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2016 DIGILAW 416 (ORI)

Bhakta Kisan v. State of Orissa

2016-06-03

D.DASH

body2016
JUDGMENT : The appellant having been convicted by the learned Adhoc Additional Sessions Judge, Sundargarh in S.T. No.23/7 of 2010 for commission of offence under section 376(2)(g) of the I.P.C. and sentenced to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month has filed this appeal in assailing the finding of guilt recorded against him as also the sentence that he has been visited with. 2. Prosecution case is that on 12.07.2009, it was between 1 to 1.30 P.M. the victim girl P.W.6 was on her way to the market. It is stated that when she arrived near Bharat Gas Godown situated by the side of the State Highway, accused Bijaya Majhi with four others including the present appellant forcibly dragged her near the boundary wall of the godown. It is alleged that accused-Bijaya and the appellant entered inside the premises of the gas godown by scaling over the boundary wall and then the three other accused persons lifted the victim so as to facilitate Bijaya and this appellant to take her inside the premises of the gas godown. It is further alleged that thereafter accused-Bijaya forcibly undressed the victim, laid her on the ground with her face upward and did sexual intercourse upon her. During the process, the appellant assisted the accused-Bijaya by holding the hands of the victim and gagging in seeing that no resistance is aired. Still when the victim did not remain silent accused-Bijaya had slapped her. It is stated that one Tibraj Rohidas-P.W.3 was then passing nearby and hearing the cry of the victim, she with other co-villagers, including P.W.2 went near the godown and found those four boys sitting on the boundary wall when accused-Bijaya was sleeping over the victim inside the godown. All of them fled away at their sight. Although they made the attempt to apprehend them, yet the same did not succeed. Thereafter, they saw the victim lying inside the godown in an unconscious state being naked, with her garments lying scattered. She was shifted to the District Headquarter Hospital, Sundargarh for necessary treatment. The police arrived at the spot on receiving information about the incident and one Sukanta Rohidas-P.W.2 lodged the F.I.R. before the I.I.C. of Town Police Station. Necessary case having been registered, the investigation commenced. She was shifted to the District Headquarter Hospital, Sundargarh for necessary treatment. The police arrived at the spot on receiving information about the incident and one Sukanta Rohidas-P.W.2 lodged the F.I.R. before the I.I.C. of Town Police Station. Necessary case having been registered, the investigation commenced. In course of investigation, the investigating officer visited the spot, recorded the statement of the witnesses including the victim after she regained her sense in the hospital, collected the medical examination reports, seized the wearing apparels of the victim and finally could only apprehend the present appellant. In view of such apprehension of the appellant, the Investigating Officer made a prayer for holding the Test Identification Parade in so far as the appellant was concerned which was so held. The incriminating articles were sent for chemical examination. Finally on completion of the investigation, charge-sheet was laid against this appellant and three others. Due to non-apprehension of the other accused persons, the case against this appellant was spilt up and it was committed to the Court of Sessions which ultimately came to be tried by the learned Adhoc Additional Sessions Judge, Sundergarh. 3. During trial, the prosecution examined as many as 10 witnesses including the victim-P.W.6, the independent witnesses including the informant, medical officer and other witnesses to the seizure as also the investigating officer. From the side of the prosecution, F.I.R. has been admitted in the evidence and marked as Ext.2, the medical examination report of the victim has been marked as Ext.4 as also the T.I. parade report as Ext.10 besides the other documents, such as, the seizure list, spot map, chemical examination report etc. 4. The trial court as is seen from the judgment having formulated the points required for determination as regards the factual aspect of the case concerning the allegations levelled against the appellant has taken up the exercise of examination of evidence and their scrutiny to find out if those have been proved. It has ultimately recorded the answer in favour of the prosecution in saying that this appellant is guilty for commission of offence under section 376 (2)(g) of the I.P.C. and accordingly sentenced as stated above has been awarded. 5. It has ultimately recorded the answer in favour of the prosecution in saying that this appellant is guilty for commission of offence under section 376 (2)(g) of the I.P.C. and accordingly sentenced as stated above has been awarded. 5. Learned counsel for the appellant submits that the evidence of P.W.6-the victim in so far as the role said to have been played by this appellant is not acceptable as it is without any corroboration from independent sources on material particulars. For the purpose, he has taken the pain of placing the evidence of P.W.6 line by line as also P.Ws.1, 2 and 3. According to him, the evidence being cumulatively viewed, this appellant’s role as attributed by the prosecution cannot be said to have been proved beyond reasonable doubt. Therefore, he urges for to set at naught the finding that the appellant is guilty for the said offence under section 376(2)(g) of the I.P.C. Thus, he submits that the judgment of conviction and the order of sentence as passed by the trial court are vulnerable and liable to be set aside. 