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2015 DIGILAW 605 (ORI)

Hati v. State of Orissa

2015-10-30

JATINDRA PRASAD DAS

body2015
JUDGMENT : Jatindra Prasad Das, J. 1. Both the appeals are taken up together since both are directed against the judgment dated 30.01.1992 passed by the learned Addl. District & Sessions Judge, Jajpur in S.T. No. 303/67 of 1989, convicting Hati @ Chintamani Mohanta (Appellant in CRA 69/1992) under Section 376 of the Indian Penal Code (IPC in short) and sentencing him to undergo R.I. for five years and to pay a fine of Rs. 3,000/- in default to undergo R.I. for six months more and convicting Jairam Mohanta (appellant in CRA 74/1992) u/s. 354 IPC and sentencing him to undergo R.I. for two years. 2. The prosecution story, as unfurled, is that on 11.10.1988 at about 2.30 p.m., when the parents of the victim were absent from the house and the victim alone was combing her hair, both the accused persons entered inside her house, gagged her mouth by means of a towel and dragged her to inside a room. There the accused Hati @ Cintamani forcibly raped the victim and thereafter when the accused Jairam was trying to rape her, two females of the village came inside the house and both the accused persons fled away. In the evening, the victim informed her mother, after she came back home, who in turn informed her husband in the night. The father of the victim lodged a written report on the next day at Kaliapani Outpost. Pursuant to the report, the ASI of police in charge of the Outpost took up the investigation sending the FIR to Tamka Police Station for formal registration of the case. In course of the investigation the informant, the victim and the other witnesses were examined, the wearing apparels of the victim and the accused Hati were seized and sent for chemical examination, both the accused persons were arrested and forwarded to the court and the victim was medically examined, once at S.D. Hospital Jajpur for the injuries and again at SCB Medical College, Cuttack for determining her age. After completion of the investigation, charge sheet was submitted under Sections 448/376 IPC against the accused Hati @ Chintamani and under Sections 448/354 of the IPC against the accused Jairam. 3. After completion of the investigation, charge sheet was submitted under Sections 448/376 IPC against the accused Hati @ Chintamani and under Sections 448/354 of the IPC against the accused Jairam. 3. Both the accused persons pleading not guilty to the charges faced their trial with a further plea that due to certain dispute between them and the brother of the victim who was fined in the village meeting, they have been falsely implicated in the case. 4. The prosecution examined 7 witnesses in support of its case as against one in defence to state the defence plea of earlier dispute. 5. The learned Additional Sessions Judge on evaluation of the evidence and the materials placed before him found the prosecution case well proved against both the accused persons as charged and accordingly, passed the impugned judgment of conviction and sentence. Hence the two appeals, filed separately by the two convicts. 6. It has been submitted in the appeal memos, almost with similar averments in both the cases that the learned trial Court seriously erred in law in reaching the conclusion of guilt against the appellants by ignoring the glaring discrepancies and deficiencies in the prosecution case thereby flouting the settled principles of law. It was submitted that the evidence as led by the prosecution never inspired confidence apart from the fact that the medical evidence was against the possibility of rape. It has also been submitted that the investigation of the case also suffered from lacuna making the prosecution case defective, much less establishing the alleged offences against the appellants beyond reasonable doubts. It has also been mentioned that the learned trial Court ignored the defence evidence of animosity between the parties without any assigned reason. 7. Since the counsels for the appellants did not appear despite repeated adjournments for hearing of the matter Mr. Laximinarayan Das, Advocate was engaged as amicus curiae to assist the Court. 8. The learned amicus curiae made the submissions as pleaded in the appeal memo as grounds for appeal besides placing certain citations in support of his contentions. He also painstakingly pointed out the discrepancies and deficiencies in the evidence and materials placed on behalf of the prosecution before the trial Court. 