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2017 DIGILAW 257 (ORI)

Raja @ Rajendra Naik v. State of Orissa

2017-03-09

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The petitioner Raja @ Rajendra Naik faced trial in the Court of learned C.J.M. –cum-Asst. Sessions Judge, Boudh in S.T. No.03 of 1995 for offences punishable under sections 450 and 376(1) of the Indian Penal Code on the accusation that on 13.05.1994 at about 12.00 noon, he committed house trespass by entering into the house of Kalandi Behera (P.W.1) in order to commit an offence of rape and also committed rape on the victim “KB” (P.W.2), the wife of P.W.1. The learned Trial Court vide impugned judgment and order dated 28.10.1995 found the petitioner guilty under sections 450 and 376(1) of the Indian Penal Code and sentenced him to undergo R.I. for a period of seven years and to pay a fine of Rs.1,000/-(rupees one thousand), in default, to undergo S.I. for a period of six months for the offence under section 450 of the Indian Penal Code and R.I. for a period of seven years and to pay a fine of Rs.2000/-(rupees two thousand), in default, to undergo S.I. for a period of six months under section 376(1) of the Indian Penal Code. Both the substantive sentences were directed to run concurrently. The petitioner preferred an appeal in the Court of Session which was heard by the learned Additional Sessions Judge, Boudh in Criminal Appeal No.10 of 2000 (Criminal Appeal No. 38 of 1995-D.C.) and the learned Appellate Court vide impugned judgment and order dated 18.11.2000 though acquitted the petitioner of the charge under section 450 of the Indian Penal Code but upheld the order of conviction under section 376 of the Indian Penal Code and the sentence imposed by the learned Trial Court for such offence, hence the revision. 2. The prosecution case, as per the first information report lodged by Kalandi Behera (P.W.1) before the officer in charge of Purunakatak police station is that on 13.05.1994 he had been to the house of one Keshaba Naik who is his caste man on account of daughter’s marriage of the later. On that day at about 12.00 noon when P.W.1 returned home, he found that his wife (P.W.2) and the petitioner were engaged in sexual intercourse inside the house. P.W.1 suddenly locked the door (tatti) of the house and went to call the co-villagers including the father of the petitioner. On that day at about 12.00 noon when P.W.1 returned home, he found that his wife (P.W.2) and the petitioner were engaged in sexual intercourse inside the house. P.W.1 suddenly locked the door (tatti) of the house and went to call the co-villagers including the father of the petitioner. By the time P.W.1 returned back, the petitioner fled away from the house cutting the door which was seen by others. The co-villagers told P.W.1 that they cannot settle the matter in the village and accordingly P.W.1 lodged the first information report. On receipt of the first information report, Purunakatak P.S. Case No.25 of 1994 was registered on 13.05.1994 under section 376 of the Indian Penal Code by P.W.16 Santanu Kumar Padhi, officer in charge of Purunakatak police station and he himself took up investigation. 3. During course of investigation, the I.O. examined the informant, recorded his statement, visited the spot, examined the victim and other witnesses, prepared the spot map Ext.13, seized the wearing apparels of the victim and prepared seizure list (Ext.1). He also seized the saree (M.O.I) and blouse (M.O.II) of the victim on being produced by her. The petitioner was arrested and his wearing apparels were seized. Both the petitioner and the victim were sent for medical examination to Medical Officer, Purunakatak Government Hospital and then to District Headquarters Hospital, Phulbani where blood and saliva samples of both the petitioner and the victim were collected in sealed packets and requisition was made for collection of the vaginal swab of the victim as well as the semen of the petitioner. The wearing apparels of the victim as well as the petitioner were forwarded to S.F.S.L., Rasulgarh, Bhubaneswar for chemical analysis and after completion of investigation, charge sheet was submitted against the petitioner on 10.08.1994 under sections 450 and 376 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 framed charge on 17.04.1995 for offences punishable under sections 450 and 376(1) of the Indian Penal Code and since the petitioner 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. 