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2015 DIGILAW 376 (ORI)

Bikram Rout v. State of Orissa

2015-06-22

S.K.SAHOO

body2015
JUDGMENT : S.K. Sahoo, J. "Rape and war, she explained are among the most common causes of post-traumatic stress disorder, and survivors of sexual assault frequently exhibit many of the same symptoms and behaviors as survivors of combat: flashbacks, insomnia, nightmares, hyper vigilance, depression, isolation, suicidal thoughts, outbursts of anger, unrelenting anxiety, and an inability to shake the feeling that the world is spinning out of control." - Jon Krakaue 1. The appellant faced trial in the Court of learned Ad hoc Addl. Sessions Judge, Fast Track Court, Jajpur in S.T. No. 119 of 2004 for offences punishable under sections 366 and 376(2)(g) of Indian Penal Code for kidnapping one "S" (hereafter 'the victim') on 9.10.2002 at about 6.00 p.m. at Mathagadia (Mundamal) with an intention that she might be compelled or forced or seduced to illicit intercourse and also for committing rape on the victim. The learned trial Court vide impugned judgment and order dated 25.4.2006 found the appellant guilty of the offences under section 366 and 376(2)(g) Indian Penal Code and sentenced the appellant to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for six months on each count under section 366 and 376(2)(g) Indian Penal Code and both the sentences were directed to run concurrently. 2. The factual matrix of the prosecution case, eschewing unnecessary details and describing briefly, as per the first information report (Ext. 4/1) lodged by the victim (P.W.23) before officer-in-charge, Jajpur Road Police Station is that on 9.10.2002 during the evening hours at about 6.00 p.m. while the victim was returning home after finishing cooking in the house of Dr. Hari Prasad Pati, the appellant and co-accused Natia Rout @ Danei and two of their associates caught hold of the victim from her back near a mango tree situated in village Mathagadia and gagged her mouth. The victim was assaulted by fist blows and slaps and taken in a car towards some unknown destination. The victim lost her sense and when she regained her sense, she found herself lying on a hill situated near Kabatabandha and four persons were sitting by her side and consuming liquor. Before the victim could make any query, she was pressed on the ground by two persons and thereafter the appellant and all his associates committed rape on her one after another. Before the victim could make any query, she was pressed on the ground by two persons and thereafter the appellant and all his associates committed rape on her one after another. The victim became senseless again and towards dawn when she regained sense, she found that nobody was present near her. An old man of the nearby village came near the victim and looking at her alarming condition, took her to Kabatabandha Hospital and after ascertaining her identity there, contacted her brother-in-law who was staying at Jajpur Road. The brother-in-law of the victim took her back but thereafter she was threatened not to report the matter in the Police Station otherwise she would face dire consequence. The victim was very apprehensive in view of the previous conduct of the accused persons and accordingly could not report the matter in the Police Station even on the next day of occurrence. The victim lodged a written report on 11.10.2002 at Jajpur Road Police Station which was scribed by co-villager Fakira Behera as per her instruction and the same was treated as FIR by P.W.25 Sanatan Sahu, Sub-Inspector of Police attached to Jajpur Road Police Station in absence of the officer-in-Charge. P.W.25 took up investigation of the case and during course of investigation, he examined the victim and other witnesses and sent the victim for her medical examination under police requisition, conducted raids for apprehension of the accused persons, seized the sealed bottle containing vaginal swab and another sealed bottle containing pubic hair and nail clippings of the victim which were collected by the Medical Officer under seizure list Ext. 6/1. He also seized the wearing apparels of the victim under seizure list Ext. 10, visited the spot and prepared spot maps Exts. 15 and 15/1, seized two empty packets of gutka etc. from the spot and prepared the seizure list Ext. 1/3. He also seized sixteen Nos. of photographs and one shirt under seizure list Ext. 5. He received the medical examination reports of the victim and on his prayer, the seized articles i.e. the wearing apparels of the victim and her vaginal swab and pubic hair collected in two sealed bottles were forwarded by the learned J.M.F.C., Jajpur Road on 22.11.2002 for chemical examination to S.F.S.L., Rasulgarh. The appellant was apprehended on 25.11.2002 and he was sent for medical examination. The appellant was apprehended on 25.11.2002 and he was sent for medical examination. On 