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2017 DIGILAW 1069 (ORI)

Birsing Munda v. State of Orissa

2017-09-16

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Birsing Munda faced trial in the Court of the learned Asst. Sessions Judge, Jajpur Road in C.T. Case No.275 of 2013 / C.T. Case No.67 of 2013 for the offences punishable under sections 341/376/506 of the Indian Penal Code for wrongfully restraining the victim on 28.02.2013 at about 2.00 p.m. while she was returning home after taking bath and taking her forcibly inside the orchard situated near Damasala Nala of village Ghagiasahi under Kaliapani police station and committing rape on the victim and also criminally intimidating her. The learned Trial Court vide impugned judgment and order dated 09.07.2014 though acquitted the appellant of the charge under section 506 of the Indian Penal Code but found him guilty under sections 341/376(1) of the Indian Penal Code and sentenced him to undergo S.I. for one month for the offence under section 341 of the Indian Penal Code and further sentenced him to undergo R.I. for a period of seven years and to pay a fine of Rs.2000/-(rupees two thousand), in default, to undergo imprisonment for two months more for the offence under section 376 (1) of the Indian Penal Code and the substantive terms of imprisonment were directed to run consecutively. 2. The prosecution case, as per the First Information Report lodged by the victim girl is that on 28.02.2008 afternoon at 2.00 p.m., she had been to Damsala Nala near her village Ghagiasahi for bathing and after taking bath, while she was returning home, on the way the appellant wrongfully restrained her and forcibly lifted her to a nearby orchard and committed rape on her. On return to her house, the victim disclosed about the occurrence to her uncle and aunt in absence of her parents and thereafter they came to Kaliapani police station and reported the matter in writing. 3. On the basis of such FIR lodged before the Inspector–in-charge, Kaliapani Police Station, Kaliapani P.S. Case No.14 of 2013 was registered on 28.2.2013 for the offence under section 376 of the Indian Penal Code against the appellant. P.W.14 Bishnu Charan Panda, S.I. police was directed to take up investigation of the case. During course of investigation, P.W.14 examined the informant as well as other witnesses and seized the wearing apparels of the victim. He also arrested the appellant and seized his wearing apparels in presence of the witnesses. P.W.14 Bishnu Charan Panda, S.I. police was directed to take up investigation of the case. During course of investigation, P.W.14 examined the informant as well as other witnesses and seized the wearing apparels of the victim. He also arrested the appellant and seized his wearing apparels in presence of the witnesses. He examined the seizure witnesses and visited the spot and sent the victim and the appellant for their medical examination and opinion through police escort party. The appellant was forwarded to Court on 02.03.2013. He also seized the exhibits collected by the Medical Officer, C.H.C., Sukinda in presence of the witnesses and on his prayer, the seized exhibits were sent for chemical examination by the Magistrate. He received the medical examination reports of the victim and the appellant and after completion of investigation; he submitted charge-sheet against the appellant on 09.05.2013 under sections 341/376/506 of the Indian Penal Code. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under sections 341/376/506 of Indian Penal Code and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. During course of trial, in order to prove its case, the prosecution examined seventeen witnesses. P.W.1 is the victim who is also the informant in the case. P.W.2 Runi Murmu is the aunt of the informant who stated that on her return from work, the victim told her about the commission of rape on her by the appellant. P.W.3 Nagina Soren is the uncle of the informant who also stated that the victim told him about the commission of rape on her by the appellant. P.W.4 Satrughana Mohanta did not support the prosecution case for which he was declared hostile. P.W.5 Budhuram Baskey stated about the seizure of wearing apparels of the victim under seizure list Ext.2. P.W.6 Siris Kumar Soren is the uncle of the victim by relation and in his presence the police seized the wearing apparels of the victim. P.W.7 Binod Murmu is the uncle of the victim who stated about the disclosure made by the victim regarding commission of rape on her by the appellant. P.W.6 Siris Kumar Soren is the uncle of the victim by relation and in his presence the police seized the wearing apparels of the victim. P.W.7 Binod Murmu is the uncle of the victim who stated about the disclosure made by the victim regarding commission of rape on her by the appellant. P.W.8 Jugal Patra stated to have seen the appellant dragging the victim on the date of occurrence. P.W.9 Rama Chandra Tudu stated to have signed on a paper Ext.3. P.W.10 Krushna Chandra Naik was the constable working in Kaliapani Police station and he stated about the seizure of some medical papers and medical outdoor ticket in his presence by police. P.W.11 Tripathy Murmu is the paternal uncle of the informant and he stated about the disclosure made by the victim regarding commission of rape on her by the appellant. P.W.12 Sukura Mahanta stated to have rescued the victim girl when the appellant was dragging her. P.W.13 Pungi Tudu is an uncle of the victim who stated about the disclosure made by the victim regarding commission of rape on her by the appellant. P.W.14 Bishnu Charan Panda is the Investigating Officer in the case. P.W.15 Dasaratha Moharana was the constable attached to Kaliapani police station who stated about the seizure of some documents. P.W.16 Guru Charan Marandi is the scribe of the F.I.R. P.W.17 Dr. Chaintanya Marandi is the Medical Officer, CHC, Sukinda who examined the appellant on police requisition and proved the report. The prosecution exhibited eleven documents. Ext.1 is the written F.I.R., Exts.2, 3, 4 and 5 are the seizure lists, Ext.6 is the requisition for chemical examination by the I.O., Ext.7 is the forwarding report of the exhibits, Ext.8 is the spot map, Exts.9 and 10 are the command certificates and Ext.11 is the medical examination report of the appellant. 