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2015 DIGILAW 18 (ORI)

State of Orissa v. Jhadu Luha @ Jaya

2015-01-09

D.DASH

body2015
JUDGMENT The State in this appeal has called in question the order of acquittal passed by the learned Assistant Sessions Judge, Gunupur in Session Case No. 02/39 of 1993, acquitting the respondent of the charge under Section 376 of I.P.C. 2.Prosecution case is that on 09.10.1992 during noon hours, the victim lady P.W.1 along with her husband had been to a place, locally known as “Kantarbadi Chanchara” inside the jungle at a distance of 20 kms. From Muniguda police station. They had gone there to earn their livelihood by way of their engagement in breaking the stones. After their arrival, the husband of the victim P.W.2, left for Muniguda Bazar in a truck for purchasing household articles. So, the victim-P.W.1 was returning alone to her village, Kumudaballi. Around 1.00 pm on her way back home she saw the respondent who was sitting underneath a Mahula tree. It is stated that no sooner did the victim cross the place, where the respondent was sitting, she was followed by the respondent who asked her to stand for a while and listen to him. When the victim P.W.1 stood for a moment, accepting the request, it is stated that the respondent immediately tied a sum of Rs. 30/- and a perfumed oil bottle in her saree. The victim then raised protest, removed and threw those. It is stated that the respondent in spite of victim’s repeated request, did not stop there and forcibly took her to nearby place inside the jungle, made her lie on the ground, removed her saree and made her naked. Thereafter getting himself undressed, he went for penetrative sexual assault upon the victim. The respondent then threatened the victim not to raise any hullah or else to face dire consequences. So the victim maintained silence. After the incident, the victim went to the nearby rivulet, washed herself and returned to the village where she narrated the incident first to her mother-in-law who suggested to wait till the return of her husband. Thereafter, F.I.R. being lodged at the police station to the above effect, necessary case has been registered and investigation triggered. In course of investigation, the I.O. examined the victim and other witnesses, recorded their statements and seized the wearing apparels of the victim while sending the victim as well as the respondent for medical examination. Thereafter, F.I.R. being lodged at the police station to the above effect, necessary case has been registered and investigation triggered. In course of investigation, the I.O. examined the victim and other witnesses, recorded their statements and seized the wearing apparels of the victim while sending the victim as well as the respondent for medical examination. On completion of investigation, charge-sheet being submitted, the respondent faced the trial for offence under Section 376/506 IPC. 3.The prosecution in order to establish the charge against the respondent has altogether examined seven witnesses where as respondent himself has come to the dock in his defence. More importantly from the side of the prosecution, the F.I.R. Ext. 4, medical reports Ext. 1 and 2 as also seizure list etc. have been proved. 4.The trial Court upon examination of the evidence of victim discarded the same since there remains no corroboration from any other source in support of the case of rape upon her by the respondent. It is said that the evidence contains basic infirmities such as maintenance of silence, lack of resistance and absence of such other injuries which do ordinarily come in. With this, the respondent having been acquitted, the appeal has been preferred by the State. 5.Learned counsel for the State submits that the trial Court has erred in law by not holding P.W.1 to be a truthful and trustworthy witness. According to him, the features that she being a married woman had not resisted to that extent, the factum of delay in lodging the F.I.R. are of no significance for being considered and adversely viewed to the case of prosecution. It is further stated that the Court below having not found anything being brought out during cross-examination of the victim to shake her credibility as a truthful witness; it stands as a fit case for interference with the order to acquittal as the reasons of discarding the evidence of prosecutrix given by the trial Court are flimsy and wholly unacceptable land thus there has been perverse appreciation of evidence. 6.Learned counsel for the respondent submits all in support of the finding of the trial Court. According to him, the trial Court has given very good reasons in ultimately disbelieving the evidence of P.W.1. He contends that the version of P.W.1 is not getting any corroboration and for that reason it is unsafe to rely upon it to base a conviction. According to him, the trial Court has given very good reasons in ultimately disbelieving the evidence of P.W.1. He contends that the version of P.W.1 is not getting any corroboration and for that reason it is unsafe to rely upon it to base a conviction. According to him, interference with the order of acquittal at this distance of time would not be in the interest of justice. He further submits that even in case this Court finds it to be a fit case for conviction for offence under Section 376 IPC, the sentence in that event may be appropriately awarded on the lesser side view of adequate and special reasons. 