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2015 DIGILAW 392 (ORI)

Rabindra Sahoo v. State of Orissa

2015-07-06

S.K.SAHOO

body2015
JUDGMENT S.K.SAHOO, J. - “Api Swarnamayi Lanka Na Mein Lakshmana Rochate Janani Janmabhumischa Swargadapi Gariyasi” (“Lakshmana, even this golden Lanka does not appeal to me. Mother and motherland are greater than heaven.”) Adi Kavi Valmiki in his epic Ramayana has mentioned that Lord Rama told these lines to his younger brother Lakshmana after their victory over Ravana, the king of Lanka. Mother is the epitome of love, sacrifice and strength. Carrying all pain of childbearing for months together, she gives birth to the baby with all smiles and satisfaction. The kid is brought up under her care and affection. She understands what her child does not say. Her arms become the most comfortable and safest place for her child. She is the first and best teacher of her child. No child can compensate what his mother does for him. That is why it is told that mother is superior to heaven. Can a mother be raped by her own son? Can a mother bring false allegation of rape against her son? These are the questions which have cropped up in this appeal. The appellant Rabindra Sahoo faced trial in the Court of learned Addl. Sessions Judge, Fast Track Court No.II, Cuttack in Session Trial No. 442 of 2005 for offences punishable under Section 341, 506 and 376 of Indian Penal Code for wrongfully restraining her mother one “M” (hereafter ‘the victim’), threatening the victim with injury on her person and also committing rape on the victim on 23.3.2005 at about 9 a.m. at village Jayarampur under Salipur Police Station in the district of Cuttack. The learned trial Court vide impugned judgment and order dated 29.4.2006 though acquitted the appellant of the charges under Section 341 and 506 IPC but found him guilty under Section 376 IPC and accordingly convicted him of such offence and sentenced him to undergo rigorous imprisonment for a period of ten years. 2. The learned trial Court vide impugned judgment and order dated 29.4.2006 though acquitted the appellant of the charges under Section 341 and 506 IPC but found him guilty under Section 376 IPC and accordingly convicted him of such offence and sentenced him to undergo rigorous imprisonment for a period of ten years. 2. The prosecution case, as per the First Information Report lodged on 23.3.2005 by the victim (P.W.1) before the Inspectorin- charge, Salipur Police Station is that on that day at about 9.00 a.m. while the husband of the informant was not present in the house, the appellant who is the son of the victim and was addicted to liquor and ganja wrongfully confined the victim inside a room and assaulted her by means of a bamboo stick on her left hand and left leg vigorously for which the victim became senseless. The appellant torn the saree of the victim and committed rape on her and also abused her in filthy languages. The victim was virtually dumb founded as she could not believe that her son would commit such an offence with her. The appellant pressed the neck of the victim and asked her to pay Rs.5000/- within three days or else she would be cut into pieces by means of bhujali and saying so, the appellant left the house. At that time the husband of the victim arrived at the house and found her crying sitting on the outside verandah and on being asked by her husband, the victim narrated the incident before him. 3. On receipt of the written report from P.W.1, the Inspectorin- Charge of Salipur Police Station namely Trinath Mishra (P.W.12) registered Salipur P.S. Case No.74 dated 23.3.2005 under Sections 323, 506 and 376 IPC at about 5.30 p.m. and he himself took up the investigation. He examined the informant and recorded her statement so also the statement of her husband Babaji Sahu. Then the I.O. visited the spot and in presence of the informant and other witnesses prepared the spot map Ext.8. The I.O. also seized one bamboo lathi, one lock with two keys from the spot room on production by the informant in presence of the witnesses under seizure list Ext.4. He further examined the witnesses and recorded their statements on 24.3.2005. The I.O. seized the wearing apparels of the appellant under seizure list Ext.9. The I.O. also seized one bamboo lathi, one lock with two keys from the spot room on production by the informant in presence of the witnesses under seizure list Ext.4. He further examined the witnesses and recorded their statements on 24.3.2005. The I.O. seized the wearing apparels of the appellant under seizure list Ext.9. Then he seized the wearing apparels of the victim under seizure list Ext.3 and then both the appellant and the victim were sent for medical examination under police requisition to S.C.B. Medical College & Hospital, Cuttack. The vaginal swab of the victim as well as her pubic hair were seized so also the semen and pubic hair of the appellant. The appellant was arrested and forwarded to Court on 25.3.2005. The I.O. received the medical examination report of the victim as well as of the appellant. On 15.7.2005 the seized exhibits were sent to SFSL, Rasulgarh for chemical examination and after completion of investigation, charge sheet was submitted on 20.7.2005 under Sections 341, 506 and 376 IPC. 4. After submission of charge-sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under Sections 341, 506 and 376 of Indian Penal Code on 19.9.2005 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. 