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2017 DIGILAW 39 (ORI)

Gopal Charan Satpathy v. State of Orissa

2017-01-05

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Gopal Charan Satpathy faced trial in the Court of learned Assistant Sessions Judge, Cuttack in S.T. Case No.97 of 1991 for offence punishable under section 376 of the Indian Penal Code on the accusation that on 14.01.1991 at about 7.30 a.m. in Room No.4-C of Bikram Lodging, Thoriasahi, Cuttack, he committed rape on ‘PD’ (hereafter ‘the victim’), wife of Manguli Charan Dash (P.W.6) of Madhu Sasan, P.S. Patkura, Dist-Kendrapara. The learned Trial Court vide impugned judgment and order dated 27.09.1991 found the petitioner guilty under section 376 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.500/-(rupees five hundred only), in default, to undergo further R.I. for a period of one year. The petitioner preferred an appeal before the Court of Session which was heard by the learned 1st Addl. Sessions Judge, Cuttack in Criminal Appeal No. 109 of 1991. The learned Appellate Court vide judgment and order dated 09.03.1994 upheld the order of conviction and sentence of imprisonment passed by the learned Trial Court but set aside the imposition of fine amount with the default sentence. The petitioner preferred a revision petition before this Court which was registered as Criminal Revision No.337 of 1994 and this Court vide order dated 03.02.2000 set aside the judgment of learned Appellate Court and remitted the matter back to the learned Appellate Court for fresh disposal in accordance with law as the Appellate Court while disposing of the appeal did not hear the counsel for the petitioner nor even engaged amicus curiae for the petitioner. After remand, the learned 1st Addl. Sessions Judge, Cuttack in Criminal Appeal No. 109 of 1991 passed the impugned judgment on 21.07.2000 dismissing the appeal and upholding the impugned judgment and order of conviction of the learned Trial Court and the sentence passed thereunder, which is assailed in the present revision petition. 2. After remand, the learned 1st Addl. Sessions Judge, Cuttack in Criminal Appeal No. 109 of 1991 passed the impugned judgment on 21.07.2000 dismissing the appeal and upholding the impugned judgment and order of conviction of the learned Trial Court and the sentence passed thereunder, which is assailed in the present revision petition. 2. The prosecution case, as per the First Information Report lodged by the victim (P.W.7) on 14.01.1991 before the Officer in charge, Mangalabag police station is that she was suffering from some stomach ailment and came to Cuttack to check her health at S.C.B. Medical College & Hospital, Cuttack and she left the village with her husband and the petitioner on 13.01.1991 at about 3.00 p.m. and arrived at Cuttack in the evening on that day. All of them stayed in Room No.4-C of Bikram Lodging, Thoriasahi, Cuttack. In the morning on 14.01.1991 at about 7.30 a.m., the petitioner sent the husband of the victim to bring some Gudakhu and tooth twig from the nearby market. After the husband of the victim left the room, the petitioner locked the door of the room from inside and asked the victim to allow him to have sexual intercourse with her to which the victim opposed. The petitioner forcibly lied down the victim on the cot and then committed sexual intercourse with her. It is further stated in the F.I.R. that since the victim was ailing, she was not having sufficient strength to prevent the petitioner from committing the sexual intercourse. At the time of commission of offence, the petitioner was wearing a lungi. After committing the rape, the petitioner left the room in question wearing the lungi. The victim disclosed about the incident before her husband when he arrived in the room after returning from market. Fifteen to twenty minutes thereafter, the petitioner again came to that room but out of fear neither the victim nor her husband challenged anything to him. With a pretext of purchasing a necklace, the victim and her husband left the lodging and came outside leaving their articles inside the room. They met a man on the road before whom the husband of the victim narrated about the incident and asked for his suggestion who advised them to report the matter at Mangalabag Police Station and accordingly, both the victim and her husband came to Mangalabag Police Station in a rickshaw. They met a man on the road before whom the husband of the victim narrated about the incident and asked for his suggestion who advised them to report the matter at Mangalabag Police Station and accordingly, both the victim and her husband came to Mangalabag Police Station in a rickshaw. The oral information given by the victim was reduced into writing by Addl. Inspector in charge, Basanti Mishra, who read over and explained the contents of the same to the victim in presence of her husband and the victim and her husband put their signatures, which was treated as F.I.R. (Ext.11). The Addl. Inspector in charge directed P.W.8 Jayadev Sarangi, S.I. of police to take up investigation of the case. During course of the investigation, P.W.8 examined the victim, seized her saya (M.O.I) at the police station in presence of the witnesses under seizure list Ext.4. He also