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2017 DIGILAW 1136 (ORI)

Bhiku Oram v. State of Orissa

2017-10-12

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellants Bhiku Oram, Ghuran Oram, Bhutna Oram @ Shivanath Oram and Raswal Oram faced trial in the Court of learned Addl. Sessions Judge, Fast Track Court, Rourkela in Sessions Trial Case No. 115/36 of 2009 for offence punishable under section 376(2)(g) of the Indian Penal Code on the accusation that in between 9.00 p.m. of 5th April 2009 and 2.00 a.m. of 6th April 2009, they committed gang rape of the victim (P.W.10) at village Bagdega, Padia toli situated under Bisra police station in the district of Sundargarh. The learned trial Court vide impugned judgment and order dated 25.11.2009 found all the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.10,000/- (rupees ten thousand) each, in default, to undergo rigorous imprisonment for a period of two years each. 2. The law was set into motion by P.W.13 Sundra Oram, the father of the victim with the presentation of the first information report before the Inspector in charge of Bisra Police Station on 08.04.2009, on the basis of which Bisra P.S. Case No.23 of 2009 was registered under section 376(2)(g) of the Indian Penal Code. The prosecution case, as per the first information report is that on 05.04.2009 at about 9.00 p.m. there was marriage of the daughter of one Durga Oram, a co-villager of the informant. The victim who was aged about 16 years had been to the house of Durga Oram to attend the marriage function in the night. Till late night, she did not return home for which the family members searched for her but could not locate her. At about 2 to 3 o’ clock in the night, the victim returned back home crying and disclosed before her mother Suku Oram (P.W.1) that while she was returning alone after attending the marriage, the co-villager Bhiku Oram (appellant no.1) caught hold of her from behind and gagged her mouth by his hand and took her to a nearby place where he removed her chadi and thereafter, Bhiku Oram (appellant no.1), Ghuran Oram (appellant no.2), Raswal Oram (appellant no.4) and others committed rape on her one after another and then she was left at the spot. The informant was not present in the house on that day and he returned home on 07.04.2009 and came to know about the occurrence from his wife (P.W.1) and the victim (P.W.10) and thereafter, he intimated about the occurrence to the Sarpanch and Choukidar of the village, who advised the informant to lodge the F.I.R. and accordingly, the report was presented. 3. After registration of the case by the Inspector in charge of Bisra police station, P.W.14 Panchanan Naik, Sub-inspector of police was directed to take up investigation of the case. During course of investigation, P.W.14 visited the spot and examined the victim and other witnesses. He seized the vaginal swab, pubic hair collected by the Medical Officer under seizure list Ext.6. He also seized the wearing apparel of the victim girl under seizure list Ext.7 and prepared the spot map Ext.14 and the appellants were arrested on 10.04.2009 and they were also sent for medical examination on 11.04.2009. The I.O. seized the sample blood, semen collected by the Medical Officer, Rourkela under seizure list Ext.4 and he also seized the wearing apparels of appellant no.1 Bhiku Oram under seizure list Ext.4. The wearing apparels of the other appellants were also seized. The I.O. received the medical opinion from the Medical Officer in respect of the appellants and made a prayer to the learned S.D.J.M., Panposh for sending the material objects for chemical analysis and after completion of investigation, he submitted charge sheet under sections 366/376(2)(g) of the Indian Penal Code on 06.08.2009. 4. After observing due committal formalities, the case of the appellants was committed to the Court of Session for trial where the learned Addl. Sessions Judge, First Track Court, Rourkela framed charge against the appellants under section 376(2)(g) of the Indian Penal Code on 06.10.2009 and since the appellants denied the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and to establish their guilt. 5. In order to prove its case, the prosecution examined fourteen witnesses. P.W.1 Suku Oram is the mother of the victim and she stated about disclosure made by the victim on the date of occurrence about the commission of rape on her by four persons namely, Bibhu, Khuran, Ratna and Krishna. 