5. During course of trial, in order to prove its case, the prosecution examined twelve witnesses. P.W.1 is the victim and she is the mother of the appellant and she stated to have taken the zima of lock along with key ring under Zimanama Ext.2 and she is also a witness to the seizure of her wearing apparels under seizure list Ext.3. P.W.2 Babaji Sahu is the father of the appellant before whom the victim narrated about the incident on the date of occurrence. P.W.3 Snehalata Sahu and P.W.4 Namita Sahu did not support the prosecution case for which they were declared hostile by the prosecution. P.W.5 Sabitri Sahu, P.W.6 Mataji Sahu, P.W.7 Mataji Sahu and P.W.8 Lata Sahu stated that the victim narrated the incident before them. P.W.9 Siba Mallik is a witness to the seizure of lock and keys and one bamboo lathi under seizure list Ext.4. P.W.10 Dr. P.W.5 Sabitri Sahu, P.W.6 Mataji Sahu, P.W.7 Mataji Sahu and P.W.8 Lata Sahu stated that the victim narrated the incident before them. P.W.9 Siba Mallik is a witness to the seizure of lock and keys and one bamboo lathi under seizure list Ext.4. P.W.10 Dr. Nirupama Samantaray stated to have examined the victim on 24.3.2005 and proved his report Ext.6. P.W.11 Dr. Brajakishore Dash examined the appellant and proved the medical report Ext.7. P.W.12 Trinath Mishra was the Inspector-in-charge of Salipur Police Station who is the investigating officer in the case. The prosecution also exhibited thirteen numbers of documents. Ext.1 is the F.I.R., Ext. 2 is the Zimanama, Exts.3, 4, 5 and 9 are the seizure lists, Exts. 6 and 7 are the medical examination reports, Ext.8 is the spot map, Ext.10 and 11 are the police requisitions, Ext.12 is the forwarding report of sending the articles for chemical analysis and Ext.13 is the chemical examination report. The prosecution also proved some material objects. M.O.I is the lathi, M.O.II is the lock and M.O.III is the ring having one key. 6. The defence plea of the appellant is one of denial and it is pleaded that the victim was a characterless lady and many notorious persons were coming to her for which his (appellant’s) wife left her in-laws’ house and stayed at her father’s place. It is further pleaded that as the appellant was addicted to liquor, ganja and opium and was regularly assaulting the victim, he has been falsely entangled in the case. 7. The learned trial Court vide impugned judgment and order dated 29.4.2006 held that in the facts and circumstances of the case, while the main aim of the appellant, in terrorizing and assaulting the victim was to commit rape on her in an intoxicated mood, it can be safely said that the appellant had no intention either to detain or to criminally intimidate her. Accordingly, the learned trial Court acquitted the appellant of the charges under Sections 341 and 506 IPC but found him guilty under Section 376 IPC and convicted him of such offence and sentenced him as noted above. 8. Being dissatisfied with the impugned judgment and order of conviction, the instant appeal has been preferred by the convicted accused-appellant. Accordingly, the learned trial Court acquitted the appellant of the charges under Sections 341 and 506 IPC but found him guilty under Section 376 IPC and convicted him of such offence and sentenced him as noted above. 8. Being dissatisfied with the impugned judgment and order of conviction, the instant appeal has been preferred by the convicted accused-appellant. Miss Mandakini Panda, learned counsel for the appellant submitted that the judgment and order of conviction of the learned trial Court is perverse and the learned trial Court has not assessed the evidence on record properly. She further submitted that it sounds improbable that the appellant would commit rape on her mother and further submitted that the ocular testimony of the victim runs contrary to medical evidence. She also submitted that the chemical examination report findings goes against the prosecution case and since the appellant was a drug addict and extracting money from his parents on different occasions, he has been falsely entangled in the crime and accordingly she urged that it is a fit case for grant of benefit of doubt to the appellant. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand submitted that the victim being a married lady, injuries are not expected on her private parts and there was no earthly reason on the part of the victim to falsely entangle the appellant who is none else than her son in such a heinous crime. The learned counsel further submitted that since the victim disclosed about the occurrence before number of co-villagers, her conduct also strengthens her evidence and accordingly urged that the impugned judgment is well merited and therefore it be concurred and the appeal being devoid of merits be dismissed. 