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2013 DIGILAW 65 (ORI)

Bijaya Kerketta v. State of Orissa

2013-03-12

B.K.MISRA

body2013
JUDGMENT All these three appeals are being disposed of by this common judgment since the appellants being aggrieved with the order of conviction and the sentences imposed on them for the offence under Section 376 (2)(g) of the Indian Penal Code (for short the I.P.C.) and also for the offence under Section 506 of the I.P.C. by the learned Assistant Sessions Judge-cum-Additional Chief Judicial Magistrate, Rourkela in S.T. Case No.290-4 of 2003-2004 have challenged the same by filing separate appeals. 2. The case of the prosecution is that when the husband of the victim lady Rajkumar Mahakuda was imprisoned for 8 years, the present victim took shelter in the house of her father-in-law Bhuban Mahakuda in village Bandhukadera. It is alleged that on 19-10-2002 the victim (P.W.2) on her way to her village stayed in the house of one Gurupada Das at Lathikata Railway Colony. It is alleged that on 20-10-2002 around 9.00 p.m. when P.W. 2 had gone to a shop for purchasing Khaini there she met the three appellants and of them appellant Abhimanyu who was related to the victim lady told her that she was wanted by her brother-in-law (Diara) Satrughna Mahakud (P.W.3) and told her to proceed to the house of the said Satrughna Mahakud. The victim lady believing the words of the appellant Abhimanyu proceeded to village Karlakhaman where her Diara Satrughna Mahakud was staying, being accompanied by the three appellants. It is further alleged that around 10 O Clock in the night in a lonely place of village Karlakha-man under a Mahula tree the appellants forcibly made the victim woman to lie on the ground facing upward and then one after the other sexually ravished her. When the victim woman shouted she was threatened to be murdered with a stone by the appellants. After fulfilling their lust when the appellants escaped from the spot, the victim returned back to the house with difficulties. On the next day morning the victim reported the matter to her Dedhasura Hapua Mahakud (P.W.1) and Diara Satrughna Mahakud (P.W. 3) and in their company the victim proceeded to Lathikata Police Station and lodged the report orally which was reduced into writing by P.W. 9, Madan Mohan Mallick the O.I.C. of the said Lathikata Police Station. On the next day morning the victim reported the matter to her Dedhasura Hapua Mahakud (P.W.1) and Diara Satrughna Mahakud (P.W. 3) and in their company the victim proceeded to Lathikata Police Station and lodged the report orally which was reduced into writing by P.W. 9, Madan Mohan Mallick the O.I.C. of the said Lathikata Police Station. On receipt of the F.I.R. Ext.10 police took up investigation and on completion of the investigation placed the charge-sheet against the appellants to face their trial. 3. During trial the plea of the appellants was that they have been falsely implicated in this case. 4. The prosecution in order to bring home the guilt of the appellants examined 9 witnesses in all and of them P.W. 2 is the victim. P.W. 4 was the medical officer who had examined the victim on police requisition, P.W. 7 is another medical officer who had medically examined the appellants, P.W. 9 was the I.O. P.W. 8 was a police constable and proved Ext.9 the seizure list in respect of the three sealed packets by the I.O. P.Ws. 5 & 6 were the two seizure witnesses. P.Ws. 1 and 3 are the Dedhasura and Diara of the victim respectively. The appellants declined to examine any witness in their defence. 5. The learned Assistant Sessions Judge, Rourkela has formulated two points for determination: (i) Whether on 20-10-2002 at about 10 p.m. at village Karlakhaman near a lonely place under a Mahua tree the accused persons committed gang rape on the victim lady one after the other, twice? (ii) Whether on the aforesaid date, time and place and accused persons committed criminal intimidation by threatening the victim lady with injury to her person with intent to cause alarm to the victim lady? 6. On analyzing the evidence on record the learned Assistant Sessions Judge believed the prosecution version and convicted each of the appellant for the offence under Section 376 (2)(g) of the I.P.C. as well as under Section 506 of the I.P.C. and passed the impugned sentences which are under challenge in these appeals. 7. 6. On analyzing the evidence on record the learned Assistant Sessions Judge believed the prosecution version and convicted each of the appellant for the offence under Section 376 (2)(g) of the I.P.C. as well as under Section 506 of the I.P.C. and passed the impugned sentences which are under challenge in these appeals. 