26.11.2002 P.W.25 seized one small bottle containing seminal fluid of the appellant and another sealed bottle containing pubic hair of the appellant under seizure list Ext. 12/1 on being produced by the Havildar. He also seized the wearing full pant, shirt of the appellant under seizure list Ext. 7/1. The appellant was arrested on 27.11.2002 and forwarded to Court. On 3.12.2002 P.W.25 received the opinion from the Medical Officer. On 6.12.2002 on the prayer of the I.O., the seized articles i.e. wearing apparels of the appellant and his semen sample and pubic hair collected in two sealed bottles were sent for chemical examination. P.W.25 also received the chemical examination report vide Ext. 18. On 18.3.2003 P.W.25 sent a query to the Medical Officer and on 19.3.2003 he made a prayer for issuance NBW and processes under sections 82 and 83 Cr.P.C. against the two other absconding accused persons. On 26.3.2003 P.W.25 seized one ambassador car bearing registration No. WB-24-9203, the registration certificate of that vehicle, insurance policy under seizure list Ext. 11/1 and gave the same in the Zima of one Samir Kumar Tripathy and finally after completion of investigation, P.W.25 submitted charge-sheet under section 366, 376(2)(g)/109 Indian Penal Code against the appellant and co-accused persons Natia Rout and Alok Kumar Mallick showing the other two co-accused persons as absconders. 3. After submission of charge-sheet, the case was committed to the Court of Sessions for trial after observing due committal procedure where the learned trial Court charged the appellant under sections 366 and 376(2)(g) of Indian Penal Code on 20.9.2004 and since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution examined as many as 25 witnesses. P.W.1 Pradip Barik, P.W.2 Abinash Behera, P.W.3 Rabindra Kumar Rout, P.W.9 Brundaban Chandra Dhir, P.W.11 Sanjay Kumar Jena, P.W.12 Kodandadhar Dheer, P.W.15 Litu Mohanty, P.W.16 Biswanath Mohanty, P.W.17 Sridhar Sahu and P.W.22 Kuni Nayak did not support the prosecution case. 4. During course of trial, in order to prove its case, the prosecution examined as many as 25 witnesses. P.W.1 Pradip Barik, P.W.2 Abinash Behera, P.W.3 Rabindra Kumar Rout, P.W.9 Brundaban Chandra Dhir, P.W.11 Sanjay Kumar Jena, P.W.12 Kodandadhar Dheer, P.W.15 Litu Mohanty, P.W.16 Biswanath Mohanty, P.W.17 Sridhar Sahu and P.W.22 Kuni Nayak did not support the prosecution case. P.W.4 Ramesh Chandra Das and P.W.6 Smt. Minati Sahu were the police constables attached Jajpur Road Police Station who accompanied the victim to Jajpur Road Hospital as per the direction of the officer-in-Charge of Jajpur Road Police Station for her medical test and both of them proved the command certificate Ext. 2. P.W.5 Dr. Bijaya Kumar Satpathy was the Medical Officer attached to Kabatabanda P.H.C. who examined the victim on 10.10.2002 as an outdoor patient for her ailment of cold and body ache and he proved the outdoor ticket Ext. 3. P.W.7 Fakira Behera who is a co-villager of the victim stated that he along with the brother-in-law of the victim searched for the victim as she did not return to her house after her work. He further stated that the victim informed him that she was kidnapped by the appellant and was taken to Mathagadia. She was declared hostile by the prosecution. P.W.8 Prahallad Mallick stated that one Ananda Rout came with the victim during mid-night to his house and requested him to give shelter to the victim for a night but he refused to give shelter. P.W.10 Ashok Dhir is a witness to the seizure of some photographs under seizure list Ext. 5. P.W.13 Smt. Sabitri Rout stated that her brother-in-law brought the victim to her house and the victim stayed in her house in the night and on the following morning, the victim told her that she was brought by one person and on the way she was rescued by her (P.W.13's) brother-in-law. P.W.14 Ananda Chandra Rout stated that he met the victim in the mid-night near the foot step of the village and that subsequently the victim told him that she was raped by the appellant, a driver of the car and another person. P.W.18 Dr. Smt. Sudesha Sarangi was attached to Area Hospital, Jajpur Road as Medical Officer and she examined the appellant on 25.11.2002 and found some injuries on his person. She proved the medical report of the appellant vide Ext. P.W.18 Dr. Smt. Sudesha Sarangi was attached to Area Hospital, Jajpur Road as Medical Officer and she examined the appellant on 25.11.2002 and found some injuries on his person. She proved the medical report of the appellant vide Ext. 8 and also gave reply to the query made by the Investigating Officer vide Ext. 9 and collected sample of spermatozoa and pubic hair of the appellant for the purpose of chemical examination. P.W.19 Manguli Patihari is the brother of the victim who stated about the disclosure made by the victim regarding her kidnapping and commission of rape by the appellant