Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1334 (ORI)

Gobara Majhi v. State of Orissa

2017-11-21

D.P.CHOUDHURY

body2017
JUDGMENT : Dr.D.P.Choudhury, J. This captioned Jail Criminal Appeal is filed by the appellants from Jail against the judgment of conviction and sentence passed under Sections 376-D and 341 of the Indian Penal Code (hereinafter called as “I.P.C.”) by the learned Additional Sessions Judge, Kalahandi, Bhawanipatna in C.T. Case No.68 of 2013 (Sessions)(T) sentencing each of the appellants to undergo R.I. for twenty years and to pay fine of Rs.3000/-only in default R.I. for six months for offence under Section 376-D IPC. Further, both the appellants were sentenced to undergo S.I. for one month for the offence under Section 341 of IPC. Both the sentences were directed to run concurrently. 2. The conspectus of the case of the prosecution is that on 14.4.2013, the victim at about 3.00 pm had gone to Stone Crusher to break stone for preparation of metal chips. She had gone with her children. It is alleged inter alia that the present appellants and co-accused Bisam Majhi came there and drove out the children in spite of their unwillingness to leave their mother. It is further case of the prosecution that the appellants pulled the saree, saya and blouse of the victim in spite of her protest. Co-accused Bisam Majhi assaulted the victim by means of lathi causing injury on her person. Thereafter, present appellants committed rape upon the victim one after another and after the occurrence they fled away from the spot. Thereafter, the victim came to her house and informed the matter to her husband. On the next day, they lodged the FIR being scribed by one outsider. Police took up investigation. During investigation, victim was examined and her medical examination was also conducted. Witnesses were examined and wearing apparels and the lathi used by co-accused Bisam were seized. The seized materials were sent for chemical examination. After completion of the investigation, charge sheet has been submitted against the present appellants and co-accused Bisam. 3. The plea of the appellants as revealed from their examination recorded under section 313 of Cr.P.C. and suggestions made to the prosecution witnesses during cross-examination that they have been falsely implicated in this case and there is no iota of evidence against them. 4. 3. The plea of the appellants as revealed from their examination recorded under section 313 of Cr.P.C. and suggestions made to the prosecution witnesses during cross-examination that they have been falsely implicated in this case and there is no iota of evidence against them. 4. The prosecution, in order to prove its case, has examined as many as 15 witnesses out of which P.Ws.1 and 2 are witnesses to the seizure of wearing apparels, P.Ws.3,4,5 and 6 are co-villagers, P.W.7 is the informant, P.W.8 is the daughter of the victim and an eye witness, P.W.9 is the husband of the informant, P.W.10 is the doctor, P.W.11 is the scribe of the FIR, P.W.12 is a witness to the seizure of saya and lathi, P.W.15 is the IO who submitted the charge sheet and P.W.16 is the preliminary I.O. The defence examined none. 5. Learned Trial Court, after analyzing the evidence of each witness, found both the appellants guilty under Section 376-D/341 IPC but acquitted them of all other charges. As such, he convicted and sentenced the appellants as stated above. Learned trial Court acquitted co-accused Bisam of all the offences. 6. Mr.Dash, learned counsel for the accused-appellant strenuously urged that trial Court has committed error by convicting the appellants under Sections 376-D/341 of IPC as the evidence available on record do not show consistently about the occurrence of rape. According to him, due to dispute between the parties with regard to disposal of metals, a false case has been filed against the appellants. 7. Mr.Dash, learned counsel for the appellants further submits that the doctor did not find any injury on the private part of the victim but the learned Trial Court only convicted the appellants basing on the injury on the hand and head of the victim, which has been caused by co-accused Bisam, as per the statement of the victim but not for forcible sexual intercourse. He further contended that the statement of the victim cannot be solely reliable in view of so many discrepancies in her statement. That apart, the FIR does not disclose about the commission of rape by the appellant-Gobara and the same has not been written in hand but has been typed to suit the case of the prosecution. He further contended that the statement of the victim cannot be solely reliable in view of so many discrepancies in her statement. That apart, the FIR does not disclose about the commission of rape by the appellant-Gobara and the same has not been written in hand but has been typed to suit the case of the prosecution. On the other hand, learned counsel for the appellant submitted that a printed FIR was filed with the very purpose to take revenge against the appellants without having any occurrence took place. So, the judgment of conviction and sentence passed against the appellants should be set aside and the appellants be acquitted of the charges. 