Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1113 (ORI)

Jaya Chandra Pradhan v. State of Orissa

2016-11-17

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. The petitioner Jaya Chandra Pradhan faced trial in the Court of learned Asst. Sessions Judge, Bhanjanagar in Sessions Case No.31 of 1994 (S.C. No.281/94 G.D.C.) for offences punishable under Sections 448/376/323/506 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 22.02.1995 found the petitioner guilty of the offences under Sections 448/376/323/506 of the Indian Penal Code and sentenced him to undergo R.I. for a period of five years and to pay a fine of Rs.1,000/- (Rupees one thousand), in default, to undergo R.I. for three months under Section 376 of the Indian Penal Code, R.I. for one year: for the offence under Section 448 of the Indian penal Code, R.I. of six months for the offence under Section 323 of the Indian Penal Code and R.I. for one year for the offence under Section 506 of the Indian Penal Code and all the substantive sentences were directed to run concurrently. The petitioner preferred an appeal before the Court of Session which was heard by learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Berhampur in Criminal Appeal No.64 of 1998 (Criminal Appeal No.54/95 G.D.C.). The learned Appellate Court vide impugned judgment and order dated 19.02.1998 upheld the impugned judgment and order passed by the learned Trial Court and dismissed the criminal appeal, hence the revision. 2. The prosecution case, as per the First Information Report lodged by victim "S" before the officer in charge, Buguda Police Station on 02.06.1994 is that on that day at about 8.00 a.m. while her husband was not present in the house and she was preparing to cook food inside her house, due to previous enmity, the petitioner forcibly entered inside her house and attempted to outrage her modesty and when she shouted, the petitioner gagged her mouth by means of a towel and then took her to the backyard of the house, brought a stick from the fence and assaulted on her right thigh as a result of which the victim fell down on the ground. At that point of time, Natabar Gouda (P.W.5) and Tuna Pradhan (P.W.8) came there and seeing the incident, protested the petitioner but the petitioner drove them away. At that point of time, Natabar Gouda (P.W.5) and Tuna Pradhan (P.W.8) came there and seeing the incident, protested the petitioner but the petitioner drove them away. It is further stated in the First-Information Report that while the victim was lying as such in the backyard, the petitioner further tried to assault her and also outraged her modesty and squeezed her breast and then left the place giving threat to her that he along with others would loot her properties and thereafter would rape her and in case the matter is reported at the Police Station, the victim and her husband would face dire consequence. It is further stated in the First Information Report that the husband of the victim getting the message about the incident from somebody came to the house and thereafter, the victim came to the Police Station along with her husband and reported the matter. On the basis of the First Information Report, Buguda P.S. Case No.61 of 1994 was registered under Section 452/376/323/506 of the Indian Penal Code and Dillip Kumar Mohanty (P.W.12), officer in charge of Buguda Police Station himself took up investigation of the case. During course of investigation, he examined the informant (P.W.1), made spot visit, examined the witnesses and seized the wearing saree of the victim under seizure list Ext.7, sent both the victim and the petitioner for medical examination to M.K.C.G. Medical College & Hospital, Berhampur under medical requisitions. On 05.06.1994 the investigating officer seized the wearing apparels of the petitioner under seizure list Ext. 2, he also seized six packets containing vaginal swab of the victim, pubic hair of the victim, foreign fair, nail clippings on being produced by the constable under seizure list Ext.1. The petitioner was taken into custody and he was forwarded to the Court and then the investigating officer dispatched the material objects for chemical examination to the D.F.S.L., Chatrapur and received the reports subsequently. He has also received the medical examination reports of the petitioner and the victim from the professor of M.K.C.G. Medical College & Hospital, Berhampur and subsequently on 29.07.1994 he handed over the charge of the investigation to Sub-Inspector of Police Harihar Swain (P.W.11) who on receipt of the direction of the Superintendent of Police Ganjam submitted the charge sheet on 12.08.1994 under Sections 448/376/323/506 of the Indian Penal Code. 3. 