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2016 DIGILAW 1155 (ORI)

Satyabadi Sahoo v. State of Orissa

2016-11-24

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No.129 of 2010 on the file of the Addl. Sessions Judge (FTC), Athagarh. The learned Addl. Sessions Judge (FTC), Athagarh vide the impugned judgment and order held the appellant (hereinafter referred to as “the accused”) guilty of the charge under Section 376 of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.5000/-, in default, to undergo further R.I. for six months. 2. The prosecution allegation against the accused as embodied in the judgment of the learned trial Court in nutshell is that on 23.08.2009 around 10 a.m. the victim, a 25 years old virgin while enroute home after taking bath in a village pond, the accused, a 55 years old man, in an erotic impulse caught hold of the victim finding her alone in a isoloated place, overpowered her, gagged her mouth and committed sexual intercourse against her will and without her consent. The crestfallen victim with tears rolling over her cheek, in pain and agony disclosed that aweful incident before her parents and other inmates of the house. Having heard that episode from the victim, the father disclosed the fact before several villagers, rushed to the house of the accused to find out him and thereafter at 7 p.m. lodged a written report before the O.I.C. at Tigiria Police Station whereupon Tigiria P.S. Case No.78 of 2009 was registered, investigation taken up, the victim as well as the accused was subjected to medical examination and on completion of investigation, charge-sheet under Section 376 of IPC was laid against the accused. In accordance with law, the case was committed to the Court of Session where charge was framed against the accused under Section 376 of IPC, to which the accused pleaded not guilty to the charge and claimed to be tried whereafter prosecution examined thirteen witnesses including the doctor who had examined the victim and the accused as well as the Investigating Officer. Over and above, the prosecution had exhibited 11 documents to substantiate its case. The defence had examined one witness in his defence. On conclusion of the trial, the learned trial Court held the accused guilty and sentenced him as aforesaid. 3. Over and above, the prosecution had exhibited 11 documents to substantiate its case. The defence had examined one witness in his defence. On conclusion of the trial, the learned trial Court held the accused guilty and sentenced him as aforesaid. 3. In assailing the judgment of conviction and order of sentence, the learned counsel for the accused submits that evidence of the victim is studded with infirmities in material particulars and when evidence of the Medical Officer does not show any injuries on the private parts of the victim and when the taletell circumstances belies the prosecution case, the judgment of conviction and order of sentence are unsustainable. 4. Per contra, the learned Addl. Government Advocate appearing for the State supports the impugned judgment, the evidence of the victim when inspires confidence and there is no basic infirmity to discard such witness. 5. Before I delve into the controversy, it would be expedient to quote some basic principle of law in the background of which I would like to re-examine the evidence brought on record to reach at a reasonable and possible conclusion as to the guilt or otherwise of the accused. The Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vrs. State of Gujarat, AIR 1983 S.C. 753 have held as follows :- “In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.” At paragraph-11 of the aforesaid decision, the Apex Court have further held as under :- “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 notwithstanding. 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 notwithstanding. And while 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 (obeisance to which has perhaps become a habit presumably on account of the colonial hang-over). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic 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 leveled such an accusation on account of the instinct of self-preservation. Or when the ‘probabilities factor’ is found to be out of tune.” 6. In the aforesaid legal scenario, I would like to add that in a matter of rape, the testimony of the prosecutrix must be given primary consideration, but at the same time broad principles that prosecution has to prove its case beyond reasonable doubt applies equally and there can be no legal presumption that prosecutrix would always tell the entire story truthfully. On principle, the evidence of a victim of sexual assault stands on par with evidence of an “injured witness”. 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/she is least likely to exculpate the real offender, the evidence of a victim of sex-offence is entitled to great weight, absence of corroboration notwithstanding and while corroboration in the form of eyewitness account of an independent witness, may often be forthcoming in physical assault cases, such evidence cannot be expected for sex-offence, having regard to the very nature of the offence. It would, therefore, appear that conviction can be based on the sole testimony of the prosecutrix if the credibility of the prosecutrix has been tested and it does not suffer from any blemish or suspicion and impresses the Court as wholly truthful, natural and so convincing that the Court has no hesitation in recording conviction solely on the testimony of the prosecutrix. 