8. Mr.Patra, learned Additional Standing Counsel submitted that the law is well settled that a conviction can be based on the sole testimony of the prosecutrix because she is injured bodily and in mind. Further, it is submitted that the evidence of the victim is clear without having any conjectures to prove the occurrence. The statement of one of the child of the victim well corroborates her evidence. Moreover, the evidence of the doctor lends sufficient corroboration to the evidence of the victim about the forcible sexual intercourse for which the judgment of conviction and sentence passed against the appellants are correct and legal. 9. Before going to the fact, the law on the appreciation of evidence of the prosecutrix should be analyzed to certain extent because the statement of the prosecutrix has to be weighed properly without seeking any corroboration. In this regard, Hon’ble Supreme Court, in the case of State of Punjab –V-Gurmit Singh; (1996) 2 SCC 384 , at paragraph-8 of the judgment, have held in the following manner:- "............The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. 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 casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable...............". With due regard to the above decision, the emphasis has been laid on the statement of the victim. Her statement has been given such importance that the conviction can be maintained basing on her sole testimony. Whether her statement is not satisfying the judicial conscience, the assurance to her statement should be searched for. But, this principle is exception to the normal rule that in a sexual offence, the evidence of the prosecutrix should be levelled with high pedestal and not to be rejected unless it creates any suspicion in mind. 10. Now, in the present case, the statement of the victim, who is examined as P.W.7, reveals that she along with her minor son and daughter had gone to the spot for breaking stones. While breaking the stones, the appellants came there unitedly and drove the children. When the children expressed their reluctance, they chased them and out of fear, the children fled away. It further reveals from the statement of P.W.7 that the appellants caught hold the hands of the victim and co-accused Gobara committed rape on her first and accused-Jakson committed rape thereafter. They tore her wearing clothes while undressing her. When she raised protest, co-accused Bisam assaulted her by means of a lathi causing injury on her person. It further reveals from the statement of P.W.7 that the appellants caught hold the hands of the victim and co-accused Gobara committed rape on her first and accused-Jakson committed rape thereafter. They tore her wearing clothes while undressing her. When she raised protest, co-accused Bisam assaulted her by means of a lathi causing injury on her person. After the occurrence, at 6.00 pm she returned and narrated the incident to her husband. They contacted the villagers but they did not listen to them. So, they lodged FIR. During cross-examination, she admitted that at the relevant point of time, no other labourer was present at nearby places. She admitted that there were about 10 sheds where other persons where to break the stones. If the labourers used to break the stones at a nearby place, a doubt arises as to why no labour was there near the occurrence place. Further, it appears that the co-accused persons tore the saya and blouse but did not state about the toring of her saree. It is improbable to conceive that without toring saree, there could be damage to blouse and saya. No torn saree is seized. She is found to be a major woman aged about 30 years. But, admitted that she was not wearing any panty or chadi at the relevant time which gives doubt more in the mind of the Court as to how the woman had gone to the field without any under garments being put on. She, in the cross-examination, has stated that appellant-Jackson caught hold of her shoulders and hands while the appellant-Gobara committed rape and while the appellant-Gobara was holding her hand, appellant-Jackson committed rape on her. During her cross-examination, she resisted while appellants committed rape but did not elaborate the manner of resisting of such commission of rape. She had not explained about any injury caused to her body or private part while successive forcible intercourse took place but only admitted that she got injury on her hand and swelling on her back side due to the assault made by the accused-Bisam. When there is no injury sustained by her either on external part of the body or on her private part and no manner of protest explained by her, the presumption of the absence of consent as per Section 146(A) of the Evidence Act is rebutted. When