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2017 DIGILAW 450 (ORI)

Ajit Naik v. State of Odisha

2017-04-21

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S.PUJAHARI, J. In this appeal, the appellant who stood convicted under Sections 376 and 506 of the Indian Penal Code (for short “I.P.C.”) and sentenced to undergo R.I. for ten years and to pay a fine of Rs.10,000/-, in default, to undergo further imprisonment for a period of one year and also to undergo R.I. for a period of one year respectively, calls in question the legality of the judgment of conviction and order of sentence passed by the learned Asst. Sessions Judge, Baliguda in S.T. No.10 of 2012. 2. Facts, briefly stated, are that the victim lady (P.W.10), on 05.09.2011 around 3 p.m. had been to Alingagadanala in village-Jamighati to defecate. Finding her alone, the appellant forcibly emerged at that spot from behind, gagged her mouth and forcibly pulled her to a lonely place. She made efforts to escape and begged the appellant to leave her she being his relative. Notwithstanding, in an erotic impulse, the appellant threatened her at a knife point to kill if she shout for help and try to escape. Succumbing to the threat, she remained silence and the appellant committed rape on her. After he devoured her, the appellant also threatened her with dire consequences if she divulged the matter before others. The victim on arriving home narrated before her husband and elder brother of her husband as to how despite her protest the appellant at a knife point ravished her to satisfy his sexual appetite. She having sustained pain for such ravishment, no report could be lodged immediately thereafter. On advice of villagers, on 07.09.2011 the victim and her husband – Puleswar Naik (P.W.11) proceeded to the Tumudibandha Police Station and lodged F.I.R and the matter was investigated into. The victim and the appellant were sent for medical examination. After due investigation, charge-sheet was laid by the Investigating Officer (P.W.18) against the appellant under Sections 376 and 506 of IPC. The appellant pleaded not guilty to the charges and advanced a plea of false implication. To substantiate the charges against the appellant, the prosecution examined altogether 19 witnesses. P.W.10 is the victim, P.W.11 is her husband and P.W.12 is the doctor who medically examined the victim and the appellant. P.Ws.1, 3, 14 and 15 are relatives of the victim before whom the victim had narrated the alleged sexual act committed by the appellant. P.W.18 is the Investigating Officer. P.W.10 is the victim, P.W.11 is her husband and P.W.12 is the doctor who medically examined the victim and the appellant. P.Ws.1, 3, 14 and 15 are relatives of the victim before whom the victim had narrated the alleged sexual act committed by the appellant. P.W.18 is the Investigating Officer. Besides, few neighbours and persons in whose presence articles were seized, were also examined. Defence chooses not to examine any witness. After careful study of the entire evidence placed on record and accepting the version of the victim corroborated by other witnesses, the learned trial court concluded that the appellant was guilty of the offence under Sections 376 and 506 of IPC and convicted thereunder. 3. The learned counsel for the appellant has submitted that in absence of corroboration from medical evidence, and other witnesses being close relatives of the victim and there being unexplained delay in lodging the information, no reliance ought to have been placed on the testimony of the victim to hold the appellant guilty, as aforesaid. 4. Per contra, the learned Addl. Government Advocate for the State has supported the impugned judgment of conviction. It has been submitted that there is no reason to discredit the testimony of the victim who stood firm in her version and when no substantial material elicited to discard her testimony which is corroborated from her immediate conduct. Replying to the criticism with regard to the medical evidence by the learned counsel for the appellant, the learned Addl. Government Advocate has contended that corroboration by medical evidence is always not essential to establish the offence of ‘rape’ particularly when the victim is a married lady and accustomed to sexual intercourse. 5. The questions raised at the Bar need careful evaluation of evidence. In essence, the contention of the learned counsel for the appellant is that the testimony of the victim has not been corroborated in material particulars by medical evidence. So, the moot question that arises is whether the solitary testimony of the victim if it is accepted to be truthful, conviction can be based on such testimony notwithstanding absence of corroboration from medical evidence. It is well settled law that sole testimony of the victim/prosecutrix is sufficient to hold guilty to the perpetrator of the crime. So, the moot question that arises is whether the solitary testimony of the victim if it is accepted to be truthful, conviction can be based on such testimony notwithstanding absence of corroboration from medical evidence. It is well settled law that sole testimony of the victim/prosecutrix is sufficient to hold guilty to the perpetrator of the crime. The Court, therefore, is entitled to base a conviction on her sole evidence unless the same is shown to be tainted and not worthy of credence. If the totality of the circumstances appearing on the record of the case discloses that the victim does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her testimony. It transpires from such settled law that ordinarily the evidence of a victim who does not lack understanding must be accepted. [See Karnel Singh vrs. State of M.P., AIR 1995 S.C. 2472 ] and State of Maharashtra vrs. Chandra, AIR 1990 SC 658 ]. 6. It is also settled law as held in the case of Adam Tirky vrs. State of Orissa, 1993 (I) OLR 265, as follows :- “……..the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity, and the probabilities factor does not render it unworthy of credence, as a general rule there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, evidence can be expected to be forthcoming subject to the qualification that the corroboration may be insisted upon………….” “………. medical evidence is to be judged as any other evidence and that the conclusion reached or the opinion advanced by the Medical Officer is neither conclusive nor binding and that the Court has to reach its conclusion on the totality of the circumstances and the probability of the occurrence after weighing each place of evidence.” In the aforesaid case, though the evidence of the doctor did not show that the victim was subjected to forcible sexual intercourse, but the evidence of the victim found to be cogent and reliable. 7. In the aforesaid backdrop, I have to scan the evidence of the victim keeping in mind that the victim is a married lady who is habituated to sexual intercourse. 