6. The defence plea of the appellant is one of denial. 7. Mr. Radharaman Das Nayak, learned counsel for the appellant submitted that the impugned judgment and order of conviction of the appellant is not sustainable in the eye of law inasmuch as the doctor who has conducted the medical examination of the victim has not been examined on account of his death and the medical examination report has also not been proved even if the same is available on record. It is contended that the manner in which the victim has narrated the incident is falsified by such report as the doctor has mentioned that there is no sign and symptom of recent sexual intercourse even though the victim was examined on the very next day of the occurrence. He further submitted that the possibility of the appellant insisting the deceased to marry him and dragging her for such purpose as per their custom “JHINKA BAHA” and for that reason foisting a case of rape by the victim cannot be ruled out and therefore, benefit doubt should be extended in favour of the appellant. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel, on the other hand, submitted that the victim’s evidence is very clear, cogent and categorical that the appellant forcibly dragged her to the nearby jungle and committed rape and then insisted to marry her which is called “JHINKA BAHA” in their tradition. The learned counsel further submitted that the presence of the appellant in the company of the victim has been stated by P.W.8 and P.W.12 and therefore, the learned Trial Court has not committed any illegality in convicting the appellant for the commission of rape and wrongful restraint. 8. The learned trial Court has observed in his judgment that the Medical Officer Dr. Satya Sadhan Das who had examined the victim (P.W.1) could not be examined due to his death during trial. The Investigating Officer (P.W.14) has categorically stated that on 13.03.2013, he received the medical examination report of the victim. The report should have been marked as exhibit but unfortunately the same has not been done. It is always necessary that such medical examination should be done by two doctors, if they are available in the hospital so that in case of death of one or transfer to any distance place or for his non-availability, the other doctor can prove the same and there would be no delay during trial for the examination of the doctor. However, since the report of the doctor is available on record, in the interest of justice, I perused the same and found that the doctor has mentioned that from the examination of the clothing, no clue regarding alleged sexual intercourse could be found and there was no sign or symptom of recent sexual intercourse. However, since the report of the doctor is available on record, in the interest of justice, I perused the same and found that the doctor has mentioned that from the examination of the clothing, no clue regarding alleged sexual intercourse could be found and there was no sign or symptom of recent sexual intercourse. The doctor has noticed one abrasion on the upper lip and has opined such injury to be simple in nature and the duration of such injury was about 24 hours. It cannot be lost sight of the fact that the incident in question alleged to have taken place on 28.02.2013 and the victim was medically examined on the very next day i.e. on 01.03.2013. The evidence of the victim indicates that the appellant took her from the spot by dragging for one hour to the jungle and she has further stated that the spot of rape and the way where she was picked up by the appellant was around half kilometer distance. If for such a distance, the victim was dragged against her will and thereafter rape was committed forcibly on her inside the jungle, ordinarily injury would have been expected on the private parts as well as on the other parts of the body of the victim but the medical examination report is silent on the same. P.W.12 has stated that when he noticed the appellant dragging the victim, he intervened and caught hold of the appellant in one hand and rescued the victim in another hand and when the appellant told him that he wanted to marry the victim by the process of dragging her which is the custom, he told the appellant to accompany with him and the victim to the village but the appellant escaped from his custody. It appears that while the dragging was on, P.W.12 intervened and rescued the victim and therefore, I am of the view that the evidence of the victim that she was subjected to forcible sexual intercourse is doubtful. Accordingly, the conviction of the appellant under section 376(1) of the Indian Penal Code is not sustainable in the eye of law. The conduct of the appellant in dragging the victim which has been corroborated by P.W.8 and P.W.12 however makes out an offence of outraging the modesty of a woman which is punishable under section 354 of the Indian Penal Code. The conduct of the appellant in dragging the victim which has been corroborated by P.W.8 and P.W.12 however makes out an offence of outraging the modesty of a woman which is punishable under section 354 of the Indian Penal Code. Even though charge under section 354 of the Indian Penal Code has not been framed but since charge has been framed under a higher offence under section 376 of the Indian Penal Code, I am of the humble view that there would no prejudice to the appellant in convicting him under section 354 of the Indian Penal Code. 9. Therefore, the appellant is acquitted of the charge under section 376(1) of the Indian Penal Code, instead he is found guilty under section 354 Indian Penal Code and sentenced to undergo R.I. for a period of six months. His order of conviction under section 341 of the Indian Penal Code and sentence passed there under by the learned Trial Court stands confirmed. It is stated by the learned counsel for the appellant that the appellant is in custody since 02.03.2013 and he was not granted bail either during trial or during pendency of the appeal. Therefore, it appears that he has already undergone the sentence which is imposed under both the offences i.e. under sections 341 and 354 of the Indian Penal Code and as such, taking into account the sentence already undergone, he be set at liberty forthwith if his detention is not otherwise required in any other case. Accordingly, the Jail Criminal Appeal is allowed in part.