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2006 DIGILAW 770 (ORI)

Nabin Chandra Behera v. State of Orissa

2006-11-08

A.K.PARICHHA

body2006
JUDGMENT A. K. PARICHHA, J. : This appeal is directed against judg¬ment passed by the learned Sessions Judge, Balasore-Bhadrak in Sessions Trial No.206 of 1997 wherein the appellant was convicted and sentenced for offence u/s 376 (1) of the I.P.C. 2. Prosecution case shortly stated is that on 8.5.1997 at about 8 P.M. in the night when the victim lady was sitting on the front verandah of her house at village-Daldali, the appellant taking advantage of the lonely surrounding suddenly pounced upon the victim lady, gagged her mouth and committed sexual inter¬course with her forcibly. Hearing the groaning sound of the victim lady her brother-in-law P.W.5 came to the spot, saw the incident and caught hold of the appellant. Then some other per¬sons of the village arrived, detained the appellant and called the police constable. The victim lady then lodged report basing on which investigation was conducted and the appellant was charge sheeted u/s. 376 (1), IPC. The appellant took the plea of denial and false implication due to his ill feeling with the husband of the victim lady since the Grama Panchayat election. 3. Prosecution examined 8 witnesses and proved medical reports, forwarding report, Chemical Examiner’s report, spot map, F.I.R. and seizure lists which were marked as Exts. 1 to 9. The appellant did not produce any witness or document. 4. Considering the evidence on record learned Sessions Judge convicted the appellant u/s. 376 (1) of the I.P.C. and sentenced him to under go R.I. for 7 years and also to pay a fine of Rs.12,000/- in default to undergo S.I. for a period of six months. The appellant has challenged the said conviction and sentence in this appeal. 5. Mr. S. K. Tripathy, appearing on behalf of Mr. D. P. Dhal, learned counsel for the appellant submits that the medical evidence and the report of the chemical examiner do not support the prosecution allegation and for that reason the allegation of rape should not have been believed. He further submits that lack of injury on the person of the victim as well as the accused was suggestive of the consent of the victim lady, but this plea was unreasonably discarded by the trial Court. Learned counsel further contends that there are lot of discrepancies in the evi¬dence of the witnesses and on that count also the appellant was entitled to benefit of doubt. 6. Learned counsel further contends that there are lot of discrepancies in the evi¬dence of the witnesses and on that count also the appellant was entitled to benefit of doubt. 6. Learned Standing Counsel, on the other hand, submits that the evidence of the victim lady-P.W.4 was sincerely corrobo¬rated by eye witness P.W.5, post occurrence witnesses P.Ws 1 & 7, evidence of the doctors P.Ws 2 & 3 and so there was good reason convicting the appellant for the offence of rape. Mr. Mishra thoroughly supports the impugned judgment and the reasoning given therein. 7. P.W.4 is the victim lady. She clearly stated that at about 8 P.M. in the night of occurrence while her husband was absent from the house and she was sitting alone the appellant came from her back side, caught hold of her, laid her on the ground and gagging her mouth with her saree and committed sexual intercourse with her by force. She stated that she resisted and groaned and hearing her groaning sound her bother-in-law P.W.5 came and separated the appellant from her by using considerable force, after which she raised hulla and hearing such hulla some neighbours and her husband came. She further states that she told about incident to her husband and went with her husband to the Police Out-Post where F.I.R. Ext.6 was lodged. P.W.5 thoroughly corroborated the statement of P.W.4. P.W.7 said that hearing the hulla he came to the house of the victim and found P.W.5 and Sridhar holding the appellant and the victim crying. He stated that after hearing the incident he and some others went to the Police Out-Post, but could not find the A.S.I. there, so they met the Constable and brought him to the spot. He further stated that he reduced the report of P.W.4 into writing, read over and ex¬plained the same to her and admitting the contents to be true P.W.4 put her L.T.I. on the report. P.W.7 identified that report as Ext.6. Constable- P.W.1 supported the version of P.W.7 and added that he guarded the appellant in the night and brought him and P.W.4- victim to Nilagiri Police Station in the following morning. Barring some minor discrepancies, the evidence of the above named witnesses appear unblemish. 