7. Keeping in mind the aforesaid, when I sifted the judgment of the learned trial Court vis-à-vis the evidence of P.Ws. & D.Ws. with care and caution, I find the learned trial Court has discussed the evidence of the victim, her parents and brother in threadbare. The victim has been examined as P.W.4. She has narrated the incident in a very natural manner without any apparent addition or omission from her earlier statement made before the police as well as before her parents as she was not contradicted by the defence in relation to the same in any manner though an incisive cross-examination was made by the defence. Immediately after the occurrence she has narrated the incident in details before her parents and brother who have been examined as P.Ws.1, 5 and 6 respectively. Her conduct is in consonance with the provisions of Sections 6 & 8 of the Indian Evidence Act. It is spontaneous statement connected with fact in issue and there was no gap for consultation and fabrication made out. Apparently, she has no axe to grind against the accused. Her evidence also reveals that the accused squeezed her breast, kissed on her cheek, gagged her mouth and forcibly laid her on the ground and inserted his male organ into her female genitalia. Nothing has been brought out in the cross-examination to discard her evidence outright. Apparently, she has no axe to grind against the accused. Her evidence also reveals that the accused squeezed her breast, kissed on her cheek, gagged her mouth and forcibly laid her on the ground and inserted his male organ into her female genitalia. Nothing has been brought out in the cross-examination to discard her evidence outright. She had sustained pain on her private part when the accused inserted his male organ and in that process she also sustained some injuries on her back and hand. She denies the defence suggestion of false implication. Her evidence has been corroborated in material particulars from the evidence of P.Ws.1, 5 and 6. The evidence of doctor (P.W.9) reveals that he noticed two abrasions on the back, one abrasion on the right hand and one abrasion on mid portion of the back, though the doctor did not notice any visible symptoms of recent sexual intercourse. Highlighting such evidence of the doctor, the learned counsel for the accused submits that when the victim was subjected to sexual intercourse and when the doctor did not notice any recent sign of sexual assault, the evidence of the victim cannot be said to be overboard. Incidentally, the doctor noticed mark of injuries on the back of the victim as deposed to her. How she sustained such injuries being not suggested to the doctor and the victim, the version of the victim that when the accused forcibly laid her on the ground she sustained those injuries, cannot be ruled out. Moreover, absence of mark of recent sexual intercourse does not affect the credibility of a victim since injuries on private part also depends upon the anatomy of the persons concerned. That apart, the victim has stated that the accused inserted his male organ into her genitalia but left her within minute. This material piece of evidence also suggests the cause of absence of injuries. Apparently, no violence used while committing the act. All such aspects have been dealt with by the learned trial Court threadbare keeping in view the law on the subject. Here, the testimony of the victim is found natural and convincing. Why she would raise her accusing finger against a person against whom she had no animosity and that too against her social status. All such aspects have been dealt with by the learned trial Court threadbare keeping in view the law on the subject. Here, the testimony of the victim is found natural and convincing. Why she would raise her accusing finger against a person against whom she had no animosity and that too against her social status. Ordinarily, a victim of rape would be reluctant to divulge such incident before others least people suspected her chastity with a certain amount of suspicion treating her as if she were an accomplish. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a causality. Since there is no discrepancy of fatal nature and otherwise when the entire story given by the victim and her parents found reliable, the inherent bashfulness and feminine tendency to conceal the outrage of masculine sexual aggression are factors which can not be overlooked. To conclude, when the evidence of the victim and her parents does not suffer from any basis infirmity, and the probabilities factor, does not render it unworthy of credence and particularly when the evidence of the victim sieve through the judicial colander and passes through the gauges, absolute reliance can be placed on the testimony of the victim. In such circumstances, it is to be accepted even if it were not corroborated by medical evidence as to the injuries on her private parts which found inherent in the evidence of the victim and there is ring of truth around her evidence. The learned trial Court has placed absolute reliance on such evidence. The impugned judgment of the learned trial Court is well written and well reasoned and it does not call for a second opinion. When the victim was subjected to sexual intercourse by the accused against her will and without her consent, finding the accused guilty under Section 376 of IPC cannot be found fault with. The sentence imposed being commensurate to the facts and circumstances and there being no mitigating circumstances to take a different view, this Court is also of the opinion that the same also needs no interference. 8. Resultantly, this criminal appeal stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. The sentence imposed being commensurate to the facts and circumstances and there being no mitigating circumstances to take a different view, this Court is also of the opinion that the same also needs no interference. 8. Resultantly, this criminal appeal stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal dismissed.