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2014 DIGILAW 354 (ORI)

MATU SITARI v. STATE OF ORISSA

2014-06-17

D.DASH

body2014
JUDGMENT : D. Dash, J. - The appellant from inside the jail has challenged the order of conviction and sentence passed by learned Special Judge, Keonjhar convicting him for offence under Section 376(2)(f) of IPC along with Section 3(2)(v) of the SC and ST (P.A.) Act and sentencing him to undergo rigorous imprisonment for a period of 10 years with payment of fine of Rs. 10,000/- in default to undergo rigorous imprisonment of one month. 2. Prosecution case is the following: The informant and his wife who are members of scheduled tribe, used to earn their livelihood and maintain their family by working as Coolies. For the said purpose, while going to work, they use to leave their children under the care and custody of the wife of the appellant, a member not belonging to scheduled tribe and who are their neighbours. It is alleged that on 31.04.2004, when the informant and his wife as usual had been to work, the appellant took the victim girl to his house and raped her. The informant and his wife returned home from their work place and found trace of blood on the lower limbs of their daughter, the victim. Then he also heard from one Mangal Babanga that the appellant was seen by him to have been lying naked in a drunken state, when the victim girl was coming out of his house. The said incident being reported to the police, necessary case was registered and investigation commenced. On completion of the investigation, the appellant was placed for trial for the above offences. 3. During trial, the prosecution examined nine witnesses, when the defence examined one. The appellant took the plea of complete denial and false implication on account of previous enmity with that Mangal Babanga who is said to have foisted the case against the appellant. 4. The trial Court on analysis of evidence and upon their examination arrived at a finding that the appellant being not a member of schedule caste or schedule tribe community raped the victim a member of Scheduled tribe having taken advantage of being in a position to dominate the will. Accordingly, conviction having been recorded for the offences, the appellant has been sentenced as stated above. Accordingly, conviction having been recorded for the offences, the appellant has been sentenced as stated above. The circumstances taken as to form a complete chain are (i) victim came out of the house of appellant with blood oozing out from private parts; (ii) the doctor finding injuries on victim's private part; and (iii) lungi of appellant was having mark of blood of same group of that of victim. 5. Learned counsel for the appellant submits that on the basis of the evidence let in by the prosecution, the trial Court ought not to have fastened guilt upon the appellant for the offence under Section 376(2)(f) IPC and Section 3 (2)(v) of the SC and ST (PA) Act. According to him, the prosecution case is to be viewed with suspicion in the absence of any step whatsoever being taken to examine the victim. According to him, even at that age of the victim, the prosecution was not automatically relieved of the obligation of proof of the factum of rape through direct evidence. It is also his submission that the case of the prosecution in hand ought to have to have been held to be improbable looking at the age of the victim and simultaneously the act as alleged against the appellant. He also submits that circumstances as considered are not sufficient to form a complete chain consistent only with the hypothesis of the guilt of accused. So the conviction ought not to have been based on said circumstantial evidence which are too weak and do not unerringly point at the guilt of appellant. Therefore, he contents that it is a fit case for setting aside the finding as regards complicity of the appellant and the judgment of conviction of the above offences as well as the order of sentence. So, he urges that the judgment of conviction and order of sentence are liable to be set aside. Learned counsel for the State vehemently refutes the above submission. He contents that the trial Court having made thorough and critical analysis of evidence on record has based the finding of guilt against the appellant by pointing out the proved circumstances which form a complete chain wherefrom there emanates the inescapable conclusion of guilt of the appellant excluding any hypothesis other than the guilt of the appellant. He contents that the trial Court having made thorough and critical analysis of evidence on record has based the finding of guilt against the appellant by pointing out the proved circumstances which form a complete chain wherefrom there emanates the inescapable conclusion of guilt of the appellant excluding any hypothesis other than the guilt of the appellant. It is also his submission that the victim girl at the time of trial was aged about 3 years and so in that situation, the prosecution was not under the obligation to examine her when admittedly at that age of her, examination in Court would not have been of any help to the prosecution case and also to the defence and it would have been an exercise in futility. Therefore, he contends that the appeal bears no merit. 