and one Natia Dalai. He is a witness to the seizure of wearing apparels of the victim under seizure list Ext. 10. P.W.20 Dr. Harihara Pati stated that on the date of occurrence, the victim was working in his house as a maid servant and at about 7.00 p.m. she left his house. P.W.21 Nrusingha Charan Swain was the Home guard of Jajpur Road Police Station who stated about the seizure of the documents of the vehicle under seizure list Ext. 11/1 and two sample bottles under seizure list Ext. 12/1. P.W.23 is the victim. P.W.24 Dr. Bipin Bihari Panda was attached to District Headquarters Hospital, Jajpur as gynae specialist and on 12.10.2002 he examined the victim on police requisition. He also examined the saree of the victim and gave his report Ext. 13. On 18.3.2003 he received some query from the Investigating Officer and gave his opinion vide Ext. 14. P.W.25 Sanatan Sahu is the Investigating Officer. The prosecution exhibited nineteen numbers of documents. Exts. 1/3, 5, 6/1, 7/1, 10, 11/1 and 12/1 are the seizure lists, Ext. 2 is the command certificate, Ext. 3 is the outdoor ticket of Kabatabandha PHC, Ext. 4/1 is the FIR, Exts. 8, 9 and 13 are the injury reports, Ext. 14 is the opinion of the doctor, Ext. 15 is the spot map, Exts. 16 and 17 are the office copies of forwarding reports, Ext. 18 is the chemical examination report and Ext. 19 is the Zimanama. 5. The defence plea of the appellant is one of denial. 8, 9 and 13 are the injury reports, Ext. 14 is the opinion of the doctor, Ext. 15 is the spot map, Exts. 16 and 17 are the office copies of forwarding reports, Ext. 18 is the chemical examination report and Ext. 19 is the Zimanama. 5. The defence plea of the appellant is one of denial. From the suggestion given to the victim (P.W.23), the defence pleaded that there was love affair between the appellant and the victim prior to the occurrence and the victim moved with the appellant to different places including Puri and that on the date of occurrence, the victim and the appellant were voluntarily proceeding towards Balarampur to the sister's house of the appellant and while they were so proceeding, it became late night and the villagers of Balarampur suspecting foul play, caught hold of the appellant and the victim and assaulted the appellant and after being caught by the villagers, in order to save her face, the victim falsely implicated the appellant in the case. No witness was examined on behalf of the defence. From the side of the defence the colour photographs of the victim and the appellant were exhibited as Exts. A, B, C and D. 6. The learned trial Court vide impugned judgment and order dated 25.4.2006 held that the victim appears to be a reliable and truthful witness and therefore, her testimony showing that she was abducted and raped by the appellant and his associates is wholly reliable and further held that the prosecution established the case against the appellant beyond doubt and therefore convicted the appellant of the framed charges and sentenced him as noted above. Being dissatisfied with the impugned judgment and order of conviction, the instant appeal has been filed by the convicted accused-appellant. 7. Mr. Being dissatisfied with the impugned judgment and order of conviction, the instant appeal has been filed by the convicted accused-appellant. 7. Mr. Arijeet Mishra, learned advocate appearing for the appellant as amicus curiae launching a scathing attack on the impugned judgment and order of conviction submitted that the learned trial judge committed glaring mistakes in relying upon the testimony of the victim which is not at all trustworthy and reliable and when the manner in which the alleged gang rape stated to have taken place is not corroborated by the medical evidence, the delay in lodging of the FIR has not been properly explained and the appreciation of the evidence of the learned trial Court is totally perverse, the appellant is entitled to be given benefit of doubt and therefore, the appeal may be allowed by setting aside the conviction and sentence and he be acquitted and set at liberty. Mr. Janmejaya Katikia, the learned Addl. Govt. Advocate appearing for the State submitting conversely argued that the evidence of the victim is truthful, cogent and unblemished and no animus could be brought out by the defence to falsely implicate the appellant. He further contended that the evidence of the victim gets corroboration from the other evidence and in a case of this nature, the evidence of the victim can be acted upon even if the medical evidence is otherwise. Concluding his submissions, learned counsel for the State urged that the impugned judgment is well merited and therefore it be concurred and the appeal being devoid of merits be dismissed. 