5. In order to prove its case, the prosecution examined fourteen witnesses. P.W.1 Suku Oram is the mother of the victim and she stated about disclosure made by the victim on the date of occurrence about the commission of rape on her by four persons namely, Bibhu, Khuran, Ratna and Krishna. She further stated about the instruction given by the Sarpanch to her husband to lodge the F.I.R. P.W.2 Jugal Kishore Naik is a constable who stated about the seizure of pants and chaddies of the appellants under seizure lists Exts.1 to 4. P.W.3 Karma Lakra is the Havildar who stated about the seizure of blood sample and biological sample contained in bottles under seizure list Ext.5. P.W.4 Julen Kiro was the constable who stated about the seizure of semen and pubic hairs collected by the investigating officer under seizure list Ext.6. P.W.5 Ramanush Ekka was the constable who stated about the seizure of pants and four numbers of inner garments of the appellants and also the wearing apparels of the victim and he proved the seizure list Ext.7 in respect of the victim’s wearing apparels. P.W.6 Rabindra Oram is the brother of the victim who stated about the victim’s visit to a marriage ceremony and the disclosure made by the victim regarding commission of rape by the appellants. P.W.7 Bari Oram is the cousin sister of the victim and she stated to have heard from P.W.1 about the occurrence and she also stated about the presentation of the F.I.R. P.W.8 Chappa Oram was the paternal uncle of the victim and he stated about the intimation given by the mother of the victim regarding commission of rape by the appellants on the victim. P.W.9 Bhakta Mohan Oram was the gramarakhi who stated about the disclosure made by P.W.1 relating to commission of rape on the victim by the appellants. P.W.10 is the victim who stated about the occurrence. P.W.11 Dr. Dileswar Jit was the Medical Officer who examined all the appellants and proved their medical reports Exts.8, 9, 10 and 11. P.W.12 Dr. Gujram Marandi examined the victim on 08.04.2009 and proved her report Ext.12. P.W.13 Sundra Oram is the father of the victim girl and he is the informant in the case. P.W.14 Panchanan Naik was the S.I. of Police attached to Bisra police station who is the Investigating Officer. The prosecution exhibited seventeen documents. P.W.12 Dr. Gujram Marandi examined the victim on 08.04.2009 and proved her report Ext.12. P.W.13 Sundra Oram is the father of the victim girl and he is the informant in the case. P.W.14 Panchanan Naik was the S.I. of Police attached to Bisra police station who is the Investigating Officer. The prosecution exhibited seventeen documents. Exts.1 to 7 and 17 are the seizure lists, Exts.8 to 11 are the medical examination reports of the appellants, Ext.12 is the medical report of the prosecutrix, Ext.13 is the F.I.R., Ext.14 is the spot map, Ext.15 is the prayer made to S.D.J.M. for sending the exhibits and Ext.16 is the forwarding letter. 6. The defence plea is one of denial. Two witnesses were examined on behalf of the defence. D.W.1 Sukadev Oram and D.W.2 Navo Oram stated that on the date of occurrence the appellants accompanied them to attend the Lotapani function in village Jarangbira at about 10.00 a.m. and they returned at about 11.00 a.m. 7. The learned trial Court after analysing the evidence on record has been pleased to hold that there is otherwise no circumstances intervened to pressurize or to mould the mind of the prosecutrix for fabrication of the story and concoction of the facts. It is further held that the gap between the receipt of the information and the presentation of the same before the Choukidar (village gramarakhi) is so subtle, nothing can be accepted about the fact being twisted before presentation of the fact before the village gramarakhi (choukidar). It is further held that there is absolutely no infirmity in the evidence of the prosecutrix and she can be considered as a witness of sterling worth. It is further held the discrepancies pointed out are minor and slender and has got little significance without incurring any doubt. It is further held that non-resistance offered by the prosecutrix does not make the Court convinced about the in genuineness of the version presented by the victim. It is further held that the delay caused in presentation of the F.I.R. was very natural and quite reasonable which satisfies the conscience of the Court and the delay was caused due to absence of the informant which was held to be not fatal to the prosecution case. It is further held that the delay caused in presentation of the F.I.R. was very natural and quite reasonable which satisfies the conscience of the Court and the delay was caused due to absence of the informant which was held to be not fatal to the prosecution case. It is further held that on marshalling the evidence with close scrutiny and meticulous examination, the story propounded by the prosecutrix appears to be intrinsically true and inherently probable. 