6. Keeping aforesaid submission in mind, let's proceed to analyze the evidence of prosecution witnesses to examine the sustainability of the finding of the trial Court as regards the authorship of the appellant in commission of the above offences for which he has been convicted. The child aged about 3 to 4 years who is the victim in this case has not been examined as her evidence could not be secured during trial. So there remains no direct evidence to support the case of the prosecution. The case is based on circumstantial evidence. 7. Law is well settled that a conviction can be based upon circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused : (Ref. The circumstances should be a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused : (Ref. in Sharad Birdhichand Sarda v. State of Maharashtra -, AIR 1984 SC 1622 ; Krishnam v. State represented by Inspector of Police -, (2008) 15 SCC 430 ; Wakkar and another v. State of U.P., (2011) 3 SCC 306 ; Sk. Yusud v. State of W.B.;, AIR 2011 SC 2283 ). It has also been settled in case of Basudev Kandi v. State (1998) 14 OCR 322 that in the absence of victim being examined in the Court, the question of culpability of the accused can be based on circumstantial evidence available on record. Furthermore, the position in this regard has also been settled in case of State of Karnataka v. Mahabaleswar 1992 (2) Crimes SC 654 that merely because the victim being dead and thus not examined in the Court the same is no ground to acquit the accused. 8. Adverting now to the exercise of analysis of evidence, it is seen that the star witnesses for the prosecution are P.W. 1,2, and 3. The parents of the victim are P.W.1 and 3. Both of them admittedly were not present a the time of occurrence and on their return, it is stated by them that they noticed some blood marks on the lower limbs of the victim. During trial these two witnesses except stating above, stated to have told nothing more to police. They have declared hostile and the prosecution has been allowed to cross-examine them. On carefully going through the deposition of P.W.1 and 3, I find that prosecution other than drawing attention of these witnesses to their previous statements has not been able to elicit anything more in order to render support to the case of the prosecution in any manner. P.W.1 has stated that victim had told nothing and he too to have not also stated anything there at the police station. He has further stated that in the FIR he has given his LTI, but that is also being not aware of its contents. Similar is the state of affair in respect of evidence of P.W.3. 9. P.W.1 has stated that victim had told nothing and he too to have not also stated anything there at the police station. He has further stated that in the FIR he has given his LTI, but that is also being not aware of its contents. Similar is the state of affair in respect of evidence of P.W.3. 9. P.W.2 is another witness who has stated that she had seen the victim coming out of the house of the appellant with bleeding injury and oozing of blood from her private parts whereafter he went to the house of the appellant and found him in an intoxicated state. He is not stating to have seen the appellant alone or that he asked the appellant or even to have marked any other features tending to show any indication in dealing with the victim in any unnatural or abnormal manner. He is not stating to have gone near the victim to have a close look at her and to ascertain any reason of the same by asking the victim anything though not by words but even by gestures. P.W.4 is a witness who had taken the victim to the hospital for medical examination. P.W.5 is the doctor who had examined the appellant. His evidence is of no help in pointing any finger to the complicity to the appellant. Next is the evidence of P.W.7 who is the doctor who had examined the victim. His evidence is that he had found injuries on victim's private part but that does not stand as of any aid to establish the allegation of rape by appellant. On carefully going through all the evidence it may be said that the victim was subjected to sexual assault, but that circumstance only with the other circumstance that the blood group of victim matched with the group of blood detected on the lungi of the appellant are not sufficient in conclusively pointing the appellant to be the author of the said sexual assault upon the victim. In such state of affair in evidence, I do not find that the prosecution has been able to establish its case by proving the circumstances leading to form a chain so complete that there remains no escape but to conclude that it is the appellant who had sexually assaulted the victim. In such state of affair in evidence, I do not find that the prosecution has been able to establish its case by proving the circumstances leading to form a chain so complete that there remains no escape but to conclude that it is the appellant who had sexually assaulted the victim. For the aforesaid discussion, the judgment of conviction of the appellant for the above offences is not sustainable and thus is liable to be set aside which is hereby done. 10. In the result, the appeal stands allowed. The judgment of conviction and order of sentence impugned in this appeal are hereby set aside and the appellant if still is in custody be set at liberty forthwith in case his detention is not required by the authority in any other case or for any other reasons.