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2017 DIGILAW 1333 (ORI)

Buturu Munda @ Birsa v. State of Orissa

2017-11-21

D.P.CHOUDHURY

body2017
JUDGMENT : DR. D.P. CHOUDHURY, J. The appellants assailed the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Bonai in Sessions Trial No.188/39 of 2014 for the offence under Sections 376(2)(l)/376-D/323 of IPC to undergo sentence. FACTS : 2. The factual matrix leading to the case of the prosecution is that the victim woman, who is major, had gone to a Mela on 15.01.2014 to witness the same with her relative. It is alleged, inter alia, that when the victim was dancing on the festival ground on the occasion of Makar Parba, one of the culprits called her to a place where the present accused persons were already there. It is alleged further that the victim is partially mentally retarded dumb woman. All the appellants including a juvenile, in furtherance of their common intention, lifted the victim woman to a forest side where they committed gang rape on her. Not only this but also they assaulted the victim woman. After committing rape, all the accused persons fled away from the spot. Thereafter, the victim woman came back to her sister’s house and informed about the incident to her relatives. Then her relatives informed the parents of the victim woman. On 18.01.2014, the informant lodged written F.I.R. It is the further case of prosecution that after investigation was initiated, the police examined the witnesses including the victim woman and sent her as well as the accused persons for medical examination. Police also seized the wearing apparels of the victim woman and the accused persons. The seized property was sent for chemical examination. After completion of investigation, the police submitted charge sheet. 3. The plea of the appellants, as revealed from the statement recorded under Section 313 of Cr.P.C. and cross-examination made to P.Ws., is squarely denied to the charge and took a further plea that they have been falsely implicated in this case. 4. Prosecution, in order to prove its case, has examined as many as 12 witnesses. P.W.3 is the victim woman, P.W.1 is the informant, P.W.11 is the doctor, P.W.12 is the I.O. and rest of the witnesses are villagers. 5. Learned trial Court, after analyzing the evidence of prosecution, found the present appellants guilty of committing gang rape and voluntary causing hurt on the person of the victim woman and for that convicted them followed with sentence to undergo. SUBMISSIONS 6. 5. Learned trial Court, after analyzing the evidence of prosecution, found the present appellants guilty of committing gang rape and voluntary causing hurt on the person of the victim woman and for that convicted them followed with sentence to undergo. SUBMISSIONS 6. Learned counsel for the appellants submitted that the learned trial court has erred in law by not considering the case with proper perspective. According to him, there is unexplained delay for lodging F.I.R. because of the fact that the occurrence allegedly took place on 15.01.2014 whereas the F.I.R. was lodged on 18.01.2014. He further submitted that the medical evidence is silent as to recent sign or symptom of sexual intercourse with the victim woman. 7. Learned counsel for the appellants further submitted that there is no eye witness to the occurrence and the statement of the informant is not based on clear evidence, because same is not admissible. So, he submitted to quash the order of conviction and sentence. 8. Learned Additional Standing Counsel for the State submitted that the statement of the P.W.3, who is the victim woman, can be solely relied on to prove the occurrence as her statement has not been rebutted in any manner by the prosecution. 9. Learned Additional Standing Counsel for the State further submitted that since the victim is partially mentally retarded woman with dumbness, the statement recorded with the help of the interpreter is clear enough to show the culpability of the appellants. According to him, the statement of the doctor is clear to show that the victim woman has got external injury on her body and the injury on her female genital so as to infer the rape committed on her. 10. Learned Additional Standing Counsel further submitted that in case of rape, the statement of the victim woman can be relied upon solely to record conviction and the minor discrepancies have to be overlooked. So, he supported the impugned judgment of conviction and sentence passed by the learned trial Court. DISCUSSION 11. It is reported in 1990 SCC (Cri) 210; State of Maharashtra v. Chandraprakash Kewalchand Jain where Their Lordships observed at paragraph-16 in the following manner:- "16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. DISCUSSION 11. It is reported in 1990 SCC (Cri) 210; State of Maharashtra v. Chandraprakash Kewalchand Jain where Their Lordships observed at paragraph-16 in the following manner:- "16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discussed that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence……." With due regards to the aforesaid decision, it is settled in law that the evidence of prosecutrix cannot be lost sight of and basing on her sole testimony, the conviction can be maintained provided her testimony is clear, cogent and reposes confidence. 