3. After submission of charge sheet, the case was committed to the Court of Session after observing the due committal procedure and it was transferred to the learned Asst. Sessions Judge, Bhanjanagar for trial where the learned Trial Court framed charges against the petitioner and since the petitioner refuted the 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 establish its case, the prosecution examined twelve witnesses. P.W. 1 is the victim. P.W. 2 Gandharba Gouda is the husband of the victim who accompanied her to the Police Station to lodge the first information report. P.W.3 Rajani Arukhstated that he saw the petitioner abusing the victim in the backyard of her house. P.W.4 Bijaya Kumar Pradhan stated that P.W. 2 came to her house and stated before him that P.W.1 has been raped by the petitioner and accordingly, he advised him to take shelter of Police. P.W.5 Natabar Gouda stated to have seen the petitioner poking a lathi into the private part of the victim and further stated that when he objected, the petitioner pushed him back. P.W. 6 Khatia Patra is a witness to the seizure of different articles. P.W.7 Hari Naik is also a witness to the seizure of the lungi of the petitioner. P.W.8 Tuna Pradhan did not support the prosecution case for which he was declared hostile by the prosecution. P.W. 9 Dr. Padma Charan Sahu was the lecturer in F.M.T., M.K.C.G. Medical College & Hospital, Berhampur who examined the petitioner as well as the victim on 03.06.1994 and proved the medical reports. P.W.10 Niranjan Arukh stated that P.W.2 came to his house and told him that the petitioner had raped the victim and then he took the victim to P.W. 4 who was the Sarapanch of the village who advised P.W.2 to take the shelter of the Police. He further stated to have accompanied P.W.1 and P.W. 2 to Buguda Police Station to lodge the First Information Report. P.W.11 Harihar Swain and P.W. 12 Dillip Kumar Mohanty are the Investigating Officers. The prosecution exhibited twelve documents, Exts.1 and 2 are the seizure lists, Exts. 3, 4 and 5 are the medical examination reports, Ext.6 is the written report, Ext. 7 is the seizure list, Exts. 8 and 9 are the medical requisitions, Ext. P.W.11 Harihar Swain and P.W. 12 Dillip Kumar Mohanty are the Investigating Officers. The prosecution exhibited twelve documents, Exts.1 and 2 are the seizure lists, Exts. 3, 4 and 5 are the medical examination reports, Ext.6 is the written report, Ext. 7 is the seizure list, Exts. 8 and 9 are the medical requisitions, Ext. 10 is the carbon copy of letter, Ext. 11 is the chemical examination report and Ext. 12 is the forwarding report of the exhibits for chemical analysis. The prosecution also proved two material objects. M.O.I. is the Lungi and M.O.II is the Saree. 5. The defence plea of the petitioner was one of denial and it was pleaded by the petitioner that the victim and her husband were working in the house of one Niranjan Arukh (P.W.10) with whom the petitioner had dispute in connection with of school matter for which the said Niranjan Arukh gained over the husband of the victim and foisted the case. The petitioner examined herself as D.W. 1. 6. The learned Trial Court has been pleased to hold that the statement of the victim is further reinforced by the opinion of the doctor and all the circumstances point at the petitioner to be guilty of rape and the probabilities factor are so overwhelming that minor discrepancies here and there do not corrode the prosecution case. It was further held that the defence plea has not been substantiated by any cogent evidence. The learned Appellate Court held that the victim was examined by P.W. 9 on 03.06.1994 at noon and the occurrence had taken place on 02.06.1994 at about 8.00 or 9.00 a.m. which was beyond twenty four hours and therefore, the evidence of the victim regarding commission of rape on her could not be disbelieved. The learned Appellate Court further held that the evidence of the victim, the evidence of doctor P.W. 9 and his reports Exts. 3, 4 and 5 have been rightly accepted by the learned Trial-Court holding the petitioner guilty of the offence under section 376 of the Indian Penal Code. 7. Mr. Swayamjit Rout, learned Couf1sel for the petitioner contended that the prosecution version is full of improbability features which have not been duly taken care of by the learned Courts below. He further contended that possibility of false implication of the petitioner in view of the previous enmity cannot be ruled out. 7. Mr. Swayamjit Rout, learned Couf1sel for the petitioner contended that the prosecution version is full of improbability features which have not been duly taken care of by the learned Courts below. He further contended