5. The defence plea of the petitioner was one of denial and it was pleaded that due to party faction in the village, the case has been foisted against him. 6. In order to establish its case, the prosecution examined sixteen witnesses. P.W.1 Kalindi Behera is the informant of the case and he stated to have seen the petitioner having sexual intercourse with the victim. P.W.2 Kumudini Behera is the victim who narrated the incident in detail. P.W.3 Lalu Naik stated about the disclosure made by P.W.1 before him relating to commission of rape by the petitioner and further stated that the petitioner ran away from the house of P.W.1. He is also witness to the wearing apparels of the victim as well as the petitioner. P.W.4 Mangulu Chaulia also stated in similar manner like P.W.3 and he is also witness to the seizure of wearing apparels of the victim as well as the petitioner. P.W.5 Kartik Bisi is the scribe of the first information report. P.W.6 Keshab Naik did not support the prosecution case for which he was declared hostile by the prosecution. P.W.7 Kunja Digal was the constable attached to Purunakatak police station who took the victim and the petitioner first to Purunakatak P.H.C. and then to District Headquarters Hospital, Phulbani for medical examination. P.W.8 Narada Sahani was the Havildar working at Purunakatak police station who also accompanied the petitioner and the victim to the hospital for their medical examination. P.W.9 Bansidhar Das was the constable attached to Purunakatak police station who stated about the seizure of one sealed packet containing blood and saliva of the petitioner as well as the victim and also about the preparation of seizure list Ext.6. P.W.10 Kabiraj Pradhan was another constable who stated similarly like P.W.9. P.W.11 Dr. Shantilata Dash was the Gynecology Specialist at District Headquarters Hospital, Phulbani who on police requisition examined the victim on 15.05.1994 and prepared her report Ext.7. P.W.12 Amiya Kumar Samantaray was the Scientific Officer attached to D.F.S.L., Phulbani who examined the wearing apparels of the victim and the petitioner and suspected presence of semen stains and accordingly advised the Investigating Officer to send the exhibits to State S.F.S.L., Rasulgarh, Bhubaneswar for further confirmation test and opinion. P.W.12 Amiya Kumar Samantaray was the Scientific Officer attached to D.F.S.L., Phulbani who examined the wearing apparels of the victim and the petitioner and suspected presence of semen stains and accordingly advised the Investigating Officer to send the exhibits to State S.F.S.L., Rasulgarh, Bhubaneswar for further confirmation test and opinion. P.W.13 Patitapaban Panigrahi was the Pathology Specialist at District Headquarters Hospital, Phulbani who examined the sample of vaginal fluid collected from the victim and opined that it did not reveal any spermatozoa. He proved his report Ext.10/1. P.W.14 Dr. S. Gangadharan was the Radiology Specialist at District Headquarters Hospital, Phulbani who on examination of the x-ray plates of the victim, opined the age of the victim to be more than twenty one years at the time of examination and accordingly proved his report Ext.11. P.W.15 Dr. Gyanaranjan Biswal was the Assistant Surgeon attached to District Headquarters Hospital, Phulbani who on police requisition examined the petitioner on 15.05.1994 and proved his report Ext.12. P.W.16 Santanu Kumar Padhi was the officer in charge of Purunakatak Police Station who is the Investigating Officer in this case. The prosecution exhibited fifteen documents. Exts.1, 2 and 6 are the seizure lists, Ext.3 is the F.I.R., Exts.4 and 5 are the command certificates, Ext.7 is the medical examination report of the victim prepared by P.W.11, Ext.8 is the consent of victim for medical examination, Ext.9 is the report of the scientific officer (P.W.12), Ext.10/1 is the report of P.W.13, Ext.11 is the report of P.W.14, Ext.12 is the report of P.W.15, Ext.13 is the spot map, Ext.14 is the police requisition for examination of the petitioner and Ext.15 is the police requisition for examination of the victim. The prosecution also proved four material objects. M.O.I is the saree and M.O.II is the blouse of the victim, M.O.III is the dhoti and M.O.IV is the gamucha (napkin) of the petitioner. 7. The learned Trial Court after analyzing the evidence of the witnesses came to hold that the evidence of P.W.2, the victim is creditworthy and the prosecution case of rape by the petitioner as was disclosed from the evidence was believed by him. 7. The learned Trial Court after analyzing the evidence of the witnesses came to hold that the evidence of P.W.2, the victim is creditworthy and the prosecution case of rape by the petitioner as was disclosed from the evidence was believed by him. The learned Trial Court further held that the finding of the doctor that there was no evidence of recent sexual intercourse is not conclusive evidence that the rape was not committed by the petitioner on P.W.2 because the medical evidence cannot displace the evidence of victim woman. The learned Trial Court disbelieved the evidence of D.W.1 and found the petitioner guilty of the offences under sections 450/376 of the Indian Penal Code. The learned Appellate Court has been pleased to hold that although witnesses are cross examined at length, nothing material has been brought out to discard the evidence of the witnesses and further held that the learned Trial Court has rightly believed the evidence of the witnesses. The learned Appellate Court further held that the victim has categorically stated that she had no consent for the sexual intercourse. However, the learned Appellate Court held that the conviction of the petitioner under section 450 of the Indian Penal Code is illegal and cannot be sustained. 