there is no injury sustained by her either on external part of the body or on her private part and no manner of protest explained by her, the presumption of the absence of consent as per Section 146(A) of the Evidence Act is rebutted. If she has gone to work place, it is not known why she has gone at 3.00 pm instead of morning. Moreover, when there is no labourer present near the occurrence place, she should not have started breaking of metals but to return her house, which is 2 to 3 kms away from the spot. 11. The statement of the victim (P.W.7) shows that she has lodged the FIR which was reduced into writing by one outsider whose name has not been disclosed. It appears that she has disclosed the incident before Purnami Biswal, Suresh Pradhan and Dhane Harijan of their village during cross-examination, but in her examination in chief, she has not stated to have informed such fact to any of the villagers just after the occurrence. In view of this departure, the statement of the prosecturix cannot be relied on solely to prove the forcible sexual intercourse committed by the present appellants. Hence, the same requires corroboration. The evidence of P.Ws.3, 4, 5 and 6, before whom the victim stated to have narrated the occurrence, shows that they are ignorant of the occurrence. They also denied to have stated before the police that they came to know about the occurrence from the victim and her husband. Although their statements were confronted to them, the same have not been confronted to the I.O. So, they cannot be said to be hostile to the prosecution. On the other hand, they have not corroborated the evidence of P.W.7 about the occurrence of sexual assault alleged against the present appellants. 12. The statement of the daughter of the victim (P.W.8) shows that she is aged about 12 years old and the certificate of the learned Trial Court has been given about her competence to depose in the case. Although, certificate is given about her competence but the manner of suggestion of the Court to her understanding has not been explained. On the other hand, learned trial Court has not recorded the questions and answers adduced by P.W.8. The Trial Court should remember the procedure for examining the child witness. Although, certificate is given about her competence but the manner of suggestion of the Court to her understanding has not been explained. On the other hand, learned trial Court has not recorded the questions and answers adduced by P.W.8. The Trial Court should remember the procedure for examining the child witness. Even if the certificate is given by the Trial Court about her competence to depose but the level of understanding of P.W.8 can be only judged after recording the questions put to her and answers given by her or after ascertaining the answers to the questions put by it and both of same should be recorded so as to satisfy the appellate Court that the child is quite competent to depose. The procedural abnormality at times lands the well written judgment vulnerable. However, the evidence of P.W.8 shows that she had gone with her mother and while breaking stones, appellants came to the spot. She stated that the appellant-Gobara asked her to leave the place and assaulted her by means of lathi. Out of fear, she fled away. The assault on P.W.8 is not corroborated by P.W.7. However, she along with her brother left the spot for home. It appears from her evidence that her mother narrated the occurrence before her father. It is not known from her evidence as to why they did not witness the occurrence at a little distance and called the other people to help their mother. When P.W.8 is 12 years old is quite understating to save her mother by calling other persons from nearby place. However, the absence of attempt on the part of P.W.8 to save the victim also raises doubt in the case of the prosecution. 13. P.W.9 is the husband of the victim. It appears from his evidence that he heard about the occurrence from the victim. However, he is a post occurrence witness. 14. The evidence of the doctor (P.W.10) shows that she examined the victim on 16.04.2013 at about 11.00 am and found the following injuries: “(1) The age of victim was more than 20 years as per ossification test; (2) Hymen was absent. Labia Majora exposes Labia Minora, Posterior commeasure and forchutee were torn; external os admits two fingers easily. Vaginal canal capacious, rugosity diappear. Labia Majora exposes Labia Minora, Posterior commeasure and forchutee were torn; external os admits two fingers easily. Vaginal canal capacious, rugosity diappear. The cervix is healthy and multiporous; (3) The physical injuries found over her person as follows:- (a) lacerated wound of size 0.5 cm X 0.5 cm X skin dip over frontal area, (b) bruise of size 2 cm X 2 cm over forehead, (c) bruise of size 5 cm X 5 cm over left scapula and shoulder joint. The said external injuries were suggestive of forcible sexual intercourse. (4) No seminal sticking over the private part; (5) There