that possibility of false implication of the petitioner in view of the previous enmity cannot be ruled out. He further contended that the medical examination report rule out the commission of rape on the victim. Learned Counsel further contended that in absence of any semen stains or foreign hairs in her private part as opined by the doctor, the prosecution case should have been viewed with suspicion. Learned Counsel for the petitioner further contended that since both the Courts below overlooked the materials available on record and accepted the statement of the victim without considering the improbability features, the judgments and orders of conviction of the petitioner is not sustainable in the eye of law. Mr. Tusar Kumar Mishra, learned Additional Standing Counsel on the other hand submitted that the statement of the victim gets corroboration from P.W. 5 and her conduct in disclosing about the incident before her husband and also her medical examination report clearly establishes the commission of offence by the petitioner. Learned counsel for the State further submitted that law is well settled that the solitary testimony of the prosecutrix, if found to be reliable can be accepted and no corroboration is necessary. He placed reliance in the case of Rajinder @ Raju vrs. State of Himachal Pradesh reported in (2009) 16 SCC 69 . Learned Counsel for the State also placed reliance in the case of Gananath Jena -Vrs.- State of Orissa reported in 1996 Criminal Law Journal 229 wherein it was held that mere absence of injuries on the body of victim is not ground to disbelieve her testimony. It is the contention of the learned counsel for the State that since both the Courts below. have scanned the evidence and discussed the oral as well as medical evidence of the victim and accepted the prosecution case, it would not be proper in exercise of the revisional jurisdiction to disturb such concurrent findings of fact and therefore, the revision petition should be dismissed. 8. have scanned the evidence and discussed the oral as well as medical evidence of the victim and accepted the prosecution case, it would not be proper in exercise of the revisional jurisdiction to disturb such concurrent findings of fact and therefore, the revision petition should be dismissed. 8. Considering the rival submissions made by the respective parties and on going through the First Information Report, it appears that the petitioner made an attempt to commit the crime at about 8 O’clock in the morning when the husband of the victim was not present in the house and she was alone in her house. The statement of the victim indicates that while she was preparing the food in her kitchen, the petitioner came to her house and abused her and her husband in his absence. When the victim protested, the petitioner threatened her to lift to BHALIA TOTA and to rape her. It was then the petitioner went and picked up a stick from the fence and poked it on her thigh and then closed the door of the house and raped her forcibly. It appears to me an improbable feature that when the petitioner first came to the house and abused the victim and her husband in his absence and threatened to rape the victim anti then went to the fence to bring a stick, the victim would not even take any preventive steps. In ordinary course of nature, it was expected on the part of the victim either to close the door or to shout to draw the attention of others residing in the neighbourhood. The victim has stated that after the petitioner closed the door of the house and raped her, she raised hullah for which the petitioner gagged her mouth but hearing her shout, P.W. 5 Natabar Gouda arrived at her house and the petitioner drove him out of his house by giving pushes and when P.W. 5 went away, the petitioner brought the victim out of the house and assaulted her in the backyard of the house. In the First Information Report, however it is mentioned that when an attempt was made to rape the victim inside the house, she shouted for which the petitioner gagged her mouth and then brought her to the backyard, brought a stick from the fence and assaulted her on the right thigh and at that point of time P.W.5 and P.W. 8 were there and protested the petitioner. The statement of the victim that P.W. 5 came to her house while the petitioner was committing rape on her and that P.W. 5 raised protest is not corroborated by P.W.5 who has stated that on the date of occurrence while he was going to the thrashing floor, he saw the petitioner abusing P.W.1 and then poked a lathi to the vagina of P.W. 1. Thus the evidence of P.W. 1 and P.W. 5 contradicts each other. The victim has stated that when she was assaulted in the backyard of the