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2016 DIGILAW 1063 (ORI)

Chhotu @ Nabarang Singh v. State of Orissa

2016-11-08

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - The appellant in this appeal calls in question the impugned judgment of conviction and order of sentence dated 12.03.2008 passed in S.T. No.88/29 of 2005 by the learned Addl. C.J.M.-cum-Asst. Sessions Judge, Rourkela holding the appellant guilty of the charges under Sections 376(2)(g), 458 and 506 of the Indian Penal Code, 1860 (for short “the IPC”) and sentencing him to undergo R.I. for 10 years and to pay a fine of Rs.2000/-, in default, to undergo R.I. for a further period of 3 months under Section 376(2)(g) of IPC, R.I. for 3 years and to pay a fine of Rs.2000/-, in default, to undergo R.I. for a further period of 3 months under Section 458 of IPC and R.I. for six months under Section 506 of IPC. 2. In a nutshell, the case of the prosecution is that on the intervening night of 26/27.09.2004, the appellant along with one Pagal Hati entered into the house of one Bijli Kindo (P.W.1) and at the knife point they committed rape on the helpless and hopeless victim (P.W.13) who was staying in that house during that period. One Rintu thereafter disclosed to her that there is danger to her life as he had the information that some miscreants will enter into her house. Apprehending danger, the victim as such remained in the house of her neighbor in that night. On the next day, i.e., on 30.09.2004 in the noon after the victim returned from her college, one Rintu met her who assured her to help and on such false pretext took the victim with him to his brother’s house in village- Barabansa where Rintu committed rape on her but disclosed the name of the appellant and his associate – Pagala Hati to have committed rape on her in the house of Bijli Kindo. The aforesaid matter was reported to the police on 01.10.2004, on receipt of which case was registered vide Bandamunda P.S. Case No.84 of 2004, police apprehended the culprits including the appellant, conducted investigation, seized incriminating materials, sent the victim and her rapist for medical examination, and on completion of investigation, charge-sheet was laid against the appellant and two others. 3. The aforesaid matter was reported to the police on 01.10.2004, on receipt of which case was registered vide Bandamunda P.S. Case No.84 of 2004, police apprehended the culprits including the appellant, conducted investigation, seized incriminating materials, sent the victim and her rapist for medical examination, and on completion of investigation, charge-sheet was laid against the appellant and two others. 3. Relying on the materials placed by the prosecution, the trial Court framed charge under Sections 376(2)(g) and 458 of IPC against the appellant and Pagala Hati and separately charged Rinku @ Rintu Singh under Section 376(2)(a) of IPC. They having pleaded not guilty to the charge, faced trial. Prosecution has examined 16 witnesses and also exhibited 11 documents in order to bring home the charge against the appellant and two others. In their defence, they had examined themselves as defence witnesses. On conclusion of trial, placing reliance on the evidence of the victim and other prosecution witnesses, the trial Court returned the judgment of conviction and order of sentence as stated earlier. The appellant has only challenged the impugned judgment of conviction and order of sentence in this appeal. 4. The learned Amicus Curiae contends that the conduct of the victim is apparent on record and there being no independent corroboration of such statement of the victim, placing absolute reliance on such witness is against the settled principle of law and urged to interfere with the impugned judgment of conviction. 5. Learned counsel for the State, however, drawing notice of this Court to the evidence of the victim and the settled law on the subject submits that the victim having no animosity against the appellant, the impugned judgment of conviction does not call for any second opinion. 6. To appreciate the rival contentions raised at the Bar, I have carefully scrutinized the evidence of P.W.1 keeping in mind the settled principle of law as held by the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vrs. State of Gujarat, AIR 1983 S.C. 753 wherein it has been held as follows :- “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. State of Gujarat, AIR 1983 S.C. 753 wherein it has been held as follows :- “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. 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. 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. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in-assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basis infirmity, and the ‘probabilities-factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification; Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the ‘probabilities-factor’ is found to be out of tune. Overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the version narrated by the witnesses.” 7. Keeping in mind the aforesaid, when the evidence of the victim is addressed, she being examined as P.W.3 categorically stated that when she was staying at Bandamunda in the house of her relative, namely, Bijili Kindo and prosecuting her study in +2 first year in Bisra College, on the intervening night of 26/27.09.2004 at about 1 a.m., the appellant and non-appellant – Pagala Hati trespassed into the room, gagged her mouth and at the knife point they committed rape on her one after the other. Despite struggle of the victim in that odd hour of the night where she was alone in the house. As it appears from her evidence, the aforesaid accused persons were not known to victim earlier, but thereafter the accused, namely, Rintu, told her that he knew their name and took her to his brother’s house at Kapatmunda where he also committed rape on her on 30.09.2004. It appears that the matter was thereafter reported to the police vide Ext.7. In her evidence, the victim stated that she had earlier identified the appellant and non-appellant – Pagala Hati in a T.I. parade. In the cross-examination of the victim, nothing has been elicited to discard her such evidence. It appears that the matter was thereafter reported to the police vide Ext.7. In her evidence, the victim stated that she had earlier identified the appellant and non-appellant – Pagala Hati in a T.I. parade. In the cross-examination of the victim, nothing has been elicited to discard her such evidence. Her version that she was successfully raped, finds absolute corroboration from the evidence of the Medical Officer (P.W.11) who has noticed Labia Minora, both side congested, hymeneal tear present at 7, 2 and 5 O’ clock position at the time of her examination. The Medical Officer has also opined that recent sexual intercourse cannot be ruled out. Only because the victim was habituated to sexual intercourse, that by itself is no ground to discard the victim as untrustworthy. In this regard, a reliance can be placed on a decision of this Court in the case of Lakhia @ Laxmidhar Sahu vrs. State, (1997) 12 OCR 259, wherein it has been held as follows :- “…….It must also be remembered that the reaction of the vaginal mucosa to a penetrating foreign body is to lubricate, and therefore even in non-consenting intercourse there will be a certain amount of lubrication produced during the act, even if lubrication was lacking on initial penetration. The frequently repeated myth that the vagina will remain dry in non-consenting intercourse with the resulting production of serious abrasion and bruising is entirely untrue. In the case of sexually experienced women, and those who have born children, signs of even the most minor vaginal injury may well be absent. This Court in the case of Dinabandhu Behera vrs. State of Orissa, reported in (1995) 8 OCR 123, has held as follows :- “Absent of injuries on the person of the victim may not be fatal to the prosecution and corroborative evidence may not be an imperative component of judicial credence in rape cases.” Thus absence of injury cannot be a factor to rule out the allegation of rape.” It being a case of gang rape, the question of consensual sexual intercourse is ruled out. 8. 8. Since the version of the victim in this case stood unrebutted and her version has been corroborated in material particulars by her friends and family members and medical evidence when also lends absolute assurance on her version, on re-appraisal of the evidence, I find that the learned trial Court has rightly accepted the prosecution case and there is no reason to differ and disagree with such findings. 9. So far as the extent of sentence is concerned, it appears that the sentence imposed is commensurate to the facts and circumstances of the case and there are no mitigating circumstances to take a lenient view with regard to the sentence. 10. Resultantly, for the foregoing reasons, I find no merit in this criminal appeal and, accordingly, it stands dismissed. The impugned judgment of conviction and order of sentence recorded by the learned Addl. Chief Judicial Magistrate-cum- Asst. Sessions Judge, Rourkela are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of the Judgment. Appeal dismissed.