7. Learned counsel appearing for the appellants in course of their argument contended that since the victim woman had immoral relationship with her brother-in-law and had conceived through him, only to escape from that stigma she had falsely entangled the appellants, but the learned Assistant Sessions Judge could not appreciate the evidence in its proper perspective and convicted the appellants who are innocent persons. Accordingly, it was urged by the learned counsel for the appellants that the appellants who are innocent and young persons should be acquitted. 8. Learned Additional Government Advocate Mr. D. K. Mishra in his argument contended that the evidence on record justifies the conviction and imposition of sentences on the appellants and therefore the trial Court rightly convicted the appellants and there is nothing on record to disturb the order of conviction and sentences imposed on the appellants and the appeal being devoid of merit should be dismissed. 9. Upon hearing learned counsel for both the sides, I have perused the evidence on record in detail. The victim P.W. 2 in her evidence deposed that on 20-10-2002 night at 9 p.m. when she had been to the shop of a Bihari at Lathikata to purchase Khaini there the accused persons came to her and told to accompany them to the house of her brother-in-law Satrughna as Satrughna had sent for her. P.W. 2 further deposed that believing the words of the accused persons she accompanied them to village Karlakhaman but on their way the accused persons forcibly raped her one after the other after threatening to kill her and escaped from the spot. P.W. 2 deposed that after the occurrence she returned back to the house and informed the matter orally at the Police Station and she had proved the F.I.R. which was written by the police officer to her detection. P.W. 2 deposed that after the occurrence she returned back to the house and informed the matter orally at the Police Station and she had proved the F.I.R. which was written by the police officer to her detection. Though P.W. 2 the victim was subjected to cross-examination by the defence but nothing could be elicited to disbelieve her evidence in her examination-in-chief that she was sexually ravished by the appellant on the night of 20-12-2002 by the accused persons, namely, the present appellants. The entire evidence of P.W.2 about the occurrence has totally remained unchallenged to. Virtually there was no cross-examination of P.W. 2 except giving bald sugestion that she was never raped by the accused persons and she has filed a false case. P.Ws. 1 and 3 the Dedhasura and Diara of the victim respectively have categorically stated that they were informed about the occurrence by the victim P.W. 2 and they had accompanied her to the Police Station on the next day of the occurrence for reporting the matter. P.W. 2 is the medical officer who had examined the victim and it is her evidence that on examining the private part, she opined that recent sexual intercourse could not be ruled out. The doctor who had examined the accused persons, namely P.W. 7 has specially deposed that on examining the private part of the appellants he opined that they had sexual intercourse within 24 hours and he had proved the medical certificate Exts. 7 and 8 P.W. 9 is the I. O. who is a post occurrence witness. P.Ws. 5 & 6 are the two seizure witnesses so also P.W. 8 and they were not witnesses to the occurrence. Thus the evidence of P.W. 2 that she was ravished by the two appellants gets overwhelming corroboration from the medical evidence i.e. from the evidence of P.Ws.4 and 7. When the evidence of P.W. 2 about the occurrence has gone unchallenged I have no hesitation in my mind to arrive at the irresistible conclusion that the learned Asst. Sessions Judge has rightly believed the evidence of P.W. 2 and his conclusions are based on legal evidence on record and such finding of facts cannot be disturbed as there is absolutely no material on record to disbelieve that. 10. Sessions Judge has rightly believed the evidence of P.W. 2 and his conclusions are based on legal evidence on record and such finding of facts cannot be disturbed as there is absolutely no material on record to disbelieve that. 10. In the result, the three appeals having no merit at all stand dismissed and the impugned order of conviction and sentences imposed on each of the appellants are hereby confirmed. Appeals dismissed.