house, at that point of time about 40 persons gathered around her house and they were all her co-villagers. If the petitioner intended to commit a crime in absence of any family members in the house of the victim while she was alone, after committing the act, it was expected on the part of the petitioner to leave the spot immediately. The statement of the victim that after committing the act inside the house, the petitioner took her to the backyard, shouted at her and assaulted her which drew the attention of number of co-villagers appears to be an improbable feature. The victim was a grown up married lady and when the petitioner was making an attempt of rape on her, ordinarily it was expected on her part to take preventive steps to save herself from the attempt of rape and in such a scenario, the injuries on her person so also on the person of the petitioner would have naturally occurred. The doctor (P.W.9) who examined the petitioner on the next day of occurrence has stated that on physical examination, he found no injury on the person of the petitioner. He further stated that there was no sign of recent sexual intercourse and there was no injury on the private part except old tear in the frenum of penis. The doctor stated that recent sexual intercourse means within 48 hours of the examination. He further stated that there was no sign of recent sexual intercourse and there was no injury on the private part except old tear in the frenum of penis. The doctor stated that recent sexual intercourse means within 48 hours of the examination. Therefore, it can be said that the manner in which the victim has narrated the incident to have taken place is not corroborated by the medical evidence. Though P.W. 5 has stated that he had seen in the backyard of the house of P.W. 1 that the petitioner poked a lathi to the vagina of P.W. 1 but P.W. 1 has not stated so in her evidence rather she has stated that inside the house, the petitioner poked a stick on her thigh. In the First Information Report, it is stated that after the victim was taken out of the house to the backyard, the petitioner brought a stick from the fence and utilized it in assaulting the victim on her right thigh. Therefore, the narration made in the First Information Report regarding the assault on the victim and her evidence in Court so also the evidence of P.W. 5 are contradictory to each other. The victim has stated that the petitioner raped her for about 5 minutes and before that she struggled to escape from his clutches but the petitioner lied her down forcibly on the ground and thereafter he made her naked and despite her protest, he committed rape on her on the earth floor. The report of the Doctor (P.W. 9) indicates no injury on her back. The medical evidence which has been proved by the prosecution falsifies the manner in which the victim has stated the occurrence to have taken place. The chemical examination report indicates that in the saree of the victim and check lungi of the petitioner which were sent for chemical analysis to the District Forensic Science Laboratory, Chatrapur, seminal stains could not be detected. 9. In view of the above discussions, it is found that the evidence of the prosecutrix when read as a 'whole and compared with the First Information Report presented by her and the other evidence are full of discrepancies and it does not inspite confidence. The gaps in the evidence, several discrepancies in the evidence and other circumstances make it highly improbable that the petitioner committed an offence as alleged by the prosecution. The gaps in the evidence, several discrepancies in the evidence and other circumstances make it highly improbable that the petitioner committed an offence as alleged by the prosecution. When the Courts below have not taken into consideration the material evidence on record properly and approached the evidence in a very casual manner and have not considered the improbability features of the prosecution' case, in exercise of the revisional jurisdiction, this Court has a duty to scan the evidence in order to prevent the miscarriage of justice. Accordingly, I am of the view that the impugned judgments and orders of conviction of the petitioner under Sections 448, 376, 323 and 506 of the Indian Penal Code is not sustainable in the eye of law and therefore, the same is liable to be set aside. In the result, the revisional petition is allowed and the petitioner is acquitted of the charges under Sections 448, 376, 323 and 506 of the Indian Penal Code. The petitioner is on bail by virtue of the order of this Court. He is discharged from liability of his bail bonds. His personal bonds and the surely bonds stand cancelled. Petition allowed.