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2006 DIGILAW 760 (ORI)

Saheba Luha v. State of Orissa

2006-11-06

J.P.MISHRA

body2006
JUDGMENT J. P. MISHRA, J. — This is another saga of abuse of female class in our male dominated society. The allegations of the prosecutrix were under scrutiny by the learned Additional Ses¬sions Judge, Sambalpur in S.T. No.243/1 of 1997 which concluded in convicting and sentencing the accused-appellants to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.1000/- (Rupees one thousand) each under Section 376(2)(g), I.P.C. and in default of payment of fine, to undergo rigorous imprisonment for three months more. 2. The facts of the case, in brief, are that on 14.4.1997 (Monday), the victim and two daughters of Krushna Chand, namely, Kausla and Kamala, went to village Bhejitikra to enjoy Hanuman Jatra. They stayed in the house of Mahendra Podh, who is no other than the brother-in-law of Kausla, located at Musabenipada in village Bhjejitikra. On Tuesday night while she was sleeping in the thrashing floor (Khala) of the elder father of Mahendra Podh, the appellants lifted her physically to a house and committed rape on her under threat of her life. The appellants Jagdish Bhoi and Saheba Luha turnwise ravished her and as the accused persons heard some knocking sound, they left the place so also the victim escaped by scaling over the wall of the said house and narrated the incident to Kalyani, Kamalini and Hari.She also disclosed the matter next day to her parents on return to their village Gola¬bandha and thereafter on 17.4.1997 at about 7.00 P.M. the victim lodged the report mentioning the names of appellants at Gunderpur Out Post before the Sub-Inspector of Dhama Police Station. On investigation, the police submitted charge-sheet and trial con¬cluded as indicated above. 3. The learned Court below believed the version of the prosecutrix (P.W.4) and the doctor (P.W.1) corroborated by the post-occurrence witnesses (P.Ws 2 and 3) and finally convicted the accused-appellants. 4. The learned counsel for the appellants has mainly made an effort to assail the judgment of the learned lower Court only on the ground of identity. 3. The learned Court below believed the version of the prosecutrix (P.W.4) and the doctor (P.W.1) corroborated by the post-occurrence witnesses (P.Ws 2 and 3) and finally convicted the accused-appellants. 4. The learned counsel for the appellants has mainly made an effort to assail the judgment of the learned lower Court only on the ground of identity. According to the learned counsel, the victim could not have identified the accused persons and the learned Court below committed an error in convicting them in absence of a test identification parade relying on the decisions in Dillip and another v. State of M.P., 2001 (II) OLR (SC) 703, Prahlad Singh v. State of Madhya Pradesh, AIR 1997 SC 3442 , Pyare Lal v. State of U.P., AIR 1987 SC 852 . On the other hand, the learned Additional Standing Counsel has supported the judgment of the learned Court below. 5. The aforesaid decisions relied on by the learned coun¬sel for the appellants have got absolutely no relevance to the facts and circumstances of the present case. In the case of Dillip and another v. State of M.P. (supra), the Apex Court delivered the testimony of the prosecutrix as it found material contradiction in the version of the victim’s aunt and herself and there was contradiction also in the medical report and the foren¬sic report. Without burdening my judgment with more details of the other two decisions cited by the learned counsel, I would like to say that they have got no relevance for the purpose in the pre¬sent case in connection with identity of the accused persons by the victim. According to the version of P.W.4 (victim), as they had no sleep during the night of Monday (14.4.1997), they slept deeply in the Bari of the relation of accused Saheba and at a distance one old woman was sleeping and in the same night, the Jatra was also in progress in the said village.She has mentioned the names of accused Saheba and Jagdish in her evidence. She has also further testified that one Dibiri (a Kerosene lamp without glass used by villagers) was there in the room to which she was lifted by the accused persons. She was raped by the appellants who threatened here with life. As the accused persons left her hearing some knocking sound, she could escape and narrate the incident before Mahendra Podh and Hari. She was raped by the appellants who threatened here with life. As the accused persons left her hearing some knocking sound, she could escape and narrate the incident before Mahendra Podh and Hari. During her cross-examination,it has been brought out by the appellants in para¬graph 6 of the deposition in detail regarding the occurrence. She has mentioned the names of accused Saheba and Jagdish implicating them in the commission of the barbaric act. She has further de¬posed that she could know the names of the accused persons while they were calling each other at the time of the occurrence. The presence of Dibiri was not shattered in any manner. Here, I may mention that ladies have got uncanny sense of identification of their own ornaments. Likewise, villagers are very much capable of identifying of their own ornaments. Likewise, villagers are very much capable of identifying a person in dim light of a Dibiri as they are acquainted with low light. The evidence of the doctor (P.W.1) and Ext.2 reveal that the victim sustained injuries and abrasions on her left shoulder, left buttocks, left sacroiliac joint area so also on the back of right elbow joint. Further, injuries were found on labia minora. Specially, the doctor found recent tear or rupture of hymen present at 5 O’ clock position and 7 O’ clock position bleeding on little pressure while examin¬ing the victim on 18.4.1997. Further, P.W.1 opined the girl to be aged 14 years on the basis of the ossification report. The afore¬said version of P.W.4 and the testimony of the doctor in regard to the injuries find sufficient corroboration from the evidence of P.Ws.2 and 3 who are the two girls to whom the victim narrated the occurrence naming both the accused persons who committed rape on her on the same night.These are the two girls, namely, Kalyani and Kamalini (P.Ws.2 and 3 respectively) who were also sleeping with her (victim). Therefore, there is absolutely no chance of mistaken identity or no identity as suggested by the learned counsel for the appellants. The same has been vividly discussed in paragraph 13 of the judgment of the learned lower Court with which I fully concur. 6. In the result, the Criminal Appeal is devoid of merit and is, therefore, dismissed. Criminal Appeal dismissed.