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2014 DIGILAW 268 (ORI)

Guna @ Rashbihari Singh v. State of Orissa

2014-04-22

SATRUGHANA PUJAHARI

body2014
JUDGMENT S. PUJAHARI, J. - The judgment and order of conviction and the sentence passed by the learned Additional Sessions Judge, Mayurbhanj, Baripada in S.T.No. 19/118 of 2001 holding the appellant guilty of a charge under Section 376(2)(g) of the IPC and sentencing him to undergo R. I. for 10 (ten) years and to pay fine of Rs. 2,000/- (rupees two thousand) and in default of payment of fine, to undergo R.I. for 6 (six) months more, have been impugned in this appeal by the appellant from the jail. 2. The prosecution came to the trial Court with a case that on 30.11,2000 at about 9.00 p, M. when the victim (P. W. 10) and her blind husband (P. W. 1) were returning to their home in village Daddor after purchasing rice from Poda Astia Market, near Daddor High School, the present appellant along with one Pradeep Singh (absconding accused) came from their backside and caught hold of the victim and her husband. While the absconding accused-Pradeep Sigh caught hold of the husband of the victim, the present appellant dragged the victim to a nearby agricultural field, made her lie flat on the ground and lifting her clothes up to the waist level, committed rape on her, After having the sexual intercourse, he went near her husband and caught hold of him and other accused Pradeep Singh came to her and committed rape on her. Then, both of them fled away from the place. PW5 - Suni Singh and P.W.6 - Ludri Singh, co-villagers of the victim, had arrived there and they heard the victim to be crying. They went near the victim, who narrated the incident to them, which the said witnesses narrated before the villagers, such as, P.W.9-Baidyanath Singh and others. Being advised by the local Sarpanch, the matter was reported in the Baripada Town Police station at 3.00 P.M. on the following day by the victim orally, which was reduced into writing vide Exhibit-4 and police had registered the case and investigated. Police found substance in the report of the victim and, as such, filed Final Form disclosing appellant and his accomplice - Pradeep Singh, prima facie committed the offence under Section 376(2)(g) of IPC. 3. Relying on such case of prosecution, which was supported by materials collected during investigation, charge was framed against the appellant for the aforesaid offence. Police found substance in the report of the victim and, as such, filed Final Form disclosing appellant and his accomplice - Pradeep Singh, prima facie committed the offence under Section 376(2)(g) of IPC. 3. Relying on such case of prosecution, which was supported by materials collected during investigation, charge was framed against the appellant for the aforesaid offence. The appellant-having denied the charge, was asked to face the trial. On conclusion of the trial, the learned Additional Sessions Judge, basically relying on the version of the victim (P.W.10) and also the evidence of her husband (P.W.1), repelled the appellant plea of denial and false implication and returned the judgment of conviction and sentence, as stated earlier. 4. Learned counsel appearing for the appellant has assailed the finding of the learned Additional Sessions Judge that the appellant along with the absconding accused committed rape on the victim and, as such, guilty of an offence under Section 376(2)(g) of the IPC. According to him, since there is no credible evidence on record, inasmuch as the version of the victim is inherently improbable and the same was also not in conformity with the version of her husband and not supported by the independent witnesses, who arrived at the spot, the trial Court solely relying on the evidence of the victim should not have held the appellant guilty of a charge under Section 376(2)(g) of the IPC. Therefore, the judgment and order of conviction and sentence are liable to be set aside and the appellant is entitled to an order of acquittal, has also been submitted by the learned counsel for the appellant. 5. In response, drawing the notice of the Court to the evidence of the victim that she was ravished by the appellant and another against her will and without her consent and the version of her husband corroborating the same, it has been submitted by the learned counsel for the State that there being no apparent reasons of the victim implicating the appellant in this case falsely, it is fallacious to say that there is no credible evidence on record to hold the appellant guilty of the charge and the trial Court erred in convicting him. The evidence of the victim being clear, cogent and confidence inspiring and it being well settled in law that solely relying on the version of the victim, a conviction in a case of rape can be recorded, this Jail Criminal Appeal filed, therefore, is devoid of merit and liable to be dismissed, has also been submitted by the learned counsel for the State. 6. Before appreciating the contention raised by the parties, it would be apposite to have a look to the statutory presumption available in favour of the prosecution with regard to the evidence of the victim of a gang rape and also the law laid down by the Hon'ble Apex Court with regard to appreciation of the evidence of a victim of rape. Section 114-A of the Evidence Act, which reads as thus: “114-A. Presumption as to absence of consent in certain prosecutions for rape - In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of Subsection (2) of Section 376 of the Indian Penal Code (45 of 1860), " where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent." 7. The Hon'ble Apex Court in catena of decisions have held that in a case of rape before acting on the evidence of a victim the Court should not seek for independent corroboration, inasmuch as the victim is not an accomplice but an injured. The Hon'ble Apex Court held that corroboration to the version of a victim is not a sine qua non in a rape case for recording a conviction. The aforesaid position of law has been settled in a number of cases by the Hon'ble Apex Court, few of such cases which have been taken note by the trial Court such as Goutam Singh v. State of Haryana, 1973 Crl. Law Journal 179, Rameswara v. State of Rajasthan, AIR 1952 SC 54 and Madho Singh v. State of U.P., AIR 1973 SC 467 . 