7.On such rival submission, this Court is now called upon to examine the evidence laid by the prosecution in order to judge the sustainability of the finding of the trial Court to judge as to whether the same is the outcome of the proper evidence of not. But before that it is felt to apposite to take note of the settled position of law as regards the scope of this appeal and power of this Court to interfere with the order of acquittal. It has been held in case of Basappa Vrs. State of Karnataka; (2014) 57 OCR 1044 that the High Court in an appeal under Section 378 Cr.P.C. is entitled to reappraise the evidence and put the conclusions drawn by the trial Court to test but the same is permissible only if the judgment of the trial Court is perverse. Relying the case of Gamini Bala Koteswara Rao and others-Vrs. State of Andhra Pradesh; (2009) 10 SCC 639, it has been held that the word “perverse” in terms as understood in law has been defined to mean ‘against weight of evidence’. In ‘K.Prakashan Vrs. P.K. Survenderan; (2008) 1 SCC 258 , it has also been held that the Appellate Court should not reverse the acquittal merely because another view is possible on evidence. It has been clarified that if tow views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref. :- T.Subramaniam Vrs. State of Tamil Nadu; (2006) 1 SCC 401 ). It has been clarified that if tow views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref. :- T.Subramaniam Vrs. State of Tamil Nadu; (2006) 1 SCC 401 ). Further, the interference by appellate Court against an order of acquittal is held to be justified only if the view taken by the trial Court in one which no reasonable person would in the given circumstances, take (Ref.:- Bhima Singh Vrs. State of Haryana;(2002) 10 SCC 461). 8.In the back drop of above, let us first glance at the evidence of P.W.1, the victim. She is a married woman aged about 25 years. She has stated that during the noon hours when she was returning to her village after attending her place of work, this respondent followed her and at a place near a Mahulo tree, he asked her to stop for a while saying that young girl used to state stop at that place for some time. It is further stated that the respondent then tied a perfumed oil bottle and a sum of Rs. 30/- in her saree, which she threw away. Next she states that the respondent caught hold of her hand , forcibly removed her to the judgle at a distance of 300 feet and then committed sexual intercourse by giving threat to her life. She has also stated that after such incident respondent left the place and on her return to house, she narrated the incident to the mother-in-law and then she stated to her husband on his arrival. During cross-examination she stated that the place where the rape was committed was not a stony place and she had a tussle. The doctor in this connection has noticed the superficial injury, when she examined on 15.10.1992 as against the incident taking place on 09.10.1992. The doctor, P.W.4, further stated about the age of the injury to be within 3 to 10 days. Then mother-in-law of the P.W.1 having been examined as P.W.3 has stated that in the evening P.W.1 came near her crying and told about the aforesaid sexual intercourse committed upon her by the respondent and also the incident which had preceded. The evidence of P.W.3 as it appears to be quite consistent with the evidence of P.W.1 as regards the entire incident. The husband of P.W.1 is P.W.2. The evidence of P.W.3 as it appears to be quite consistent with the evidence of P.W.1 as regards the entire incident. The husband of P.W.1 is P.W.2. He has also stated as to what P.W.1 narrated before him, which led him to convene a meeting in the village. In this case the testimony of the victim is found to be free from any basic infirmity. It is seen that she immediately on arrival at the house, narrated the incident to the mother-in-law. There is no evidence nor any such feature emanates there-from giving rise to even a remote possibility that the incident came to the light on account of sudden appearance of somebody. Also no sort of enmity has been established, even too remotely to stand as the reason for false implication. The evidence of P.W.1 is thus found to be having the ring of truth. 9.At this juncture, it is felt necessary to go through the decision of the Honble Apex Court in case of Bharwada Bhoginbhai Hirijibhai v. State of Gujarat, (1983) 3 SCC 217 , this Court held as under: “9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the 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. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted n the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. 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. The identities of the two worlds are different, the solution of problems cannot therefore be identical. 10. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault ……..The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult. to secure an alliance with a suitable math from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma n the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent. “ 10. In State of Maharashtra v. Chandraprakash Kewalchand Jain (1990)1 SC 550, the Apex Court held as under: “15. It is necessary at the outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offence. It is essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court bases a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute ‘’Evidence” means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that Section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or anther cause of the same kind. According to that Section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or anther cause of the same kind. Even in the case of an accomplice, Section 133 provides that he shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), Courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Section 133 and 114, illustration (b). 16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: “It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.” With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. 17. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. 17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe till not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behavior. Ours in not a permissible society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity.” 11.Similar observations were made in State of Punjab v. Gurmit Singh (1996) SCC 384, as under: “…………… The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. Te testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspension? The Court while appreciating the evidence o9f a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost of a par with the evidence of an injured witness and to an extent is even more reliable. The evidence of a victim of sexual assault stands almost of a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the posecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain mount of suspicion, treating her as if she were am accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula an insist upon corroboration even if, taken a whole, the case spoken of by the victim of sex crime strikes the judicial mind a probable.” 