8. The learned amicus curiae made the submissions as pleaded in the appeal memo as grounds for appeal besides placing certain citations in support of his contentions. He also painstakingly pointed out the discrepancies and deficiencies in the evidence and materials placed on behalf of the prosecution before the trial Court. It was also submitted that the glaring discrepancies between the versions of the victim in her statement recorded under Section 164 of the Code of Criminal Procedure ('Code' in short) and her statement before the Court showing her over interestedness was itself enough to disbelieve her version of rape. 9. Per contra, the learned Counsel for the State supporting the verdict of the trial Court submitted that the findings of guilt against the appellants have been rightly reached, since the evidence of the victim itself is enough to bring home the prosecution case without requiring any corroboration. He also submitted that the minor discrepancies as have been pointed out on behalf of the appellants did not affect the veracity of the prosecution case in any manner. 10. The father of the victim submitted the written report on 12.10.1988 alleging that on the previous day at about 2.30 p.m. when he and his wife were absent from their house, the two accused-appellants forcibly entering inside his house pounced upon his 15 year old daughter and gagging her mouth by means of a towel were committing rape on her. At this time since two females of the village reached there, the appellants fled away. Out of the seven witnesses examined on behalf of the prosecution, the p.w.1 is the informant-father, p.w.2 is the victim, p.w.3 is one of the females who reached at the spot at the time of occurrence, p.w.4 is the mother of the victim, p.w.5 is the doctor who first examined the victim about the injuries, p.w.6 is the other doctor who conducted ossification test of the victim and the p.w.7 is the investigating officer. The d.w.1 was examined in support of the defence plea of enmity. It may be mentioned here that the statements of P.Ws. 2 and 3 were recorded under Section 164 of the Code in course of investigation. 11. The d.w.1 was examined in support of the defence plea of enmity. It may be mentioned here that the statements of P.Ws. 2 and 3 were recorded under Section 164 of the Code in course of investigation. 11. Looking into the prosecution case in order of sequence, the victim in her statement under Section 164 of the Code had stated that both the appellants entered inside her house, the appellant Jaya gagged her mouth by a towel and laid her on the ground and the appellant Chintamani @ Hati raped her. Thereafter when the appellant Jairam was trying to rape her, two females reached there who lifted her. She also stated that both the appellants had also threatened her with dire consequences if she shouted. One Mali Mohanta, one of the females who reached the spot stated in her statement under Section 164 of the Code that while she was going on the road, she heard the shouts of the victim from inside their house and entering inside the house she found the victim and that both the appellants went out of the house seeing her and thereafter she lifted the victim from the ground and brought her outside. She concluded by saying that the parents of the victim were not present in the house and thereafter she left. The victim, appearing as p.w.2 before the court, stated that when she was combing her hair inside the house, both the accused persons came inside their house, the accused Chintamani gagged her mouth by a towel and both the accused dragged her inside a room. Thereafter the accused Chintamani pulled out her 'chaddi' and raped her. She added that thereafter the accused Jairam committed intercourse with her forcibly and ejaculated his semen inside her vagina. She added that the two females came inside the house and both the accused persons left the place. She further stated that at about 4.00 p.m. when her mother came back home she told her the incident and that her father came home in the night and reported the matter to police next day morning. In her cross-examination she had stated that she was dragged on the surface for about six cubits. She further stated that at about 4.00 p.m. when her mother came back home she told her the incident and that her father came home in the night and reported the matter to police next day morning. In her cross-examination she had stated that she was dragged on the surface for about six cubits. Most importantly, she was confronted with her statement made before the police about the rape by the accused Jairam, but she categorically denied the suggestion put to her that she did not state before the police about the rape by the accused Jairam. The p.w.3, one of the females who entered inside the house stated that while she was passing by the side of the house of the victim she heard a groaning sound from inside the house and she went inside. She added that seeing her, accused Hati went away from the house and the other accused Jairam was inside the house. She talked to Jai who told her that he had done nothing. Then the victim told her that Hati forcibly raped her and thereafter she brought the victim to the outer veranda and left the place. Being confronted with her earlier statement, she denied the suggestion that she had not stated before the police that she heard a groaning sound from inside the house. 