8. To appreciate the rival submissions raised at the bar, I have bestowed my anxious consideration to weigh and analyse the evidence brought on record for the purpose whether testimony of the victim deserves acceptance and ultimately the prosecution case deserves acceptance or not. It appears that there is wide variance in the prosecution case as narrated by the victim in the FIR vis-à-vis as deposed by her during trial. It appears that there is wide variance in the prosecution case as narrated by the victim in the FIR vis-à-vis as deposed by her during trial. The victim stated in her evidence in Court that she had given a bite on the hand of the appellant while she was being taken in the car and when the car stopped near the hill of Balarampurgarh, the appellant and Natia brought her down from the car and thereafter the appellant Natia and the unknown person took her to the hill top by foot and the driver left the spot with the car. On the other hand, in the First Information Report, the victim had stated that she was taken in the car towards an unknown destination and she lost her sense and when she regained her sense, she found herself lying on the hill. The victim stated in the FIR that while two persons caught hold of her hands and legs, the appellant and all his associates committed rape on her one after another for which she became senseless. In the evidence in Court, the victim has not stated that any of the accused was holding her legs and hands or pressing her on the ground while others were committing rape. She has stated in her evidence that first the appellant committed rape on her after removing her saree and saya and after committing rape, the appellant got up and while she was lying on the ground, accused Natia committed forcible intercourse on her. She has further stated that while she was being raped by the appellant and Natia, the unknown person being drunk was slipping nearby. In the FIR, though the victim has stated that all the four persons including the appellant committed rape on her one after another but in the evidence, she has stated that it is only the appellant and accused Natia who committed rape on her. The victim has stated in her evidence that on the following day of the occurrence, she was brought to Kabatabandha Hospital where she was medically examined and she narrated the occurrence to the Medical Officer who examined her. P.W.5 Dr. Bijaya Kumar Satpathy was the Medical Officer attached to Kabatabandha PHC and he stated that he examined the victim as an outdoor patient on 10.10.2002 for her ailment of cold and body ache which was also incidental to cold. P.W.5 Dr. Bijaya Kumar Satpathy was the Medical Officer attached to Kabatabandha PHC and he stated that he examined the victim as an outdoor patient on 10.10.2002 for her ailment of cold and body ache which was also incidental to cold. Thus P.W.5 has not whispered anything about the alleged narration of the occurrence by the victim before him. The victim has stated in her evidence that she had sustained injury on her right cheek when her mouth was pressed while she was being taken in the car. She has further stated that she sustained injury on the neck to the backside, right hand and right shoulder while she was being taken in the car. The doctor (PW.24) who examined the victim on 12.10.2002 at District Headquarters Hospital, Jajpur noticed only one injury i.e. an abrasion on the left side of the upper lip of the victim. The victim has stated in her evidence that the appellant removed her blouse and tape of the bra was torn and she was completely made naked at the time of commission of rape. She has further stated that she was struggling all through while lying on the ground when the appellant and Natia committed the rape by moving her limbs. The occurrence is stated to have taken place on the hill which is obviously a rough and hard surface but most interestingly, the doctor (P.W.24) has stated that there was no injury either on the private part or on any other portion of the body. The doctor has specifically stated in the cross-examination that in case of forceful intercourse on a rough and hard surface, there will be injuries on the backside of the body of the victim. Thus the ocular testimony of the victim runs contrary to the medical evidence. The victim was missing from 9.10.2002 evening. The brother-in-law of the victim namely, Ramesh Jena stated to have asked P.W.7 to accompany him to search the victim and accordingly both of them proceeded up to Mathagadia village from their village in search of the victim but could not get her and thereafter they returned back to the village. The police station is just four kilometers away but no missing report was presented at the police station. Ramesh Jena has not been examined during trial. The police station is just four kilometers away but no missing report was presented at the police station. Ramesh Jena has not been examined during trial. Neither the First Information Report was lodged on 9.10.2002 night or even on the next day i.e. on 10.10.2002, even though the victim stated to have narrated the