was no foreign hair detected during physical examinaiton; (6) V.D.R.L. test found non-reactive; (7) Vaginal swab collected, dired, preserved in vial, sealed, levelled and handed over to the accompanying constable. Her Blood Group was ‘A’ positive.” She proved the medical examination report of the victim vide Ext.5. In cross-examination, she stated that she opined forcible sexual intercourse basing on her external injury. She has never stated that the genital feature of victim are evident of sexual intercourse. On the other hand, the victim has stated that she got the physical injuries due to assault by co-accused Bisam. The opinion of the doctor that external injuries are suggestive of forcible sexual intercourse is an opinion but the statement of the victim matters more than the doctor in this regard. Therefore, the physical injuries are actually caused due to assault on her person by co-accused Bisam. However, the opinion of the doctor hardly features to prove the recent sexual intercourse with her, who is a married woman having children and thus do not convince about any injury on her private part due to rape as alleged by the victim. 15. In Modi’s 20th edition of Medical Jurisprudence and Toxicology, it is observed that in grown-up females, if the public hairs are found matted due to the presence of semen, they should be cut off with a pair of scissors and examined for the presence of spermatozoa. Similarly, in grown-up virgin girls, unmarried or married women, when they offer resistance marks of violence, such as bruises, scratches of finger nails, etc., may be found on the external genitals, perinaeum, abdomen, chest, back, limbs, neck and face. In this case, the I.O (P.W.16) has proved the report of the doctor vide Exts.11 and 12 towards examination of appellant-Jackson and Gobara respectively. In this case, the I.O (P.W.16) has proved the report of the doctor vide Exts.11 and 12 towards examination of appellant-Jackson and Gobara respectively. But concerned doctor is not examined to prove the same. It is not a case where doctor was not available or not traceable to prove the same. However, Exts.11 and 12 do not show about injury on the person of appellants to prove forcible sexual intercourse. 16. Similarly, victim woman has been examined on 16th April but the occurrence occurred on 14th April and she is a married woman having two children. So, the features as found by the doctor (P.W.10) in her report do not prove about forcible sexual intercourse with her at the instance of the appellants so as to prove gang rape as alleged by her. 17. The evidence of P.W.10 thus does not lend sufficient corroboration to the statement of the victim about forcible sexual intercourse by the present appellants with the victim. Hence, the statement of victim does not find necessary corroboration or assurance from the evidence of the doctor to justify her case of forcible sexual intercourse by the present appellants. 18. It reveals from the statements of P.Ws.1, 2, 7, 12 and 14 that the wearing apparels of the victim were seized but the seizure list does not disclose about seizure of any tore blouse and saree although tore saya was seized. If there is resistance from the side of the victim and the appellant tore her wearing clothes why those clothes were not seized. Non-seizure of material object also creates doubt in the mind about the veracity of the victim. At the same time, the prosecution proved the seizure of wearing apparels of the appellants. 19. The I.O (P.W.16) stated to have sent all the seized materials for chemical examination but the chemical examination report vide Ext.13 does not disclose about any blood or semen on the wearing clothes of the victim. Thus, the seizure of wearing apparels of the appellants does not improve the case of the prosecution same. However, in toto, the necessary assurance or the corroboration to the statement of the victim are lacking. Hence, I am of the view that the prosecution has not proved the charge of gang rape or wrongful restraint against the appellants beyond all reasonable doubts. 20. However, in toto, the necessary assurance or the corroboration to the statement of the victim are lacking. Hence, I am of the view that the prosecution has not proved the charge of gang rape or wrongful restraint against the appellants beyond all reasonable doubts. 20. Learned Trial Court has passed the judgment of conviction and sentence by analyzing the evidence in the manner which is not sustainable in accordance with law. Therefore, this Court does not find correctness with the finding of the learned Trial Court. In the result, the Jail Criminal Appeal is allowed and the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Kalahandi, Bhawanipatna in C.T. Case No.68 of 2013 (Sessions)(T) is set aside and the appellants are acquitted of the offence under Sections 376-D and 341 of IPC and they be set at liberty forthwith, if their detention is not required otherwise. The LCR be sent back immediately.