12.The trial Court in the present case has given much importance to the evidence of the doctor who has said to have not noticed any feature of recent sexual intercourse. As it appears the trial Court has failed to take note that examination was held on 15.10.1992 when the incident has taken place on 09.10.1992. The doctor, P.W.4 has clarified that he meant the recent intercourse to be within 24 hours from the time of his examination. Moreover, when it has been the evidence of P.W.1 that out of fear she had to surrender, even non-existence of the injury on the private part, in that event is of no fatal consequence. The doctor, P.W.4 has clarified that he meant the recent intercourse to be within 24 hours from the time of his examination. Moreover, when it has been the evidence of P.W.1 that out of fear she had to surrender, even non-existence of the injury on the private part, in that event is of no fatal consequence. Next when during the cross-examination, it has been brought out from the P.W.1 that she had used force to escape, her bangles were broken, this being not stated by the victim in her statement recorded under Section 161 Cr.P.C. before the police has been taken into consideration to view her evidence with suspicion as and that is not corroborated. So the trial Court has gone to disbelieve the evidence of P.W.1 that she never used any force. This is wholly an erroneous approach and such appreciation is nothing but perverse that the trial Court was not legally justified. As regards the result of the medical examination of the respondent, P.W.5 is the doctor who has examined the respondent. He has stated that during evidence and had reported that during his examination of the respondent that he found smegma present on his glans penis. This examination has been made on 14.10.1992. This has no significant so far as the present case is concerned to negate the case of rape. In this connection, the Hon’ble Apex Court in case of Dr. S.P. Kholli v. The High Court of Punjab & Haryana, AIR 1978 SC 1753 have held- “It is well known in the medical world that the examination of smegma loses all importance after 24 hours of the performance of the sexual intercourse”. Next in this connection the Hon’ble Apex Court quoted from the Modi Jurisprudence and Toxicology. Thus here the presence of smegma on the glands penis of the respondent during medical examination, if of no significance and that under any circumstance cannot be taken to negate the case of rape. 13. The trial Court has again viewed delay in lodging the FIR as the circumstance adverse to the case of the prosecution. While saying so, it appears that the Court below has over looked the settled position of law that the delay in lodging the FIR stands to be viewed adversely when it goes without any explanation and that too when there stands enmity giving rise to the possibility of embellishment and exaggeration. While saying so, it appears that the Court below has over looked the settled position of law that the delay in lodging the FIR stands to be viewed adversely when it goes without any explanation and that too when there stands enmity giving rise to the possibility of embellishment and exaggeration. In the present case, prosecution case itself is that at that time the husband of the victim was absent in the house and on his arrival only the matter was taken up and then meeting was convened which usually happens in the rural areas, so thereafter the FIR having been lodged the same is of no such significance when the totality of the circumstances as well as the rural back ground of the victim are simultaneously viewed. The reason given by the trial Court in discarding the evidence of P.Ws. 1, 2 and 3 which are otherwise found to be reliable and free from any infirmity of blemish, does not stand to legal scrutiny. 14.For the aforesaid discussion and reasons, the finding of the trial Court against the case of the prosecution that it has not established the fact that the respondent forcibly committed sexual intercourse upon the victim against her will and consent is found to be totally against the weight of the evidence and as such perverse. Thus there remains the compelling reason to interfere with the same. Therefore, this Court finds that in order to prevent miscarriage of justice the order of acquittal impugned in this appeal should not be allowed to stand. 15.In the wake of aforesaid, the appeal stands allowed. The respondent is convicted for offence under Section 376 IPC. 16.Now coming to the award of appropriate sentence, in view of submission of learned counsel for the respondent, it is necessary to find out existence of any such adequate and special reasons if any to award sentence less than the prescribed minimum. Here the victims a married woman whereas the present age of the respondent is around sixty years. Both hail from rural background and come from similar strata of the society being wage earners. The respondent has been enjoying liberty with presumption of innocence in his favour for more than two decades when the occurrence took place. The sufferings on the part of the respondent and his family members can well be visualized. Both hail from rural background and come from similar strata of the society being wage earners. The respondent has been enjoying liberty with presumption of innocence in his favour for more than two decades when the occurrence took place. The sufferings on the part of the respondent and his family members can well be visualized. At such distance of time, the victim’s family must have also settled down to some extent. So all the above stand for consideration along with the possibility of social ostracization. In view of above, this Court feels it just and proper to direct the respondent to undergo rigorous imprisonment for a period of three years. It is needless to mention that the period already undergone in custody in this case by the respondent shall be set off. The respondent is hereby directed to surrender in the trial Court to serve out the sentence. The trial Court is also directed to take necessary steps in accordance with law in that regard to see that the respondent is taken to custody forthwith to serve out the sentence. Appeal allowed.