8. Mr. Sarbeswar Behera, learned counsel appearing for the petitioner contended that the victim is a major lady and the materials available on record indicate that she was a consenting party and while both the petitioner and the victim were in a compromising position, they were seen by the husband of the victim for which in order to save her own skin, the victim has foisted the case. Learned counsel for the petitioner further contended that medical examination report of the victim as well as the petitioner falsify that there was any kind of forcible sexual intercourse on the victim. The learned counsel further submitted that though the wearing apparels of the victim as well as the petitioner were seized and sent for chemical analysis but the chemical examination report has not been produced and therefore, keeping in view the surrounding circumstances, benefit of doubt should be extended in favour of the petitioner. Mr. Deepak Kumar Pani, learned Addl. The learned counsel further submitted that though the wearing apparels of the victim as well as the petitioner were seized and sent for chemical analysis but the chemical examination report has not been produced and therefore, keeping in view the surrounding circumstances, benefit of doubt should be extended in favour of the petitioner. Mr. Deepak Kumar Pani, learned Addl. Standing Counsel on the other hand submitted that presence of the petitioner at the time of occurrence in the house of the victim has been proved by the evidence of P.W.1 as well as P.W.2 and other witnesses have also stated that they had seen the petitioner running away from the house of the informant. The learned counsel for the State further contended that the victim is a married lady and therefore, she was habituated to sexual intercourse and in such circumstances, absence of injury on her private part cannot be a factor to discard her testimony. It is further contended that when the victim has stated that she had no consent and she was raped forcibly by the petitioner and the petitioner has not taken any such plea of consent, the contention raised by the learned counsel for the petitioner that victim was a consenting party cannot be accepted. It is further stated that when there is concurrent finding by both the Courts below and there are no material discrepancies in the evidence of the victim or any illegality or infirmity in the impugned judgments, it would not be proper to interfere with the same in exercise of the revisional jurisdiction. 9. Adverting to the contentions raised at the Bar by the respective parties and coming first to the medical evidence, it appears that the victim was examined by P.W.11 Dr. Shantilata Das on 15.5.1994 at District Headquarters Hospital, Phulbani which is two days after the occurrence. The doctor did not find any external injury over the body of the victim. Secondary sex character was found well developed and no injury was found on the breast of the victim. On internal examination, no fresh injury was found present over the vulva. No foreign hair or matting of hair was present. The doctor did not find any external injury over the body of the victim. Secondary sex character was found well developed and no injury was found on the breast of the victim. On internal examination, no fresh injury was found present over the vulva. No foreign hair or matting of hair was present. The doctor opined that there is no evidence of recent sexual intercourse and there is no external injury present over the body and foreign hair and seminal stain were found absent over the private part and examination of vaginal smear indicated absence of spermatozoa. The medical examination report was marked as Ext.7. In the cross examination, the doctor has stated that vaginal spermatozoa alive will remain present for 72 hours and dead spermatozoa may be available beyond 72 hours. The doctor has further stated that in case force is used for sexual intercourse and the victim tries to resist, there would be external injury on the abdomen, chest, back, limbs etc. P.W.13 Patitapaban Panigrahi, the Pathology Specialist examined the vaginal fluid collected from the victim by P.W.11 and he opined that plain smear examination did not reveal either living or dead spermatozoa. P.W.14 Dr. S. Gangadharan conducted ossification test of the victim and after analyzing x-ray plates, he opined that the age of the victim was more than 21 years. His report has been marked as Ext.11. The petitioner was medically examined by P.W.15 Dr. Gyanaranjan Biswal on 15.05.1994 who stated that there was no scratch mark, no injury and there was no discharge and smegma was found absent and he found that the petitioner was capable of performing sexual intercourse but there was no sign of recent sexual intercourse and there was no injury on the private parts of the body. Therefore, the medical examination reports of the victim and the petitioner are totally silent regarding commission of forcible sexual intercourse. However, absence of corroboration from the medical evidence cannot be the sole factor to discard the evidence of the victim if it otherwise inspires confidence particularly when the victim is a married lady and there is delay of two days in her medical examination. 10. However, absence of corroboration from the medical evidence cannot be the sole factor to discard the evidence of the victim if it otherwise inspires confidence particularly when the victim is a married lady and there is delay of two days in her medical examination. 