12. The mother of the victim appearing as p.w.4 stated that on her return to house, her daughter told her that both the accused persons dragged her inside the house and the accused Hati forcibly raped her. The father of the victim appearing as p.w.1 stated that on his return home his wife told him about the incident and on the next day he reported the matter to police. 13. In this respect it was submitted by the learned amicus curiae that the prosecution solely relied upon the version of the victim for the alleged occurrence since the p.w.3 who allegedly reached the spot did not whisper anything to have seen the occurrence of rape. 13. In this respect it was submitted by the learned amicus curiae that the prosecution solely relied upon the version of the victim for the alleged occurrence since the p.w.3 who allegedly reached the spot did not whisper anything to have seen the occurrence of rape. Further in her statement recorded under Section 164 of the Code, p.w.3 had not stated as to the victim telling her anything about the occurrence at the spot, whereas in her statement before the Court she went on to say that the accused Hati left the spot and she had a talk with the other accused, adding further that the victim told her that the accused Hati raped her. Again, the victim has tried to exaggerate the incident by further implicating the appellant Jairam for the rape, which shows her interestedness to get the appellants punished. It was submitted that as per the settled proposition of law, even though the solitary testimony of the victim is sufficient to convict the accused but such statement of the victim must be trust worthy and without any blemishes so as to discard any iota of doubt regarding her veracity. 14. In this regard it would be profitable to quote the observation of the Hon'ble Apex Court in the case of Narendra Kumar vrs. State (NCT of Delhi), in (2012) 7 SCC 178 as under: "It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court for corroboration of her statement. Corroboration of the statement of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial which may lend assurance to her testimony...." 15. On the touchstone of the quoted observation, it may be mentioned that there appeared exaggerations in the versions of the prosecutrix as well as in the statement of the p.w.3 who appeared at the scene of occurrence at the relevant time. Keeping these in mind I would like to consider the other circumstantial evidence as found out in the prosecution case. It was submitted on behalf of the appellants that the very first part of the prosecution story that both the appellants entered inside the house of the victim with a criminal intention and left the door of the house open so that the p.w.3 and another female entered inside the house to witness the occurrence is not believable. Further, the other female said to have been present along with the p.w.3 has not been examined by the prosecution without any reason. That apart as per the prosecution case the victim was gagged in her mouth and she has stated that she could not shout but the p.w.3 heard some sound of the victim from inside the house while passing on the road. These contentions have definitely some considerable force to be reckoned with. It may also be reiterated that the p.w.3 did not say about any disclosure to have been made by the victim about the occurrence before her in her statement recorded u/s. 164 of the Code but said many things before the court. 16. Now coming to the medical evidence, as per the statement of the victim, she was dragged by the accused persons to a certain distance on the floor. But absolutely no external injury was found on her body by the doctor, p.w.5 who examined the victim on 13.10.1988, the alleged occurrence being on 11.10.1988. 16. Now coming to the medical evidence, as per the statement of the victim, she was dragged by the accused persons to a certain distance on the floor. But absolutely no external injury was found on her body by the doctor, p.w.5 who examined the victim on 13.10.1988, the alleged occurrence being on 11.10.1988. As per the evidence on record, the doctor found no tenderness on the body, no stains on the clothes, no spermatozoa in the vaginal smear and the victim did not complain of any pain on her person. The doctor also stated that she could not tell as to whether the girl was raped or not. Added to this, the wearing apparels, one 'chaddi' of the victim and one 'lungi' of the accused Chintamani were sent for chemical examination but as per the report, ext.9, no blood stain or seminal stain was found on those clothes. The victim stated in her cross-examination that the floor of the place was stained with semen but the Investigating officer (p.w.7) denied to have noticed any such mark at the spot. In a case of physical violence, the medical evidence plays a vital role, but in the case at hand the medical evidence and the chemical examination report being totally negative to the prosecution allegation, no circumstantial support was available to the prosecution case. The learned trial court observing that absence of injury on the body or private part of the victim does not necessarily rule out the allegation