8. At the outset, it is to be noted that even though the learned trial Court framed charge on 06.10.2009 only for the offence under section 376(2)(g) of the Indian Penal Code and the same is also reflected in the order sheet dated 06.10.2009 and in the first paragraph of the judgment but most peculiarly the learned trial Court in paragraphs 19 and 20 has observed that the offence under section 366 of the Indian Penal Code is not attracted and he has also acquitted the appellants of such charge. When no charge was framed under section 366 of the Indian Penal Code and there is no alteration of charge after it was framed on 06.10.2009, the order passed by the learned trial Court in acquitting the appellants of the charge under section 366 of the Indian Penal Code reflects non-application of mind. 9. Mr. Srikant Padhy, learned counsel appearing for the appellants contended that there are martial contradictions in the evidence of the witnesses and the purpose for which the victim visited the house of the co-villager namely Durga Oram appears to be a doubtful feature. It is further contended that the medical examination report of the victim runs contrary to her ocular testimony and there is delay in lodging the first information report which perhaps resulted in concoction of the case against the appellants and therefore, the appellants should be given the benefit of doubt. Mr. Chitta Ranjan Swain, learned Addl. It is further contended that the medical examination report of the victim runs contrary to her ocular testimony and there is delay in lodging the first information report which perhaps resulted in concoction of the case against the appellants and therefore, the appellants should be given the benefit of doubt. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel appearing on behalf of the State on the other hand supported the impugned judgment and contended that not only the victim was minor as on the date of occurrence but she has vividly narrated the incident and her conduct in disclosing about the occurrence before her family members after the occurrence is admissible as res gestae and there is delay of about four days of the examination of the victim after the date of occurrence and therefore, the non-finding of any external injury on the body of the victim as well as on her genital cannot be a ground to disbelieve her testimony and therefore, the appeal should be dismissed. 10. Adverting to the contention regarding delay of three days in lodging the first information report, it appears that the informant (P.W.13), the father of the victim was not present on the date of occurrence which took place in the intervening night of 05.04.2009 and 06.04.2009 and he came back home on the next day of the occurrence and when he was told about the occurrence by his wife (P.W.1) as well as by the victim (P.W.10), he intimated the ward member about the occurrence so also to the village Choukidar who advised the informant to take the help of police and accordingly, the informant came to Bisra police station and lodged the first information report. In a case of this nature where the family prestige is involved so also the future of a minor girl, the informant must have deliberation and consultation among the family members before going to the police station to lodge the first information report. Ordinarily, the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the first information report in a case of this nature is a normal phenomenon. Ordinarily, the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the first information report in a case of this nature is a normal phenomenon. The authorities of the Hon’ble Supreme Court and this Court including various High Courts have granted adequate protection/allowance in that aspects regard being had to the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social milieu. Sometimes the fear of social stigma and sometimes the non-availability of medical treatment to the victim to gain normalcy and above all, the psychological inner strength to undertake a legal battle against the culprits are the reasons that delays the decision to lodge the first information report. Therefore, I am of the view that the first information report dated 08.04.2009 for the incident dated 05/06.04.2009 cannot be said an inordinate delay so as to discard the prosecution version on that ground. 11. It is mentioned in the F.I.R. that the victim had been to the house of co-villager Durga Oram in the night of occurrence to attend a marriage function and she did not return home till late night for which her family members searched for her but could not locate her. P.W.1, the mother of the victim has stated that the victim had been to attend the marriage of the daughter of one Durga of their village. She has stated in her cross-examination that there is difference between Lotapani and Saddi and on the date of incident, in fact there was no marriage ceremony in the house of Durga and the family members were enjoying the festive occasion before the marriage. P.W.13, the father of the victim has stated that the family members of the Durga had been to Jorongloi to perform the Lotapani. The victim as well as her mother (P.W.1) has stated that there was no invitation by the family members of Durga to attain the marriage function but the victim has stated that she voluntarily had been to the house of Durga to see the function. The victim has further stated that the family members of Durga had been to Jorongloi in a truck. The