12. 12. It is also reported in the case of State of Rajasthan -vrs-Darshan Singh Alias Darshan Lal; (2012) 5 SCC 789 where Their Lordships observed at paragraphs-25, 26 and 29 in the following manner:- “25. In M.P. Sharma v. Satish Chandra; AIR 1954 SC 300 , this Court held that: (AIR p.304, para 10) “10. … A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see Section 119 of the Evidence Act) or the like.” 26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs. 29. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.” With due regards to the aforesaid decision, it is clear that the evidence of deaf and dumb can be relied on as she is a competent witness but her evidence in the facts and circumstances can be taken up with the aid of interpreter. 13. At the same time, her evidence should be assessed keeping in mind the principle of appreciation of evidence of a prosecutrix in sexual assault case. It is not out of place to mention that while re-appreciating evidence by the Appellate Court, the court should follow the principle of law as enunciated time to time by the Hon’ble Apex Court. No doubt, the evidence of a witness may be wholly reliable or may be wholly un-reliable or may be partially reliable or partially un-reliable, the court should separate grain from chaff. 14. The evidence of P.W.11 shows that he has examined the appellants and found they are capable of undertaking sexual intercourse. He proved vide Exts.5, 6 and 7. Their capability to commit offence also lends corroboration to the prosecution. 15. From the statement of P.W.3, who is the victim woman of aged about 30 years, it appears that she is a dumb and also a tribal Munda girl. So, the trial Court has engaged the interpreter from the village of the victim. It appears that the trial Court has followed the procedures as enunciated by the Hon’ble Apex Court while examining the semi dumb witness. According to P.W.3, while she had gone to see Makar Parba, a boy from the village Kunjapani called the victim to a separate place where present appellants were already there. They forcibly took away her inside the forest side. The victim has clearly stated that these appellants forcibly made her flat on the ground by assaulting her and committed forcibly sexual intercourse. They forcibly took away her inside the forest side. The victim has clearly stated that these appellants forcibly made her flat on the ground by assaulting her and committed forcibly sexual intercourse. After sexual intercourse, they left the spot and due to such sexual intercourse with her, she was not able to walk properly. She then came to her sister’s house to narrate the incident to them. At paragraph-3 of her cross-examination, she explained about the details of occurrence. According to her, appellant Butru Munda first committed rape on her and soon after Butru, the other two accused persons one after another committed rape on her. It is stated to have sustained injuries on her both hands and her neck although she has tried to get rid of from the clutches of the appellants but she was not able to, in her attempt. In further cross-examination, the defence has not brought any material omission in her testimony so as to discard her testimony. On the other hand, the defence has failed to shake her testimony in any manner during cross-examination. So, her testimony suffers from no infirmity or blemish whatsoever. Thus, the statement of P.W.3 is clear and consistent to show that she is wholly reliable and truthful witness to prove offence of rape. 16. P.W. 1 is the informant of the case and from his statement, it appears that he came to know about the occurrence from his wife and then lodged the F.I.R. vide Ext.1. According to him, one Arjun Mundari has scribed the F.I.R. as per his instruction. He admitted in his cross-examination that the victim woman was a mentally weak lady. It appears that he has not seen the occurrence. So his evidence except lodging of the F.I.R. does not make any other improvement to the prosecution. 