of rape, relied upon certain case laws in that regard. True, presence of injury is not a mandatory requirement, but in the present case the chemical examination report also did not support the prosecution. The learned trial court has totally ignored this aspect. All these circumstances would have been immaterial if the sole evidence of the prosecutrix would have been unblemished. The learned trial court has ignored the highly exaggerated version of the prosecutrix before the court simply to hold the accused Jairam guilty for the offence under Section 354 of the IPC and not under Section 376 of the IPC. It may also be noted here that the victim stated in her statement recorded under Section 164 of the Code that the accused Jairam gagged her mouth by a towel, whereas she stated before the Court that the accused Chintamani gagged her mouth. It may also be noted here that the victim stated in her statement recorded under Section 164 of the Code that the accused Jairam gagged her mouth by a towel, whereas she stated before the Court that the accused Chintamani gagged her mouth. Stressing on this it was submitted on behalf of the appellants that no case under section 354 of the IPC was even made out against the appellant Jairam. Another serious lacuna that the prosecution case suffered from is that neither of the accused persons was medically examined, even though both of them were arrested on the very next day of the alleged occurrence. Going through the impugned judgment, it is seen that these discrepancies and deficiencies in the prosecution case have been lightly put aside by the learned trial court. 17. Lastly, it was submitted on behalf of the appellants that although the victim was reading in a school, the investigating agency had made no effort to find out any school register or any other document to establish the age of the victim. It has simply relied upon the version of the p.w.6, the doctor who on examination of the x-ray plate opined that the age of the victim was above 14 years and below 16 years. It was submitted that in absence of any documentary evidence, the opinion of the p.w.6 cannot be accepted as conclusive, apart from the fact that as per the settled principle of law, a presumptive benefit of two years can be given to the age determined on ossification test. 18. The Sarpanch of the village was examined as D.W.1 who stated that few days prior to the alleged occurrence there was a dispute of assault between the brother of the victim and both the accused persons and in a village meeting, the brother of the victim was fined. The informant-father of the victim, p.w.1 admitted about the dispute. The learned trial court has disbelieved the defence plea with the observation that for such a trifling issue, a case of rape could not have been filed. Be that as it may, it is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Be that as it may, it is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. It was also observed by the Hon'ble Apex Court in the case of Narendra Kumar (supra), that: "However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation." 19. It was also held by the Hon'ble Apex Court in another case as reported in (Padam Singh v. State of U.P.), (2000) 1 SCC 621 that: "It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal or weakened by a conviction in the trial court." 20. In the light of the aforesaid legal propositions, to sum up my observations on the prosecution case as laid before the court are; "i) the victim materially and substantially differed in her statements recorded under Section 164 of the Code and the statements made before the court, which seriously affected her veracity so as to be solely relied upon in order to reach a conclusion of guilt against the accused persons, (ii) similar was the case in respect of p.w.3, which made her presence at the spot of occurrence appear doubtful, (iii) the other female said to have been present along with p.w.3 has not been examined by the prosecution without any assigned reason, (iv) the medical evidence as well as the chemical examination report did not support the prosecution case, and (v) there remained admitted animosity between the parties." 21. Considering the facts and circumstances as discussed, I am constrained to disagree with the findings of the learned trial court as have been reached against both the appellants that the prosecution has been successful in establishing the presumption of guilt against the appellants beyond all reasonable shadows of doubt so as to be awarded with the impugned conviction and sentence. 22. In the result, therefore, both the appeals are allowed. The impugned judgment of conviction and sentence passed in S.T. No. 303/67 of 1989 by the learned Additional Sessions Judge, Jajpur is set aside and both the appellants are set at liberty being discharged from their bail bonds furnished at the time of filing of the appeals. 23. Before I part, I must record my appreciation for the able assistance provided by Mr. Das, Advocate, learned amicus curiae in deciding the case.