Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 102 (ORI)

Kaya alias Sipai Naik v. State of Orissa

2004-02-20

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — The petitioner having been found guilty for commission of offence under Section 376 of the Penal Code and sentenced to undergo imprisonment by both the Courts below has preferred this revision. The petitioner has been convicted under Section 376 of the Penal Code for committing rape on one Smt. Chuguri alias Sonia Naik (p.w.1) and has been sentenced to under¬go R.I. for seven years. 2. The case of the prosecution is that on 31.12.1998 while the victim was digging soil in the outskirt of the village, the petitioner who was hiding in a nearby ditch forcibly dragged her to the ditch and committed rape on her. On the date of occurrence the husband of the victim was absent and he had gone to Paradeep. Therefore, the victim reported about the incident to her uncle-in-law and mother-in-law who advised her to wait till arrival of her husband. After the husband of the victim came back from Paradeep, the matter was reported to him and a village Panch was convened and since no fruitful result was achieved, on 8.1.1999 the victim along with her husband went to the Police Station and reported the incident. Accordingly, the F.I.R. was registered for commission of offence under Section 376 of the Penal Code and after completion of investigation, charge sheet was submitted for commission of the said offence. The plea of the petitioner is complete denial of the occurrence and it is specifically pleaded by the petitioner that due to previous dispute, the case has been foisted falsely. Relying upon the evidence of P.W.1 both the Courts below convict¬ed the petitioner for commission of offence under Section 376 of the Penal Code. 3. Shri Patri, learned counsel appearing for the petitioner submitted that the version of the victim in material particulars has not been corroborated by other witnesses examined by the prosecution and the medical evidence also negatived the claim of the victim that she had been subjected to sexual assault by the petitioner. It was further submitted that merely on the statement of the victim that she was subjected to sexual assault by the petitioner, no conviction would lie and there should have been some corroboration to such a statement of the victim. It was further submitted that merely on the statement of the victim that she was subjected to sexual assault by the petitioner, no conviction would lie and there should have been some corroboration to such a statement of the victim. It was also contended by Shri Patri, learned counsel for the petitioner that the version of the victim if looked into carefully, it would indicate a case of consent and the victim being a major married woman, the offence under Section 376 I.P.C. is not attracted. The learned Additional Standing Counsel on the other hand, submitted that in a case of rape there is no need to corroborate the statement of the victim and if the version of the victim is accepted as truthful, conviction would lie on such statement and, therefore, both the Courts were justified in finding the petitioner guilty for commission of the offence under Section 376 I.P.C. The learned Additional Standing Counsel further submitted that in a revision this Court is not required to reappreciate the evidence unless gross illegality has been committed by the Courts below and finding of both the Courts below being concurrent finding of facts, the revisional Court should refrain from interfering with the finding of both the Courts below. There is no dispute that in a revision the juris¬diction of this Court is limited and it cannot reappreciate the evidence. However, where the Court is of the view that the find¬ings arrived at by the Courts below are on the basis of no evi¬dence or on such evidence that no Court can come to such a con¬clusion, it can always interfere in its revisional jurisdiction. 4. In order to appreciate the submissions of the learned counsel appearing for the petitioner, it is necessary to look into the evidence adduced before the trial Court. P.W.1 is the victim. She in her deposition has stated that on the date of occurrence while she was working in the field the petitioner came and caught hold of her and dragged her to a ditch nearby, laid her down there and committed rape. After committing rape the petitioner went away from the spot. She has further stated in her deposition that she disclosed the incident to her uncle as her husband was absent and her uncle advised to wait till arrival of her husband. After committing rape the petitioner went away from the spot. She has further stated in her deposition that she disclosed the incident to her uncle as her husband was absent and her uncle advised to wait till arrival of her husband. Near about ten days after the incident, her hus¬band came back home and he was told about the incident and there¬after, she along with her husband went to the Police Station for lodging the F.I.R. The husband of the victim has been examined as P.W.2. In his deposition he has stated that on the date of occur¬rence he was at Paradeep and he returned after eight days. After coming back home neither he was told by P.W.1 about the occur¬rence nor he accompanied P.W.1 to Police Station for lodging the F.I.R. P.W.4 is the mother-in-law of the victim and she has denied any knowledge about the occurrence and has specifically stated that P.W.1 never stated anything to her. All the witnesses examined on behalf of the prosecution except the R.I. and I.O. have turned hostile. Therefore, the statement of the victim that immediately after the occurrence she had reported the matter before her uncle and husband has no corroboration. On the other hand, both of them have specifically denied such statement of the victim. In the F.I.R. the victim has alleged that the incident was also reported to her mother-in-law, but such statement of the victim has been denied by the mother-in-law who has been examined as P.W.4. Now coming to the question of commission of rape, it is necessary to look into the allegations made by the victim as well an the medical report. Though the victim has stated in her exami¬nation-in-chief that she was subjected to rape by the petitioner, nothing has been found from the evidence of the doctor, P.W.15, who examined her. The evidence of P.W.15 does not indicate any material to support the allegation of rape. On the other hand, P.W.1, the victim herself has stated in cross-examination that there was no talk prior to the incident with the accused and the accused caught hold of her in the field when she was in a bending position. She has further stated that the accused laid her down facing upward, opened his pant while she was lying down. She has further stated that the accused laid her down facing upward, opened his pant while she was lying down. At that time her hands were flat on the ground and at the time of commis¬sion of rape she had kept her legs separated. In view of such evidence of the prosecutrix herself, it is clear that she had not offered any resistance at all at the time of incident. Therefore, reading of the evidence of the prosecutrix along with the medical evidence and the evidence adduced on behalf of the prosecution through other witness, it is clear that either the incident never happened or if at all it happened according to the case of the prosecutrix, the same was with the consent of the prosecutrix. In this connection, reference may be made to a decision of the Apex Court in the case of Dilip and another v. State of M.P. reported in 2001 Criminal Law Journal 4721. The facts of the reported case are more or less similar to the present case. In the reported case a gang rape was alleged to have been committed in the house of the prosecutrix situated in a populated village by the side of the main road where people were moving on account of Holi festi¬val. The prosecutrix alleged to have raised hue and cry to the extent she could and yet none was attracted to the place of the incident. Prosecutrix said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story was not corroborated by the medical evidence. Her own maternal aunt to whom the story of sexual assault is stated to have been narrated by the prosecutrix gave a version which did not tally with the version of the prosecutrix as given in the Court. Under such circumstances, the Apex Court held that truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her cannot be accepted. 5. In the present case, there is absolutely no corrobora¬tion to any of the allegations made by the prosecutrix and the statements made in the cross-examination rather indicate that she offered no resistance at the time of the alleged occurrence and rather had consented for the same. 5. In the present case, there is absolutely no corrobora¬tion to any of the allegations made by the prosecutrix and the statements made in the cross-examination rather indicate that she offered no resistance at the time of the alleged occurrence and rather had consented for the same. In view of such nature of evidence available on record, both the Courts below were not justified in convicting the petitioner for commission of the offence under Section 376 of the Penal Code. 6. I, therefore, allow the revision, set aside both the orders of the Courts below. Since the prayer of the petitioner for bail was rejected on 10.10.2002 and the petitioner is still in custody, it is directed that he be released forthwith, if his detention is no longer required in connection with any other case. Revision allowed.