17. P.W.2 happens to be her cousin sister and during incident she was staying in her house. According to her, on Makar festival, the victim had gone with her husband-P.W.1 to a Mela. On the next day of the occurrence, P.W.3(victim) came back and informed her that the appellants have forcibly committed rape on her after assaulting on her hands. In cross-examination, she admitted that after the incident, the victim had gone to her parental house and in the evening informed P.W.2 about the occurrence. On the next day of the occurrence, P.W.3(victim) came back and informed her that the appellants have forcibly committed rape on her after assaulting on her hands. In cross-examination, she admitted that after the incident, the victim had gone to her parental house and in the evening informed P.W.2 about the occurrence. Since the victim woman is a dumb and mentally weak, the narration of the incident in little late to P.W.2 does not take away the rigour of the prosecution but the fact remains that P.W.2 has lent corroboration to the statement of P.W.3 about the occurrence. 18. From the statement of P.W.6, who is the mother of the victim woman, it reveals that on the date of occurrence, P.W.1 had taken P.W.3 to visit Makar Mela. She came to know from the informant that the appellants have committed rape on her daughter (P.W.3). Then she and P.W.1 lodged the F.I.R. Admittedly, P.W.1 is her son-in-law. Of course, little doubt is raised as to why P.W.3 did not disclose the matter to P.W.6. In that regard, there is no cross-examination to the P.W.6. Moreover, since it is a tribal community, the normal expectation from each individual remotely available in the fact and circumstance of the case. Moreover, manner of reaction of each person to an incident cannot be similar but may differ from person to person. On the other hand, the statement of P.W.6 lends assurance to the case of the prosecution to the fact that the victim woman had gone with the informant to see Makar Mela. 19. P.W.11 is a vital witness because he is the doctor, who examined the victim woman. He appears to have examined the victim woman on the next day of the occurrence at 11 A.M. and found following injuries on her person:- “1. Right arm and fore arm swollen and tendered. 2. Left thigh tenderness. 3. Left forehead and cheek tendered. 4. No genital region injury observed.” He proved the medical report vide Ext.4. 20. P.W.11 stated to have re-examined the victim woman on 18.01.2014 at 3.45 PM on the query made by the I.O. to examine her genital part. He proved his report vide Ext.8 and also stated at paragraph-6 about the examination on her genital part, which is reproduced in the following:- “6. 20. P.W.11 stated to have re-examined the victim woman on 18.01.2014 at 3.45 PM on the query made by the I.O. to examine her genital part. He proved his report vide Ext.8 and also stated at paragraph-6 about the examination on her genital part, which is reproduced in the following:- “6. On my examination on the female genital part of the victim lady I found no stain, no discharge, no bleeding and no injury around it. Two fingers admitted the vagina. The vaginal canal roaming, condition of the service was normal. I have conducted her pregnancy test but it was negative.” 21. In cross-examination, he admitted that he noticed no internal or external injuries either on her body or on her female genital parts. It appears that the doctor has put himself in a disadvantage position during cross-examination, inasmuch as in the examination-in-chief, he stated clearly about presence of external injury on the person of the victim woman but in cross-examination he denied to have seen external injury. Not only this but also in cross-examination, admittedly there is no circumstances before him to suggest any recent sexual intercourse with the victim woman. When there are clear external injuries, it was not expected from the doctor to give a clean cheat to the appellants by stating that no recent sexual intercourse with the victim. The Ext.4 shows that the I.O. did not send her signature for examination of the female genital although the case of rape was registered. Again he sent the victim in the afternoon for her such examination. It gives doubt as to correctness in the investigation. 22. When exhibit-4 shows clearly about the external injuries, same lends sufficient corroboration to the evidence of the P.W.3(victim) as to commission of rape. On verification of the statement of the doctor along with exhibit-8, it appears that she being a major grown up girl having vaginal capacity of two fingers, the absence of injury on the private part does not deny the possibility of rape which undoubtedly corroborates the evidence of P.W.3 (victim) as relied upon by the Modi’s Medical Jurisprudence on 2oth Edition at page-337 where it is mentioned that the possibility of sexual intercourse having taken place without rupturing the hymen may be inferred, if the vaginal orifice is big enough to admit easily the passage of two fingers. Moreover, the injuries on her left thigh and cheek and other parts of the body must be read along with feature of the female genital of the victim woman. So, the absence of the injury on the genital of