10. Coming to the oral evidence relating to commission of rape, in the First Information Report, the informant (P.W.1) has mentioned that when he returned home on 13.5.1994 at about 12.00 noon, he found that his wife (P.W.2) and the petitioner were indulged in sexual intercourse inside a room for which he locked the door of the house and went to call others. He has not mentioned to have heard any shout of the victim before seeing them indulged in sexual intercourse. In the evidence, P.W.1 has stated that on the date of occurrence at about noon, when he came back to his house and opened the Tatti (door) of the bed room, he saw the petitioner was having sexual intercourse with the victim (P.W.2). He further stated that P.W.2 was lying down and she was trying to escape from the clutches of P.W.1 who was forcibly lying upon her and having sexual intercourse with her. He further stated that he closed the door of the bed room and went to call the father of the petitioner. The victim (P.W.2) has stated that on the date of occurrence when she was alone in her bed room, the petitioner came to her bed room and enquired from her as to where P.W.1 had gone and she told that P.W.1 had been to cook rice in a marriage ceremony and then the petitioner forcibly dragged her to the bed room and committed rape on her in spite of her protest. She further stated that when the petitioner was forcibly having sexual intercourse with her, P.W.1 came and saw the occurrence and closed the tatti (door) of the bed room and went to village to call Bhadraloks where after the petitioner ran away to his house by cutting tatti of her bed room. It has come from the evidence of P.W.1 that the houses of other persons are close to his house and those persons were residing in their respective houses with their family. Nobody has stated to have heard any shout of the victim. It has come from the evidence of P.W.1 that the houses of other persons are close to his house and those persons were residing in their respective houses with their family. Nobody has stated to have heard any shout of the victim. P.W.1 has not stated either in the F.I.R. or in the chief examination to have heard any shout of the victim prior to seeing the petitioner committing sexual intercourse with the victim. Though the victim has stated that she was forcibly dragged and in spite of her vehement protest, the petitioner forcibly committed sexual intercourse with her but the medical evidence is completely silent in that respect. There is no evidence that at the time of commission of the crime, the victim was either threatened with any weapon or her mouth was gagged or her hands and legs were tied and therefore, in such a situation a married lady like P.W.2 would have raised protest against the commission of rape by the petitioner and in that event there was chance of external injuries both on the victim as well as on the petitioner. It is the prosecution case that P.W.1 saw the petitioner and the victim were having sexual intercourse inside the bed room. It is most peculiar that in spite of noticing the arrival of her husband, the victim has not sought for his help to rescue her from the petitioner. If the victim was protesting and shouting at the time of commission of rape as stated by her and P.W.1 came at that point of time, he would have first tried to rescue the victim and apprehend the petitioner but his peculiar conduct in closing the door of the bed room without any kind of protest and going away to the neighbourhood to call others including the father of the petitioner appears to be an unbelievable story which rather suggests that perhaps he saw both the victim and the petitioner in a compromising position and the victim also noticed the arrival of her husband and therefore, in order to save her skin, chance of false implication of the petitioner by the victim cannot be ruled out. The evidence of the witnesses who have seen the petitioner running away from the house of the informant is not very much material for arriving at a conclusion that the petitioner raped the victim inasmuch as even in a case of consent for sexual intercourse inside the bed room, when it was detected, ordinarily it was expected from the petitioner to escape from the spot. The wearing apparels of the victim as well as the accused were sent for chemical analysis but the prosecution has not made any attempt to prove the chemical analysis report. The evidence of the witnesses as well as the surrounding circumstances coupled with the medical examination reports of the victim and the petitioner goes against the prosecution case relating to commission of forcible sexual intercourse on the victim by the petitioner. Both the Courts below have proceeded pedantically without making an in depth analysis of facts and circumstances and evidence led in the trial in its proper perspective. 11. In view of the facts and circumstances discussed above, I am not able to agree with the findings of the Courts below and accordingly hold that the case against the petitioner has not been established by the prosecution beyond all reasonable doubt. In the result, the revision petition is allowed and the impugned judgment and order of conviction and the sentence passed there under are hereby set aside and the petitioner is acquitted of the charge under section 376 of the Indian Penal Code.