6. Learned Additional Standing Counsel contends that the evidence of P.W.6, the victim who is aged about 10 years is totally free from any such suspicious feature so as to even seek any corroboration from other sources on material particulars. It is his contention that this appellant was not known to the victim before hand and he has been duly identified by the victim during trial which has received due corroboration from the earlier identification in course of test identification parade as proved in this case. So, according to him, there remains no reason to say for a moment that the victim had any axe to grind against this appellant. It is submitted that the evidence of the victim is clear, cogent and acceptable in describing the part played by the appellant in the crime scenario and her testimony wholly reliable. So, he contends that the trial court has rightly convicted the appellant for the offence for which he stood charged and has sentenced him accordingly. 7. In view of above rival submission, now the prosecution evidence are required to be scanned so as to test the sustainability of the finding of guilt recorded by the trial court against the appellant. 8. 7. In view of above rival submission, now the prosecution evidence are required to be scanned so as to test the sustainability of the finding of guilt recorded by the trial court against the appellant. 8. It may be kept in mind that there is no legal bar for the court to base a finding and record conviction for the offence of rape placing reliance on the solitary testimony of the victim, if the same is found to be worthy of credence. It is not the absolute rule of law that the solitary testimony must receive corroboration from independent sources so as to form the basis of a finding of guilt. The corroboration is not always the requirement. However, corroboration is insisted upon when the solitary testimony of the victim is not found to be trustworthy. 9. The star witness for the prosecution in this case is the victim-P.W.6. When she has stated her age to be 10 years, the assessment of the court during the examination stands that she was by then about 14 years of age. She has stated that when on the date of occurrence she was going to bazaar around 1 P.M. near Bharat Gas Godown accused-Bijaya dragged her forcibly and four persons associated with him including the appellant who has been identified caught hold up her and took her to the side of the boundary wall of the godown. She has further stated that as to how she was finally taken inside the godown by accused-Bijaya and so far as the role of the appellant is concerned, her evidence is specific and pinpointed that when accused-Bijaya was sexually assaulting her, this appellant had caught hold her hands by force and gagged her so as to prevent her from raising any hulla and pose any resistance. She has further stated that during the incident she lost her sense and that she regained around 5 P.M. when she found herself in the hospital and immediately thereafter she claims to have narrated the incident before the police. The narration goes like natural flow. She has also stated to have identified this appellant in the test identification parade held inside the District Jail in presence of the Magistrate stating about the role in nutshell played by this appellant in the said incident. During cross-examination, she has further reiterated about the presence of this appellant. The narration goes like natural flow. She has also stated to have identified this appellant in the test identification parade held inside the District Jail in presence of the Magistrate stating about the role in nutshell played by this appellant in the said incident. During cross-examination, she has further reiterated about the presence of this appellant. So far as the incident is concerned right from the beginning still she regained her sense despite scathing cross-examination, no such material appears to have been surfacing on record so as to doubt her testimony of any of the above aspects. The medical evidence fully corroborates the version of this victim that recent sign and symptom of sexual intercourse had been noticed. The witnesses arriving shortly after the incident of rape have consistently deposed about the presence of the appellant and as to how he took to his heels at their sight. There remains no such material on record even to remotely suggest as to why this minor victim would choose this appellant in roping him in the said crime. 10. Thus, I find that P.W.6-the victim is a wholly reliable witness and her testimony is accordingly found to be above board so as to be accepted in so far as the role of the appellant in the entire incident is concerned. This clearly leads to conclude that the prosecution in has successfully proved its case beyond reasonable doubt against the appellant and for that he has been rightly fastioned with the finding of guilt for commission of offence under section 376(2)(g) of the I.P.C., which needs no interference. The sentence as imposed is also found to be just and proper. Accordingly, the judgment of conviction and order of sentence which have been impugned in this appeal are hereby confirmed. 11. In the result, the appeal stands dismissed.