376, I.P.C. and to undergo R.I. for two years and to pay a fine Rs. 1000/- in default of payment of fine, to undergo R.I. for a period of one year for the offence under Section 394, I.P.C. Both the substantive sentences have been ordered to run concurrently. 2. Prosecution case unfurled during trial depicts a sordid tale as to how these three accused persons finding a young boy and a girl alone in a lonely place, assaulted and tied the boy to a tree, ravished the girl one after another and snatched away their belongings, such as, wrist watches, torch light, etc. The incident, according to the prosecution. happened on 14.3.1991. Dinabandhu Naik, P.W. 15 and the girl (name omitted), P.W.14 tough belong to two different villages, but were classmates and friends. Their intimacy developed and at last they decided to leave the village and go to Malyagiri cave. On 13.3.1991 around 9.30 P.M. both of them left for Malyagiri. Next day at about 3 P.M. they reached Kurumula village and took water from a village woman who coming to know of their destination advised them to stay in the village for the night. But without listening to her, they left the village and took the path in the forest to, reach Malyagiri. After having proceeded a certain distance they sensed somebody following them. In the meantime, these accused persons arrived and enquired about their journey. Knowing that they were going to Malyagiri, they asked the boy and the girl to come with them to the village to which they refused. Suspecting their evil design, they instead of proceeding towards Malyagiri, returned back. After having proceeded a certain distance they sensed somebody following them. In the meantime, these accused persons arrived and enquired about their journey. Knowing that they were going to Malyagiri, they asked the boy and the girl to come with them to the village to which they refused. Suspecting their evil design, they instead of proceeding towards Malyagiri, returned back. They had hardly covered half a kilometre, these accused persons who were following them, detained them on the way, assaulted P.W.15 mercilessly, tied him to a tree, forcibly made the girl lie on the ground and committed sexual intercourse with her twice, and after satisfying their lust while leaving the spot, snatched away their wrist watches, torchlight and cash of Rs. 800/-. By such beastly act of the accused persons the girl lost her sense. After some time she regained her sense and then came to P.W.15 and freed him. In the forest they lost the path and moved here and there for about ten days and on the 11th day they crossed the forest and reached a village. They narrated the awful incident to an old man who took them to the Grama Rakshi. The local police ultimately came to their rescue, brought them to the police station and then sent to the hospital for medical examination. The accused persons were apprehended, the stolen wrist watches and the torchlight were recovered and a test identification parade of both person and property were held. 3. F.I.R. was lodged on the next day of the incident by Bhramarabar Naik, P.W.1 before whom accused Bidya alias Bideshi Naik and Lambodar Naik had made confessional statements that they committed rape on a girl after assaulting the boy accompanying her and snatched away their belongings. A meeting was convened in the village where these two accused persons confessed their guilt. The medical evidence supported the version of the victim girl of her having been sexually molested on the date of the incident and the materials collected during investigation revealed a prim facia case under Sections 376 and 394, I.P.C. Accordingly, charge-sheet was laid against the accused persons to stand their trial. 4. The plea of the accused persons was denial simpliciter. 5. In order to bring home the charges to the accused persons prosecution examined 16 witnesses including the two victims, P.Ws. 4. The plea of the accused persons was denial simpliciter. 5. In order to bring home the charges to the accused persons prosecution examined 16 witnesses including the two victims, P.Ws. 14 and 15, and the learned trial Court upon consideration of the evidence found all the three accused persons guilty of the offence and consequently convicted and sentenced them as hereinbefore stated. 