examined the husband of the victim, visited the spot i.e. Room No.4-C of Bikram Lodging on the second floor situated at Thoria Sahi, Cuttack under Magalabag Police Station. The lodging register, one white bed sheet and one pink bed sheet were seized under seizure list Ext.6 and the lodging register was left in the zima of the Manager of the lodging. P.W.8 apprehended the petitioner on the very day on Mahanadi embankment near Jobra and brought him to the police station, where the check lungi of the petitioner was seized under seizure list Ext.5. The victim and the petitioner were sent to F.M.T., S.C.B. Medical College and Hospital, Cuttack for examination. The Investigation Officer also sent the saya (M.O.I) and lungi (M.O.II) to Prof., F.M.T. for seeking opinion as to whether those wearing apparels contained any seminal stains or not? The petitioner was arrested on 14.01.1991 at about 4.30 p.m. and on the next day, he was forwarded to the Court. The Havildar and the constable who had accompanied the victim and the petitioner to the F.M.T. Department for their medical examination, produced six numbers of sealed packets containing saya (M.O.I), lungi (M.O.II), vaginal swab etc. which were handed over to them by the doctor and those were seized by P.W.8 under seizure list Ext.3 and sent to S.F.S.L., Rasulgarh for examination and report. After completion of investigation, on 14.02.1991 the Investigating Officer (P.W.8) submitted charge sheet against the petitioner under section 376 of the Indian Penal Code. 3. which were handed over to them by the doctor and those were seized by P.W.8 under seizure list Ext.3 and sent to S.F.S.L., Rasulgarh for examination and report. After completion of investigation, on 14.02.1991 the Investigating Officer (P.W.8) submitted charge sheet against the petitioner under section 376 of the Indian Penal Code. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the petitioner under section 376 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. 4. The defence plea of the petitioner was that prior to the occurrence, the victim was suffering from stomach problem and since she was not cured in spite of taking medicine from the village quack, on the request of the husband of the victim on 13.01.1991, the petitioner accompanied the victim as well as her husband from their village Madhu Sasan and came to Cuttack in a bus. The petitioner had also some work at Cuttack. At Badambadi bus stand, they met one Ghanashyam Sahu who happened to be the friend of the petitioner and on his advice, all of them came to Bikram Lodging and the victim and her husband occupied Room No.4-C of the lodging and the petitioner returned to the house of Ghanashyam Sahu. On the next day morning at about 6.00 a.m., the petitioner came to the lodging and kept his attache inside of the room and keeping the wearing apparels, he went to bath room to attend the call of nature. It is the further defence plea that there was cash of Rs.370/-in his pant pocket and cash of Rs.2000/-in his attache, which he had brought for purchasing the iron rods. The petitioner found that cash of Rs.370/-which was there inside the pant pocket was available but cash of Rs.2000/-which was there inside the attache was missing. The petitioner asked both the victim as well as her husband about such missing money but since they pleaded ignorance, the petitioner decided to lodge a report against the victim and her husband. The petitioner found that cash of Rs.370/-which was there inside the pant pocket was available but cash of Rs.2000/-which was there inside the attache was missing. The petitioner asked both the victim as well as her husband about such missing money but since they pleaded ignorance, the petitioner decided to lodge a report against the victim and her husband. At that time, the husband of the victim told the petitioner that he would bring the amount from his brother-in-law who is staying at Jagatpur and saying so, both the P.W.6 and P.W.7 left the lodging but proceeded to Mangalabag Police Station and foisted the case. It is the specific case of the petitioner that in the relevant night, he did not stay with P.W.6 and P.W.7 in the room in question of Brikram Lodging and there was no such occurrence as alleged and a false case has been foisted against him. 5. During course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 Rabindra Kumar Samal was the Manager of Bikram Lodging, Thoriasahi, Cuttack who stated about the occupation of Room No.4-C of the lodging by the victim, her husband and the petitioner on 13.01.1991. He also proved the signatures of the occupants in the register of the lodging. He further stated about the seizure of guest register, printed bed sheet, light colour check bed sheet by the police on 14.01.1991. He specifically stated that the petitioner stayed in Room No.4-C along with the victim and her husband. P.W.2 Pitambar Routray was the constable attached to Mangalabag police station who accompanied the petitioner and the victim to S.C.B. Medical College and Hospital, Cuttack for their examination and after examination, he produced the sealed packets containing lungi, saya, pubic hair before the Officer in charge of Mangalabag Police Station which were seized under seizure list Ext.3. P.W.3 Govind Chandra