incident before number of persons including the Gramarakhi and a government doctor. The explanation for delay in lodging the FIR which has been mentioned in the FIR has not been stated by the victim in her evidence. No doubt in delay in lodging FIR in cases under section 376 IPC would depend upon the facts of each case and there are plethora of decisions where immense allowance has been given to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors. In the present case, when the victim stated to have narrated the incident before number of persons including the Gramarakhi and a government doctor, the non-filing of FIR assumes a great significance. As it appears that the victim was a widow. The victim has stated that prior to the occurrence, the appellant had taken her to Cuttack and Puri and snapped photos with her, of course she has stated that the same was done forcefully. The defence has proved the photographs of the appellant and the victim as Exhibits A, B, C and D. The victim admits in her evidence that in the photograph Ext. A, she had posed in the lap of the appellant and in Ext. C, her photograph with the appellant was taken while taking bath at Puri sea beach. She has further stated that both of them returned back to their village from Puri on the same day. She further admits that the appellant was not married when she was taken to Puri. Though the victim has denied the specific defence suggestion that she had love affairs with the appellant prior to the occurrence and moved together to different places including Puri but the evidence of the victim coupled with the admitted photographs proved by the defence and the manner in which the photographs were taken clearly indicates that the victim and the appellant were very close to each other and there was love relationship between them. The learned trial Court has accepted the testimony of the victim in spite of several infirmities in her evidence. There can be no iota of doubt that on the basis of sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based inasmuch as the evidence of the prosecutrix is more reliable than that of an injured witness. It is also the settled principle of law that corroboration as a condition precedent for judicial reliance on the testimony of the prosecutrix is not the requirement of law but a guidance of prudence under the given circumstances. In the circumstances of the present case, in my humble opinion, the impugned judgment indicates an impropriety of approach of the trial Court to the whole issue. The forceful kidnapping of the victim and assault on her by slaps and fist blows inside the car as well as her evidence that she was made complete naked while she was gang raped on the hill and that she was struggling all through lying on the ground by moving her limps during the commission of rape is falsified by the medical evidence. The medical evidence in the scenario gains utmost significance as the doctor has categorically stated that after examining the victim, he had found no injury on her private part or on any other portion of the body. The first government doctor who examined her at Kabatabandha PHC on 10.10.2002 has not stated that the victim disclosed anything before him regarding the alleged kidnapping or commission of rape. The delay in lodging FIR, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. I am of the view that the testimony of the victim does not inspire confidence and it is not of such quality upon which reliance can be placed. The circumstantial evidences also do not lend support to the statement of the victim. Accordingly, I am of the view that the learned trial Court has erroneously convicted the appellant for the alleged offences. In the ultimate analysis, I am of the opinion that the prosecution has miserably failed to establish the charges under sections 366 and 376(2)(g) of Indian Penal Code against the appellant. Accordingly, I am of the view that the learned trial Court has erroneously convicted the appellant for the alleged offences. In the ultimate analysis, I am of the opinion that the prosecution has miserably failed to establish the charges under sections 366 and 376(2)(g) of Indian Penal Code against the appellant. Accordingly, the impugned judgment and order of conviction is set aside and the appellant is acquitted of the charges under sections 366 and 376(2)(g) of Indian Penal Code. As it appears, the appellant was directed to be released on bail by this Court vide order dated 23.12.2008. It is not clear as to whether the appellant had been released from jail custody or not. If not released, he should be set at liberty forthwith if his detention is not required in any other case. If he has been released by the learned trial court by virtue of the order of this Court on furnishing bonds then he is discharged from liability of his bail bond. The personal bond and the surety bond, if any, stand cancelled. The JCRLA is allowed.