9. To appreciate the rival submissions raised at the bar, it is felt necessary first to analyse the evidence of the victim thoroughly as in a case of this nature, she is the best witness. P.W.1 is the victim who in her deposition clearly and unequivocally stated that the appellant is her son and on the date of occurrence while she was sitting in the house of her nephew, the appellant called her to cook food for which she came to the house. When she started preparation for cooking food, the appellant assaulted her by means of lathi and then opened her clothes, tore it and tried to rape her. When she started preparation for cooking food, the appellant assaulted her by means of lathi and then opened her clothes, tore it and tried to rape her. The victim asked the appellant as to why he was doing all these things; he replied that since his wife was not there, he would have sexual intercourse with her. When the victim protested, the appellant tried to push a lathi into her private parts. Even though the victim requested the appellant to leave her but the appellant made her fall on the ground and committed sexual intercourse. The appellant then provided water to the victim so also rescued her while she was attempting to commit suicide by hanging herself and thereafter the appellant left the spot. The victim narrated about the incident before some co-villagers. After sometime when her husband came, the victim also told him about the incident. In the cross-examination, it is elicited from the victim that she had sustained a swelling on her left arm and left leg and she had shown the swelling to the doctor. She has further stated that the appellant was addicted to liquor, ganja and opium. It has been suggested to the victim that as the appellant was addicted to liquor, ganja and opium and regularly assaulting her, he has been falsely entangled in a case. The victim has categorically denied such suggestion. The appellant has not placed on record any material to substantiate his defence and therefore, the plea taken by the appellant cannot be accepted. It is improbable that a mother would bring false allegation of rape against a son because the son was a drug addicted. There is no contradiction in the evidence of the victim rather her evidence appears to be consistent, absolutely trustworthy, unblemished and of sterling quality. The first information report was lodged by the victim and the statement made by the victim in Court is almost identical as has been narrated in the FIR. 10. On scrutiny of the evidence of the victim, it appears that mentally and emotionally she felt so depressed and humiliated by the cruel act of the appellant that she tried to take the extreme step of ending her life by committing suicide by hanging but the appellant forcibly brought her outside by dragging. 10. On scrutiny of the evidence of the victim, it appears that mentally and emotionally she felt so depressed and humiliated by the cruel act of the appellant that she tried to take the extreme step of ending her life by committing suicide by hanging but the appellant forcibly brought her outside by dragging. The other witnesses like P.W.2 Babaji Sahu, the husband of the victim as well as P.Ws.5, 6, 7 and 8 have stated that the victim disclosed before them that the appellant raped her. Nothing has been also elicited from their evidence to disbelieve the same. The immediate conduct of the victim in making an attempt to commit suicide and disclosing about the incident before others is admissible under Section 6 of the Evidence Act as res gestae. Res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime. Statements made within the res gestae of a crime are admissible on the basis that spontaneous statements in the circumstances are reliable. It is an exception to the general rule of admissibility of hearsay evidence. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act was on account of spontaneity and immediacy of such statement or fact, in relation to the “fact in issue” and thereafter, such facts or statements are treated as a part of the same transaction. In other words, to be relevant under Section 6 of the Evidence Act, such statement must have been made contemporaneously with the fact in issue, or at least immediately thereupon, and in conjunction therewith. If there is an interval between the fact in issue and the fact sought to be proved, then such statement cannot be described as falling in the “res gestae” concept. The test to determine admissibility under the rule of “res gestae” is embodied in words “are so connected with a fact in issue as to form a part of the same transaction”. The test to determine admissibility under the rule of “res gestae” is embodied in words “are so connected with a fact in issue as to form a part of the same transaction”. It is therefore, that for describing the concept of “res gestae”, one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. The illustration (a) under Section 6 of the Evidence Act, especially in conjunction with the words “are so connected with a fact in issue as to form a part of the same transaction” implies that it must be contemporaneous with the acts and there should not be interval which would allow fabrication. The essence of doctrine of res gestae in evidence is that the facts which though not in issue are so connected with the fact in issue as to form part of the same transaction and thereby become relevant like fact in issue. Thus the evidence of the victim gets full support from the testimonies of other witnesses. 