Mallik was the S.I. of Police attached to Mangalabag police station who stated about the seizure of saya of the victim by the Investigating Officer on 14.01.1991 as per seizure list Ext.4. He also stated about seizure of check lungi of the petitioner under seizure list Ext.5. P.W.4 Rabi Naik was the room boy of Bikram Lodging and he stated about the seizure of bed sheets and guest register of the lodging as per the seizure list Ext.6. P.W.5 Dr. He also stated about seizure of check lungi of the petitioner under seizure list Ext.5. P.W.4 Rabi Naik was the room boy of Bikram Lodging and he stated about the seizure of bed sheets and guest register of the lodging as per the seizure list Ext.6. P.W.5 Dr. Jyotin Kumar Dash was the lecturer, Department of F.M.T., S.C.B. Medical College and Hospital, Cuttack who on police requisition examined the victim as well as the petitioner on 14.01.1991 and proved the medical reports Ext.7 and Ext.9. P.W.6 Manguli Charan Dash is the husband of the victim who stated about his stay in the Bikram Lodging on 13.01.1991 with the victim and the petitioner and also stated that on the date of occurrence when he returned back without Gudakhu and tooth twig to the room in question, the victim disclosed before him about the occurrence. He is also a witness to the seizure of saya of the victim under seizure list Ext.4. P.W.7 is the victim who narrated the incident and she also stated about the seizure of her saya under seizure list Ext.4. P.W.8 Jayadev Sarangi is the Investigating Officer. The prosecution exhibited fifteen documents. Ext.1 is the relevant column of Hotel Guest Register, Ext.2 is the Zimanama, Exts.3, 4, 5 and 6 are the seizure lists, Ext.7 is the medical report, Exts.8 and 10 are the forwarding reports, Ext.9 is the medical report, Ext.11 is the F.I.R., Exts.12 and 13 are the F.M.T. reports, Ext.14 is the Chemical examination report and Ext.15 is the Serological report. The prosecution also proved two material objects. M.O.I is the saya and M.O.II is the lungi. The defence did not examine any witness in support of the defence plea. 6. The learned Trial Court analyzing the evidence on record came to hold that on 13.01.1991 at night the petitioner stayed with P.W.6 and P.W.7 in Room No.4-C of the Bikram Lodging and that on the date of incident at the relevant time, the petitioner forcibly committed sexual intercourse with the victim (P.W.7) without her consent and desire and that the semen which was stained in the saya of the victim is the semen of the petitioner and the said semen came out of his penis during the sexual act. The learned Trial Court further held that the fact of intercourse done by the petitioner on the victim at the relevant time in question is correct. The learned Trial Court discarded the defence plea and came to hold that on the date of occurrence at the relevant time inside the Room No.4-C of Bikram Lodging, the petitioner raped the victim. The learned Appellate Court held that the petitioner came along with P.W.6 & P.W.7 and stayed in the Bikram lodging occupying room No.4-C of the said lodging. It was further held that in view of the material findings of semen in saya and lungi and vaginal swab of the victim, it can be said that the semen found in the saya, lungi and vaginal swab was that of the petitioner. The learned Appellate Court further held that the plea taken by the petitioner cannot be believed in view of the statements of the witnesses and there is nothing to disbelieve in the statements of the witnesses nor any contradictory statements have been brought out from the mouth of the witnesses. 7. Mr. Devashis Panda, learned counsel appearing for the petitioner contended that the evidence of the prosecutrix is highly suspicious and the medical examination report of the victim negatives any forcible sexual intercourse with her by the petitioner and the material questions relating to findings of the chemical analysis report and serological report have not been put to the petitioner in the accused statement and therefore, he has been deprived of answering the incriminating circumstances against him. He further contended that the learned courts below have mechanically accepted the evidence adduced by the prosecution and therefore, the order of conviction is not sustainable in the eye of law. Mr. Deepak Kumar, learned Addl. Standing Counsel on the other hand placed the evidence of the victim, her husband as well as the medical evidence and the findings of both the Courts below and contended that there is no illegality or impropriety in the impugned judgments and in view of the clinching evidence of the victim, there is no scope for interference in the revision petition and the concurrent findings of facts should not be disturbed by exercising revisional jurisdiction and therefore, the revision petition should be dismissed. 8. 