victim has further stated that the family members of Durga had been to Jorongloi in a truck. Therefore, the purpose for which the victim stated to have visited the house of co-villager Durga Oram on the date of incident appears to be discrepant in nature. P.W.1, the mother of the victim has stated that the victim was suffering from mental disorder for last two to three years. If that was the mental condition of the victim, it was not expected from her family members to allow a grown-up girl like her to go alone to attend the marriage function, if any, in the night and further to allow her to stay there till late night. If the family members of Durga Oram had been to Jorongloi in a truck to perform Lotapani and no function was going on in the house of Durga Oram then the victim would not have stayed there till late night. The victim has stated that there are number of houses in between her house and that of Durga. If due to non-return of the victim till late night, her family members started searching for her in the village but could not locate her in spite of frantic searches, such an event would have run like wild fire in the village and the villagers would have participated in searching the victim. Neither anybody from the family of Durga Oram has been examined to say regarding the visit of the victim on the date of occurrence nor has any of the co-villagers been examined to say that there were searches for the victim in the night. These are certain features which creates doubt about the very foundation of the prosecution case. The victim has stated in her evidence that while she was coming on the road, the accused persons appeared in her front, dragged her by gagging her mouth by their hands to a place and committed rape under a Mahul tree one after another and she cried aloud and requested them to leave her but the accused persons forcibly committed rape on her. According to the I.O., he did not find any mark of violence at the place of occurrence. The victim has stated that the place of occurrence was uneven and the accused persons dragged her to a distance place from the road through the paddy field. According to the I.O., he did not find any mark of violence at the place of occurrence. The victim has stated that the place of occurrence was uneven and the accused persons dragged her to a distance place from the road through the paddy field. If that was the situation of the spot, when the victim was examined by the doctor three days after the occurrence, it was expected that the doctor would have noticed some injuries on her person but most peculiarly, P.W.12 has stated that the victim had no external injury on her body and on her genital and there was no sign or symptoms of recent sexual intercourse. She opined the age of the victim to be 18 to 19 years. Even the accused persons who were examined on 12.04.2009 by the doctor P.W.11 had no injury. Therefore, it is apparent that the medical evidence runs contrary to the manner of gang rape which has been stated by the victim. In case of Pratap Misra -Vrs.- State of Orissa reported in A.I.R. 1977 Supreme Court 1307 which was also a case of gang rape, it has been held as follows:- “9. Another aspect of the matter is that where there has been any real resistance, there is bound to be local injury and marks of violence on the body and the limbs of the victim. Taylor in his book Principles and Practice of Medical Jurisprudence, Vol.II, observes thus at p. 64: “Nevertheless, it is most likely that when there has been some real resistance, local injury will be apparent and probably also marks of violence on the body and limbs.” Although according to the prosecutrix, three persons raped her with great force and violence resulting in great pain to her and her breasts becoming swollen and red and other injuries, yet when she was examined by the Doctor P.W.8 only after 16 to 17 hours of the occurrence, the Doctor found no marks of injuries on her body at all. In this connection, P.W.8 has categorically stated thus: “I examined her (P.W.1) at 5.15 p.m. on 20.4.1972. There was no injury or bruise mark on the breasts or chest. In this connection, P.W.8 has categorically stated thus: “I examined her (P.W.1) at 5.15 p.m. on 20.4.1972. There was no injury or bruise mark on the breasts or chest. There was no injury mark on the face, thighs and over the whole body.” If the story of the prosecutrix was true, then we should have expected an injury or bruise-mark on the breasts or chest or on the thighs or other part of the body. The learned Sessions Judge, with whom the High Court has agreed, seems to have brushed aside this important circumstance on the ground that as the prosecutrix was examined by the Doctor on April 20, 1972, at about 5.00 p.m. about 17 hours after the occurrence injuries may have disappeared and has relied on an observation of Taylor at p.66 of his book which runs as follows: “Injuries from rape may soon disappear or become obscure, especially in women who have