the victim woman cannot absolutely wipe out the possibility of rape while the external injuries are quite suggestive of the forcible sexual intercourse with her. Of course, the evidence of the doctor further discloses that the victim woman was not answering well for which he found her partially mentally impaired. When the victim woman suffered so much external injuries and faced intolerable gang rape as stated by her, the silence on her part before the doctor cannot negative the case of the prosecution but subserve justice by only observing that she has not only suffered the injuries on her person but also suffered trauma while going through horror of crime. Be that as it may, the evidence of the doctor amply lends assurance to the statement of the victim that she was raped by the appellants. 23. It appears that the I.O. has seized wearing apparels of the victim and the appellants. The I.O. has also seized the vaginal swab of the victim and the sample of semen and other material of the appellants. He has sent for chemical examination but failed to prove the chemical examination report. The lackadaisical attitude of the I.O. in this case by not proving the chemical examination report, speaks on the non-performance of investigating agency. However, the evidence as discussed above are enough for the prosecution to prove that P.W.3 (victim) was ravished by the appellants. 24. Learned trial Court has also found that the appellants committed rape on the victim and there is no any disagreement with his finding. It appears that he has convicted the appellants under Sections 376(2)(l)/376-D/323 of IPC. Since the occurrence relates to 15.01.2014 which is after the amendment to Section 376 of IPC taken place in 2013, the offences under which conviction recorded require discussion. Section 376(2)(l) of IPC speaks that whoever committed rape on a woman suffering from mental or physical disability is punishable not less than 10 years which may be extended to imprisonment for life and also liable to be fine. Section 376(2)(l) of IPC speaks that whoever committed rape on a woman suffering from mental or physical disability is punishable not less than 10 years which may be extended to imprisonment for life and also liable to be fine. Similarly, Section 376-D of IPC refers to a gang rape and each of them would be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to life which shall mean imprisonment for the reminder of that person’s natural life, and with fine. Since each of the appellant has committed rape with the victim woman who is semi dumb and the evidence on record also found her with partial abnormality, the conviction under Section 376(2)(l) of IPC cannot be denied. Similarly, as the rape is committed by the appellants one after another, the offence under Section 376-D of IPC, i.e, gang rape cannot be denied. Thus, both the offences have been well-proved by the prosecution. Moreover, the evidence of P.W.11 shows that P.W.3 has sustained injury on her person and P.W.3 has also stated that she was assaulted by the appellants during course of her resistance to the rape. So, the offence under Section 323 of IPC is also well made out. Thus, the conviction recorded against each of the appellants under above section of law are also well confirmed. 25. Since the Court should not normally award punishment below the minimum prescribed and the trial Court has already passed the minimum sentence against each of the appellants, the Court do not want to intervene. 26. Hence, the conviction and sentence as recorded by the learned trial Court is hereby confirmed as the Court do not find any reason to interfere with the judgment of conviction and sentence passed by the learned trial Court. 27. It is revealed from the judgment of the learned trial Court that fine amount realized from the appellants would be paid to the victim. Section 357-B of Cr.P.C. was incorporated in the text book on 3.2.2013, which states that compensation payable by the State Government under Section 357-A of Cr.P.C., shall be in addition to the payment of fine to the victim for the offence committed under Section 376-D of the IPC. Section 357-B of Cr.P.C. was incorporated in the text book on 3.2.2013, which states that compensation payable by the State Government under Section 357-A of Cr.P.C., shall be in addition to the payment of fine to the victim for the offence committed under Section 376-D of the IPC. So, in addition to the payment of the fine amount, this Court direct the State Government to pay compensation of Rs.1,00,000/-(Rupees one lakh) to the victim for the loss or injuries she had suffered due to offence committed under Section 376-D of IPC. In the result, the Jail Criminal Appeal is dismissed. L.C.R. be remitted back immediately. A copy of the judgment be sent to the State Legal Services Authority to do the needful.