8. Considering the submissions made by the learned counsels for both the parties and on going through the evidence on record as well as the findings given by the learned Trial Court and the learned Appellate Court, I find that there are certain improbable features overlooked by both the Courts below. The victim being examined as P.W.7 has stated that at the time of occurrence, she severely protested to the petitioner who did not listen to her words and committed forceful sexual intercourse against her will and desire. She further stated that she tried to escape from the clutches of the petitioner but could not do so due to her illness. In her cross-examination, the victim has stated that while she was folding the bed sheets of the Cot, at that time the incident took place and the petitioner forcibly caught hold of her hands and legs and made her lie on the Cot for the purpose of sexual intercourse. She has stated that she has not bitten or gave nail scratches on the body of the petitioner. She further stated that during sexual intercourse, the petitioner had not squeezed her breast nor he had touched her breast or her vagina in his hand and the petitioner did not kiss her or bite her cheeks nor even touched her face with his face during the course of sexual act. She further stated that when the petitioner forcibly tried to penetrate his penis into her vagina, at that time she tried to close both of her thighs but could not succeed as the petitioner separated both of her thighs with his hands applying much force. He further stated that at the time of commission of forcible intercourse, the petitioner caught hold of her both the hands till the entire sex act was over and that she didn’t raise any hullah in loud voice at the time of sexual act. She further stated that when the petitioner caught hold of her both hands and tried to penetrate his penis into her vagina, she tried to move this side and that side to escape from the said penetration but could not succeed in the same and there was a struggle between her and the petitioner for about ten minutes. She further stated that at the time of occurrence, she was wearing Sankha Chudi but her Sankha Chudi were not broken. She further stated that at the time of occurrence, she was wearing Sankha Chudi but her Sankha Chudi were not broken. The victim has specifically stated that the talk of the room in question can be audible if one passes in the adjoining verandah of the room in question. The statement of the victim projects certain improbable features. If according to her evidence, the petitioner caught hold of her both the hands with his hands from the beginning till end of the sexual act and the victim tried to close both her thighs then the statement of the victim that the petitioner separated both of her thighs with his hands by applying force cannot be accepted. When the petitioner was trying to separate the thighs of the victim by using his hands, she could have used her hands and legs to prevent the petitioner from committing the sexual intercourse. It is also an improbable feature that during commission of sexual act, the petitioner had not touched the breast, face and the vagina of the victim. Even though the victim has stated that there was a struggle between her and the petitioner for about ten minutes and when the petitioner tried to penetrate the penis into her vagina, she was moving to this side and that side to escape from penetration, the Medical Officer who examined the victim on the very same day within few hours has stated that he didn’t find any external or internal injury in the vagina or genital organ of the victim and no foreign/loose pubic hairs were found and no external injury or incriminating stains were found in her thighs or in the breast and its vicinity or on her cheeks. The doctor has stated that there was no recent sexual intercourse and ‘recent sexual intercourse’ according to him is within 24 hours from the time of examination. It is pertinent to note that the occurrence in question stated to have been taken place on 14.01.1991 in the morning hours and on the very day at about 2.10 p.m. on police requisition, the victim was examined by P.W.5. The victim has specifically stated to P.W.5 during her examination that she had not taken any bath nor attended toilet till the examination and only she has changed her clothing. The victim has specifically stated to P.W.5 during her examination that she had not taken any bath nor attended toilet till the examination and only she has changed her clothing. The petitioner was also examined on that day by P.W.5 and it was found that there was no recent injury detected in the penis and no loose public hairs were recovered from the pubic region of the petitioner. The chemical examination report which has been marked as Ext.14 indicates that the saya (M.O.I) of the victim as well as lungi (M.O.II) of the accused were containing semen stains and those were of human origin and of ‘O’ group and the vaginal swab of the victim was also found to be of ‘O’ group. According to the doctor, the blood group of the victim was ‘O’ so also that of the petitioner. In this case, admittedly the blood group of the husband of the victim has not been examined. Since the victim is a married lady who stayed together with her husband in the previous night of the date of occurrence, without the examination of the husband’s blood group/semen group, the Courts below should not have jumped to the conclusion that the semen stain found on the saya and semen found in the vaginal swab of the victim was that of the petitioner. The possibility of such semen being that of the husband of the victim cannot be ruled out. Admittedly in the accused