been used to sexual intercourse.” The Sessions Judge explained that as the prosecutrix was habituated to sexual intercourse injuries may have disappeared. While referring to one part of the observation of Taylor, the learned Sessions Judge has completely lost sight of the other part which explains the real issue and which runs thus: “After 3 or 4 days, unless there has been unusual degree of violence, no traces may be found. Where there has been much violence, the signs may of course persist longer.” Thus, if such a serious violence was caused to the prosecutrix by the appellants, the injuries are not likely to have disappeared before 2 or 3 days and the signs were bound to persist at least when she was examined by the Doctor. The absence of injuries on the person of the appellants as also on the person of the prosecutrix is yet another factor to negative the allegation of rape and to show that the appellants had sexual intercourse with the prosecutrix with her tacit consent.” 12. The victim has stated that on the date of occurrence, she was wearing a scot and a blouse which was black in colour. The wearing apparels which were seized from the victim by the I.O. were one sky colour ganji (semis) and one faded red colour panty. The victim has stated that on the date of occurrence, she was wearing a scot and a blouse which was black in colour. The wearing apparels which were seized from the victim by the I.O. were one sky colour ganji (semis) and one faded red colour panty. These two dresses of the victim which were seized by the I.O. did not match with the description of the dresses which according to the victim, she was wearing on the date of occurrence. The wearing apparels of the victim which were sent for chemical analysis were marked as Ext.A and Ext.B and there is no evidence that those were kept in sealed covers after its seizure. On Ext.A, no blood and no semen was detected but on Ext.B, which was the red colour panty of the victim, the chemical examination report indicates that few patches of mixed stained of blood and semen of human origin was detected but the grouping could not be done. As the victim has not stated in her evidence that she was wearing the sky colour ganji (semis) marked as Ext.A and faded red colour panty marked as Ext.B at the time of occurrence and those were also not produced at the time of examination of the victim for identification and even during trial, neither the wearing apparels of the accused persons nor the wearing apparels of the victim were produced, therefore, the chemical analysis report is of no help to the prosecution. 13. In the first information report, it is mentioned that after the victim returned home, she disclosed the names of three persons namely Bhiku Oram (appellant no.1), Ghuran Oram (appellant no.2) and Raswal Oram (appellant no.4) and also others to have committed gang rape on her. Therefore, as per the first information report, more than four persons participated in the occurrence and the name of appellant no.3 Bhutna Oram @ Shivanath Oram is not there as a culprit. According to the prosecution case, the first disclosure about the occurrence was made by the victim before her mother (P.W.1) and P.W.1 has stated that the victim disclosed the names of Bibhu, Ghuran, Ratua and Krishna to be the four culprits to have committed forcible rape on her one after another. Except the name of appellant no.2, the prosecution has not proved the other nick names to be that of the appellants nos. 1, 3 and 4. Except the name of appellant no.2, the prosecution has not proved the other nick names to be that of the appellants nos. 1, 3 and 4. No test identification parade in respect of the appellants has been conducted to substantiate that the nick named persons are none else but the appellants. This is another missing link in the intrinsic thread to form a complete chain of events. 14. In view of the above discussions, when the very foundation of the prosecution case is shaky and the surrounding circumstances under which the offence is alleged to have been committed appears to be a doubtful feature and the medical evidence runs contrary to the ocular testimony of the victim and when the prosecution case suffers from inherent improbabilities, I am of the view that the impugned judgment and order of conviction of the appellants under section 376(2)(g) of the Indian Penal Code passed by the learned trial Court is not sustainable in the eye of law and benefit of doubt should be extended in favour of the appellants. 15. In the result, the criminal appeal is allowed. The impugned judgment and order of conviction of the appellants under section 376(2)(g) of the Indian Penal Code and sentence passed thereunder is set aside and the appellants are acquitted of such charge. The appellants who are in jail custody in connection with this case shall be released forthwith, if their detention is not otherwise required in any other case. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.