8. P.W.7 identified that report as Ext.6. Constable- P.W.1 supported the version of P.W.7 and added that he guarded the appellant in the night and brought him and P.W.4- victim to Nilagiri Police Station in the following morning. Barring some minor discrepancies, the evidence of the above named witnesses appear unblemish. 8. I.O. P.W.8 said that after receiving the report Ext.6 he took up investigation during the course of which he recorded the statements of the witnesses, got the victim lady and the appellant examined by doctor, seized the wearing apparels and Kantha and forwarded the same for chemical and serological exami¬nation. The Doctor, P.W.2 said that on 9.5.1997 on police requi¬sition he examined the appellant and found him capable of per¬forming sexual intercourse. Doctor P.W.3, who examined P.W.5 stated that he found three abrasions on his body. 9. Basing on the statement of the doctor that there was no injury or sign of recent sexual intercourse and the report of the chemical examiner that there was no blood or semen stain on the clothes of the victim or accused, it is argued that the allega¬tion of rape is improbable. It has been clarified in the cases of Adam Tirky v. State of Orissa, 1993 (I) OLR 265; Biswanath Hari¬jan v. State of Orissa (1996) 11 OCR 608; and Rabinarayan Das v. State (1991) 4 OCR 568 that absence of injury on the private part of the victim or absence of semen stain, spermatozoa do not by itself negative the evidence of rape. Law is settled that absence of injury or stain on the person of the victim and accused does not negative the possibility of rape as injury does not necessar¬ily occur in every case of rape and slightest penetration without ejaculation also constitute rape. Moreover, the evidence of the prosecutrix and eye witnesses if found reliable has to be accept¬ed even though the medical or technical evidence remain incon¬sistent with their statement as because the evidence and reports of experts are only opinion and cannot out weigh the direct reliable evidence. All these aspects have been clearly dealt with by the learned trial Court in the impugned judgment. 10. Learned counsel for the appellant submits that absence of injury on the person of the appellant and victim lady is itself suggestive of consent of the victim lady. All these aspects have been clearly dealt with by the learned trial Court in the impugned judgment. 10. Learned counsel for the appellant submits that absence of injury on the person of the appellant and victim lady is itself suggestive of consent of the victim lady. According to him, had there been resistance then there would have been some injury or mark of violence on the persons of the victim lady and the appellant. Reliance is placed on the cases of State of Orissa v. Pradip Kumar Gour and another, 1979 ILR Cuttack Series 674 and Kubera Mohant v. State, 33 (1991) OJD 200 (Criminal). Resistance does not always mean violent resistance, as on most occasions the victim lady is over powered by the brutal strength of the rapist. In the present case, it is not the evidence of the victim lady that she resisted violently or that there was physical struggle to the extent of occurrence of injury. On the other hand, she stated that the appellant caught hold of her, laid her on the ground, gagged her mouth and committed sexual intercourse and that she only groaned. In such situation, injury might not occur. So absence of injury cannot raise a presumption that the victim lady had consent. The ratios of the reported cases thus do not apply to the present case as the factual scenarios in those cases are materially different from the present case. More over, there is no evidence on record that there was ever any closeness or communication between the appellant and the victim lady. So, there was no reason for a married lady with a child to willingly participate in illegal sexual act with a stranger at her own residence. Learned trial Court was thus not at all unreasonable in it’s conclusion that the alleged sexual act was committed against the will of the victim lady. 11. After a thorough re-analysis of the evidence and con¬cerned legal position, I am of the considered view that the conclusions of the trial Court are in accordance with the materi¬als on record and the settled principles of law. Therefore, the order of conviction and quantum of jail sentence recorded by the trial Court are confirmed. But considering the social and econom¬ic status of the parties the fine amount is reduced to Rs.5000/-. Therefore, the order of conviction and quantum of jail sentence recorded by the trial Court are confirmed. But considering the social and econom¬ic status of the parties the fine amount is reduced to Rs.5000/-. In default of payment of the fine, the appellant would under go R.I. for a period of 3 months. 12. With the above noted modification in fine sentence, the appeal is dismissed. Appeal dismissed.