statement, the findings of the chemical examination report and serological examination report have not been put to the petitioner to give an opportunity for explanation. Law is well settled that the circumstances which are not put to the accused in his examination under section 311 of Cr.P.C. cannot be used against him and must be excluded from consideration. Accused statement has got twin purpose. It gives opportunity to the accused to furnish explanation and where the accused denies the established facts, remains silent or offers false explanation, adverse inference can be drawn in appropriate cases as the balance tilts in favour of the prosecution. Since the incriminating material evidence appearing in the documents like Exts.14 and 15 have not been put to the petitioner in his accused statement, the Courts below should not have used those materials against the petitioner. Since the incriminating material evidence appearing in the documents like Exts.14 and 15 have not been put to the petitioner in his accused statement, the Courts below should not have used those materials against the petitioner. The husband of the victim was examined as P.W.6 and he has stated that on the date of occurrence when he did not find Gudakhu and tooth twig in the market, he returned back to the upstairs of the lodging and found the petitioner was coming from the room in question to the downstairs and he told the petitioner that he could not find Gudakhu and tooth twig. The petitioner told him that he would arrange the same from the hotel boy and left towards the ground floor. The victim stated in her evidence that twenty to twenty five minutes after the sexual act and departure of the petitioner, her husband entered into the room in question. If the petitioner had left the room in question immediately after the sexual act was over as stated by the victim and the husband of the victim arrived in that room twenty to twenty five minutes thereafter, it appears improbable that he would meet the petitioner on the staircase. In the first information report, it is mentioned that after the commission of sexual act by the petitioner, the husband of the victim came to the room in question from the market and thereafter the petitioner also came to that room and stayed there which appears to be another improbable feature. During trial, the said part of the prosecution case which has been mentioned in the first information report has been given a go bye. The prosecution case is that after the victim and her husband left the spot room in question, they met one person on the road who advised them to go to the police station and lodge the report. The said person has not been examined. The evidence of the Investigating Officer is that he caught hold of the petitioner from the river embankment at Jobra and the petitioner produced the lungi in which semen stains were found. It appears to be an improbable story that the petitioner without taking any steps to wash off the semen stains in the incriminating lungi and without trying to abscond would move at a nearby place to the police station with such lungi. It appears to be an improbable story that the petitioner without taking any steps to wash off the semen stains in the incriminating lungi and without trying to abscond would move at a nearby place to the police station with such lungi. Failure of the accused to prove the defence plea even by preponderance of probabilities would not ipso facto prove the prosecution case which has to stand on its own legs. No weakness in the defence case can come to its rescue so far as the burden to prove the guilt of the accused satisfactorily and beyond reasonable doubt. Law is well settled that though the High Court ordinarily does not interfere with the findings of facts or makes a re-appraisal of the evidence in its revisional jurisdiction but in special and exceptional circumstances, the Court is entitled to go into the questions of fact where acceptance of the opinion of the Courts below is likely to lead to miscarriage of justice or where the conscience of the Court is satisfied that in the broad interest of justice, the findings and the conviction are not sustainable. Miscarriage of justice arises when the Courts below overlooked the vital evidence or did not consider the evidence in its true prospective. If the judgment is unreasonable and unfounded, the Court can interfere with the concurrent findings of facts. 9. In view of the infirmities in the prosecution case as discussed above, when the material evidence have been overlooked by both the Courts below which according to my opinion has resulted in causing serious miscarriage of justice and prejudice to the appreciation of the evidence so far as the petitioner is concerned, I am of the humble view that the impugned judgments and orders of conviction are not sustainable in the eye of law. Accordingly, the revision petition is allowed. The impugned judgment and order of conviction of the petitioner under section 376 of the Indian Penal Code and the sentence passed there under is hereby set aside. The petitioner who is in jail custody in pursuance of the warrant issued by this Court should be released forthwith if he is not required in any other case. In the result, CRLREV petition is allowed.