11. The learned counsel for the appellant Miss Panda submitted that the victim has stated that the appellant assaulted her by means of a lathi and also made her fall on the ground and committed sexual intercourse but there is no corresponding injury on the person of the victim to corroborate such statement and as such her testimony should be discarded. At this juncture, it would be better to analyse the evidence of the doctor. P.W.10 Dr. Nirupama Samantray who examined the victim on 24.3.2005 i.e. on the next day of occurrence on police requisition stated that no bodily injury was present, there was no injury around the private part, no medical evidence of the sexual intercourse and further stated that the blood and pregnancy test were found negative. However the doctor P.W.10 has clarified that since the victim was accustomed to sexual intercourse being a married lady, ordinarily no injury would be found on her body. However the doctor P.W.10 has clarified that since the victim was accustomed to sexual intercourse being a married lady, ordinarily no injury would be found on her body. In view of the clarification of the doctor, absence of the condition of the floor where she was made to fall or raped or any evidence that the victim was made complete naked during the commission of rape, in my humble view the negative medical report cannot negative the statement of the victim which is otherwise reliable. On medical examination of the appellant on 24.03.2005, the doctor P.W.11 found the appellant to be capable of performing sex but found no evidence of recent sexual intercourse. Law is well settled that even in the absence of corroboration from medical evidence, the oral testimony of the prosecutrix, if found to be cogent, reliable, convincing and trustworthy can be accepted. However if the sole testimony of the prosecutrix appears to be wholly improbable and unsupported by any medical evidence then the Court shall be extremely careful before acting upon such testimony. Absence of injuries on the private parts of the victim that to a married lady who was accustomed to sexual intercourse would not by itself falsify the case of rape. The assault by a lathi on her by the appellant as stated by the victim may be an exaggerated version but for such exaggeration, the entire evidence of the victim cannot be thrown overboard straightway. 12. The victim has stated that the appellant tore her cloth which was seized under seizure list Ext.3. Ext.3 indicates that a yellow colour saree in torn condition and one black colour old saya having semen stain like were seized. Thus the seizure of torn saree also lends support to the evidence of the victim. The vaginal swab of the victim, her pubic hair, saya and saree of the victim as well as semen of the appellant, his pubic hair and lungi were sent for chemical examination and the chemical examination report Ext.13 indicates that blood stain and semen stain could not be detected in the vaginal swab, pubic hair of the victim and her saya and saree so also in the lungi and pubic hair of the appellant. Vaginal fluid stains could not be detected in the lungi of the appellant. Thus the chemical examination report no way helps the prosecution. 13. Vaginal fluid stains could not be detected in the lungi of the appellant. Thus the chemical examination report no way helps the prosecution. 13. Even though the medical examination report of the victim as well as the chemical examination report do not support the prosecution case but the statement of the victim, her conduct in attempting to commit suicide after the occurrence, the statements of the witnesses before whom the victim disclosed about the incident immediately after the occurrence, the lodging of the FIR on the same day of occurrence after the arrival of the husband of the victim, the seizure of torn saree of the victim as well as the surrounding circumstances clearly establishes the case against the appellant. 14. Upon critical analysis of the evidence led in the case, I find that the prosecution has succeeded in establishing the guilt of the appellant beyond all reasonable doubt. The conclusions reached by the learned trial Court cannot be said to be palpably wrong or based on erroneous view of the law, so as to call for interference in appeal. 15. Accordingly, the appeal stands dismissed. The impugned judgment and order of conviction of the appellant under Section 376 Indian Penal Code and sentence of rigorous imprisonment for ten years as was imposed by the learned trial Court which cannot be considered to be excessive or unwarranted on the facts of the case, is hereby upheld. It appears from the record that the appellant was forwarded to Court on 25.03.2005 after arrest and since then he remained in jail custody. He was neither on bail during trial or during pendency of the appeal. Thus the appellant has already undergone the period of sentence as was imposed on him by the learned trial Court which is confirmed in this appeal. The appellant, if he is still in jail should be released forthwith, if his detention is not required in any other case. Before parting, I would humbly say that a mother plays a very special and important role in a man’s life. The son gets unconditional love from his mother. The son completes the womanhood of his mother. Mother makes a man out of a boy. The mother-son relationship and their emotional bond are dynamic. It is said that God cannot be everywhere and that is why he made mothers. The son gets unconditional love from his mother. The son completes the womanhood of his mother. Mother makes a man out of a boy. The mother-son relationship and their emotional bond are dynamic. It is said that God cannot be everywhere and that is why he made mothers. Let us respect our mothers who not only brought us to this world but struggled so hard to make us a complete man. The Jail Criminal Appeal is dismissed. Appeal dismissed.