8. Law Journal 179, Rameswara v. State of Rajasthan, AIR 1952 SC 54 and Madho Singh v. State of U.P., AIR 1973 SC 467 . 8. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, reported in AIR 1983 SC 73, their Lordships in the Hon'ble Apex Court have been pleased to hold that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of a girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society"..... Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile." At paragraph-11 of the said decision, it has been held as follows: "11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hang-over). It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hang-over). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. On when the 'probabilities factor' is found to be out of tune". 9. Simultaneously, the Hon'ble Apex Court in some cases have held that the version of the victim cannot be accepted as a gospel truth. The same is required to be scrutinized and from the version of the victim if it is found that what she stated is nothing but the unalloyed truth, then there is no impediment on the part of Court to act on such version of the victim without seeking for corroboration from any independent source. In the case of Raju and others v. State of Madhya Pradesh, reported in (2008) 15 SCC 133, the Hon'ble Apex Court while dealing with the presumption available under Section 114-A of the Evidence Act in a case of gang rare held that the presumption under Section 114-A is extremely restricted in its applicability and as far as the allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as a gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. 10. The evidence on record, particularly of the victim, in the case in hand is required to be addressed in the light of the aforesaid law laid down by the Hon'ble Apex Court. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. 10. The evidence on record, particularly of the victim, in the case in hand is required to be addressed in the light of the aforesaid law laid down by the Hon'ble Apex Court. From the evidence, it is emerged that the husband of the victim was blind and the victim was coming with her husband from the market. The incident said to have occurred in the night at an audible place which was at a distance from the house of the victim in the village, as revealed from the evidence of the victim (P.W.10). The evidence of the victim discloses that her husband was caught hold by the absconding accused and the victim was dragged to a nearby field where the appellant made her lie on the ground, removed her clothes, made her completely naked and committed forcible sexual intercourse on her. Thereafter, the absconding accused had forcible sexual intercourse with her and her husband was then restrained by the appellant. It is the version of the victim that she had physically protested and sustained bodily injuries and also caused injury to the appellant. The same has not been supported by the doctor, P.W.11 and P.W.3, who examined the victim and the appellant respectively two days after the occurrence inasmuch as no injury was found by them on their person. Her version that she could not raise hullah as her mouth was gagged, appears to be contrary to the version of her husband that she shouted. The appellant or his accomplice had not extended any threat to the husband of the victim (P.W.1) when they detained him, as revealed from his (P.W.1) evidence. In such a situation, it was quite but natural on his part to ask the identity of the person who had detained him and what for he had been detained as he was a blind and also ask for where about of his wife or shout for his wife, who had accompanied him, especially when the culprits had not extended any threat to him or if his version that his wife shouted is accepted, to raise hullah for help. But, the same appears to have not been done as it reveals from his (P.W.1) evidence. P.W.1 deposes that the P.Ws. But, the same appears to have not been done as it reveals from his (P.W.1) evidence. P.W.1 deposes that the P.Ws. 5 and 6 arrived at the spot and the appellant and his accomplice fled away. It is also the evidence of the victim that P.W.5 and P.W.6 arrived there, she narrated the incident before them and the accused persons also said to have fled away. No doubt, P.Ws. 5 and 6 did not support the case of the prosecution. But, their presence on the spot at the time of occurrence is well proved from the evidence of the victim and her husband. The evidence of the victim as such is not in conformity with that of her husband in material point. The conduct of the husband seems to be unnatural in the facts and circumstances, as stated earlier. The version of the victim appears to be full of embellishment and not corroborated by medical evidence though according to her version, the same is supposed to come out. P.Ws. 5 and 6 arrived at the spot at the time of occurrence. Therefore, the probability factors militate against her version of forcible sexual intercourse. Rather it leans in favour of a sexual intercourse on consent and the possibility of allegations of forcible sexual intercourse to have been made being guided by the instinct self preservation due to the arrival of P.Ws. 5 and 6 on the spot at the time of occurrence, is not ruled out. 11. Thus, on reappraisal of the evidence on record particularly the evidence of the victim, this Court finds that the same is not credible. Hence, it is not safe to rely on her evidence of a sexual intercourse without consent, in spite of the presumption under Section 114-A of the Indian Evidence Act, inasmuch as the evidence of the victim of absence of consent, appears to be incredible. The trial Court, therefore, erred in recording a judgment of conviction and sentence against the appellant as stated earlier. 12. Resultantly, this Jail criminal appeal stands allowed. The judgment and order of conviction and the sentence passed, are set aside and the appellant is acquitted of the charge. If the appellant is in jail, he be released forthwith if not wanted in any other case. Appeal allowed.