6. Learned counsel Shri M.K. Mohanty appearing for the accused persons strenuously contended that there is no cogent and convincing evidence to support the prosecution allegation about the involvement of these accused persons in the alleged crime. Elaborating his argument, he urged that the accused persons being unknown to P.Ws. 14 and 15 were put in T.I. Parade during investigation but since the said parade was not conducted within reasonable time, the possibility of the witnesses seeing them before identification cannot be ruled out and it is because of the delay which is unexplained the report loses its value. Therefore, if the T.I. Parade report is excluded from consideration, there remains the evidence of identification in Court and as the law stands, identification for the first time in Court cannot be accepted and relied upon to support the prosecution case. His further submission was that P.W.14. the victim girl, being an accomplice, in absence of any corroboration, it would be risky to rely upon her testimony for finding the accused persons guilty of the offence. 7. Counsel appearing for the State, on the other hand, supporting the impugned judgment urged that the learned trial Court on a thorough assessment of the evidence arrived at the conclusion of guilt of the accused persons and therefore, the same should not be upturned without any convincing reason. 8. The evidence on which the prosecution relied upon in support of its case may be catalogued as follows.: (i) Ocular evidence of both the victims, viz., P.Ws. 14 and 15. (ii) Medical evidence of P.Ws. 12 and 13. (iii) Extra-judicial confession of accused Bidya alias Bideshi Naik and Lambodar Naik made before the villagers, namely, P.Ws. 1, 3,4 and 5. (iv) Evidence of identification. 9. P.W. 14 and 15 being the victims of the crime have given a graphic picture as to how the barbaric act was committed by the accused persons on the alleged date of incident. (iii) Extra-judicial confession of accused Bidya alias Bideshi Naik and Lambodar Naik made before the villagers, namely, P.Ws. 1, 3,4 and 5. (iv) Evidence of identification. 9. P.W. 14 and 15 being the victims of the crime have given a graphic picture as to how the barbaric act was committed by the accused persons on the alleged date of incident. P.W.14 says that both she and her friend, P.W.15, left the village on 13.3.1991 round about 9.30 P.M. On the next day at about 3 P.M. they reached village Kurumula and from there they took a hilly path to go to Malyagiri cave. While going they found those accused persons following them. Suspecting their evil design, they retreated for about half a kilometre. In the meantime the accused persons arrived, assaulted P.W.15, tied him to a tree and thereafter made her lie on the ground and sexually molested her one after another against her will. After having satisfied their lust, they snatched away the wrist watches and torchlight and cash of Rs. 800/- from them and left the spot. While going they warned them that if they reported the matter to the police or anybody else, they would face the consequence. Because of such dastardly act she could not move about. Three to four hours after she could manage to stand and walk up to P.W.15 and freed him. They spent about 11 days in the forest, since they lost the path in the forest. At last they crossed the forest, met one old man and narrated him the incident. Local police being informed, brought them to police station and then sent for medical examination. She would further say that she attended the T.I. Parade where she identified the accused persons as rapists. The next witness is P.W.15. Corroborating the evidence of P.W.14 he stated that all the accused persons finding him and P.W.14 alone in the forest, assaulted and tied him to a tree and thereafter forcibly raped P.W.14 one after another. They also snatched away their wrist watches, torchlight and cash of Rs. 800/-. After their departure, P.W.14 untied him. They took rest for some time in the forest and then moved for the destination, but they lost the path. They remained in the forest for 11 days and ultimately police came to their aid and got them medically examined. They also snatched away their wrist watches, torchlight and cash of Rs. 800/-. After their departure, P.W.14 untied him. They took rest for some time in the forest and then moved for the destination, but they lost the path. They remained in the forest for 11 days and ultimately police came to their aid and got them medically examined. The defence during cross-examination could not bring out anything to discredit these two witnesses (P.Ws. 14 and 15). Nothing was also suggested to them that they had any motive to falsely implicate them in the crime. To me, they are natural witnesses and their evidence being true, cogent and convincing inspires confidence. 10. Corroboration is not a rule of law but rule of prudence. The basic fundamental of criminal law with regard to appreciation of evidence is that uncorroborated testimony of a single witness if believed is sufficient to establish any fact. This is based on the principle that evidence is to be weighed and not counted. Therefore, as a general rule, a Court can act upon the uncorroborated testimony of a single witness, provided he is found to be trustworthy. In the present case, the evidence of P.Ws. 14 and 15, as discussed above, being clear, cogent and convincing, is sufficient to accept and act upon it. However, to lend assurance to their testimony, prosecution brought on record the evidence of two doctors as also evidence of extra-judicial confession made before the village gentries. It would appear from the evidence of P.W.12, Medical Officer, Khamar Upgraded PHC, that he on police requisition examined P.W.15 and found two injuries near occiput and left side of forehand, above the eyebrow and fracture on the middle third of right clavicle. The next doctor is P.W.13 who on examining the victim girl P.W. 14 found that her hymen and fourchette were torn and these injuries, according to him, could be possible by rape. 11. Coming to the evidence of extra-judicial confession, it is in the evidence of P.W.1 that in the night of the incident while he was relaxing on a cot outside his house he saw the accused Bidya alias Bideshi Naik and Lambodar Naik hurriedly coming towards him whispering something between them. 11. Coming to the evidence of extra-judicial confession, it is in the evidence of P.W.1 that in the night of the incident while he was relaxing on a cot outside his house he saw the accused Bidya alias Bideshi Naik and Lambodar Naik hurriedly coming towards him whispering something between them. On his asking as to why they were hurry, accused Lambodar initially was reluctant to tell anything but on assurance being given that confidence would be maintained, he (Lambodar) narrated the whole incident and confessed that he along with other accused (Nirakar and Bidya alias Bideshi) detained a young boy and a girl in the forest, assaulted and tied the former and thereafter ravished the girl one after another. P.W.1 further stated that a meeting was convened in the village to which all the three accused persons were called. While accused Lambodar and Nirakar attended the meeting, accused Bideshi absconded. In the said meeting the above two accused persons also confessed their guilt. This evidence of P.W.1 finds sufficient corroboration from the evidence of P.Ws. 3, 4 and 5, the co-villagers of the accused persons. On a scrutiny of the evidence of all the above witnesses, I find that nothing could be elicited during cross-examination to doubt their credibility. 12. As regards the evidence of identification, admittedly the accused persons were strangers to P.Ws. 14 and 15. As borne out from the evidence of these two witnesses, the whole incident that took place before sunset continued for quite some time and there was sufficient time and opportunity for them to identify the accused persons. However, the grievance of the accused persons is that since the test identification parade was conducted after undue delay, the possibility of the witnesses P.Ws. 14 and 15 seeing them before such parade cannot be ruled out and therefore, the T.I. Parade report should be excluded from consideration. This submission does not hold good for the reason that as deposed to by the two victims P.Ws. 14 and 15, they remained in the forest for 11 days and only on 24.3.1991 they were rescued by the police and brought to the police station. Lower Court record reveals that the accused persons after arrest were produced before the Magistrate on 20.3.1991 and remanded to jail custody. On 22.3.1991 they were again produced from the jail and remanded till 4.4.1991. Lower Court record reveals that the accused persons after arrest were produced before the Magistrate on 20.3.1991 and remanded to jail custody. On 22.3.1991 they were again produced from the jail and remanded till 4.4.1991. While they were in custody, the T.I. Parade was conducted on 2.4.1991. Since P.Ws. 14 and 15, the two victims, remained inside the forest till 24.3.1991, they had the little chance to see the accused persons either on the date of arrest or on the date they were produced in the Court. Besides, the accused persons did not complain before any authority that they were shown to P.Ws. 14 and 15 at any time prior to their being put in T.I. Parade. Considering all these facts and circumstances, I would hold that there was no undue delay in holding T.I. Parade and P.Ws. 14 and 15 had no opportunity of seeing the accused persons before identifying them in the T.I. Parade. 13. In view of discussions made above, I find no reason to disturb the finding recorded by the trial Court. In the result, the appeal fails and the same is dismissed. Final Result : Dismissed