7. In the aforesaid backdrop, I have to scan the evidence of the victim keeping in mind that the victim is a married lady who is habituated to sexual intercourse. In her inimitable style the victim has given a photographic description of the occurrence where the appellant gagged her mouth and dragged her to a nearby place where she was raped at a knife point. She has indicated that the appellant tore her wearing apparels subsequently seized by the police under Ext.3. Of course, the victim has stated that the surface where she was dragged and laid and ravished was a plain surface having grass and bushes. She said to have sustained some abrasion on the leg being dragged by the appellant. She has narrated as to how she made valeant effort to extricate herself but she was restricted. She has given the topography of the place where she was residing then. Since her wearing apparels were not produced for identification, prosecution lost a valuable piece of evidence in this process. However, for improper investigation and process of trial, the victim cannot be held responsible. She denies the defence suggestion of false implication and deposed with aplomb that she had no enmity with the appellant at any time. In fact, the victim has stated that she has sustained a small abrasion on her leg and the nail mark on her breast but that was not reflected in the injury report submitted by the doctor who had examined her. However, because of absence of injury in the medical report, testimony of the victim cannot be thrown out. She being a married lady was habituated to sexual intercourse and small abrasion and nail mark may not attract the notice of the doctor. In this regard, a reliance can be placed on a decision of this Court in the case of Lakhia @ Laxmidhar Sahu vrs. State, (1997) 12 OCR 259, wherein it has been held as follows :- “…….It must also be remembered that the reaction of the vaginal mucosa to a penetrating foreign body is to lubricate, and therefore even in non-consenting intercourse there will be a certain amount of lubrication produced during the act, even if lubrication was lacking on initial penetration. The frequently repeated myth that the vagina will remain dry in non-consenting intercourse with the resulting production of serious abrasion and bruising is entirely untrue. The frequently repeated myth that the vagina will remain dry in non-consenting intercourse with the resulting production of serious abrasion and bruising is entirely untrue. In the case of sexually experienced women, and those who have born children, signs of even the most minor vaginal injury may well be absent. This Court in the case of Dinabandhu Behera vrs. State of Orissa, reported in (1995) 8 OCR 123, has held as follows :- “Absent of injuries on the person of the victim may not be fatal to the prosecution and corroborative evidence may not be an imperative component of judicial credence in rape cases.” Thus absence of injury cannot be a factor to rule out the allegation of rape.” 8. As held in the referred case, the contention of the learned counsel for the appellant that the evidence of the victim being discredited by the medical opinion, no implicit reliance can be placed has no peg to hang. Keeping in view the marital status of the victim and when there was no reason for her to implicate the appellant as rapist, evidence of the victim has really not been shaken to any extent. She has denied existence of any hostile animus against the appellant and any oblique motive to implicate him. She denied the defence suggestion of existing land dispute between the two families. It is also the settled law that uncorroborated testimony of the victim cannot be the basis of conviction only when the same is discredited by telling circumstances. There is absolutely no telling circumstances emanating from the evidence to disbelieve P.W.10. That apart, there is not even feint suggestion that it was consensual sexual intercourse. In the case of Braham Swarup vrs. State of U.P., 2010 (4) Crimes 267 (SC), it is held that merely because the witnesses are closely related, their testimonies cannot be discarded. More so, a relation would not conceal the actual culprit and makes the allegation against an innocent person. The immediate conduct of the victim in disclosing about the incident before her husband and other relatives is admissible as Res gestae under Section 6 of the Indian Evidence Act as it is a spontaneous statement connected with the fact in issue and there was no time interval for concoction or fabrication. The immediate conduct of the victim in disclosing about the incident before her husband and other relatives is admissible as Res gestae under Section 6 of the Indian Evidence Act as it is a spontaneous statement connected with the fact in issue and there was no time interval for concoction or fabrication. The victim has affirmatively stated that there was otherwise no enmity as well as between the families and denied the defence suggestion that no rape committed by the appellant. In such tail circumstances I have given my anxious consideration to the evidence of the victim from all angles but did not find any pinch of evidence to disbelieve and discard her evidence. Her testimony was accepted by the learned trial court as reliable, trustworthy and confidence inspiring. The probabilities factor brought on record also does not render it unworthy of credence and it cannot be said to be out of tune. In the premises, I do not find any material to disagree with the conclusion of the trial court that the victim is a wholly truthful witness and absolute reliance could be placed on her evidence which is consistent and credible. 9. Therefore, I placed absolute reliance on the unimpeachable testimony of the P.W.10 in absence of any telling circumstances to discard such version as did the trial court. Her evidence is corroborated in material particulars from the evidence of P.Ws.2, 3, 4, 11, 14 and 15. So, there is absolutely no impediment to rely upon such testimony to hold the appellant guilty under Sections 376 and 506 of IPC. 10. But, so far as the sentence imposed is concerned, the trial court appears to have imposed a sentence more than the minimum under Section 376 of IPC holding that the victim when had been to defecate as she was suffering from dysentery, the appellant committed rape on her, so it was a aggravating circumstances to impose the sentence more than the minimum. The aforesaid reasoning of the trial court cannot be said to be an aggravating circumstances. The appellant is a man of 23 years old and finding alone the victim when she had been to defecate he committed rape on the victim. Therefore, it cannot be said that the appellant committed the rape on the victim in a brutal manner. The aforesaid reasoning of the trial court cannot be said to be an aggravating circumstances. The appellant is a man of 23 years old and finding alone the victim when she had been to defecate he committed rape on the victim. Therefore, it cannot be said that the appellant committed the rape on the victim in a brutal manner. The appellant has a life to go and must have gone through the mental turmoil and torture and torture for his such action by remaining in jail. The minimum sentence prescribed under Section 376 of IPC is seven years. In such premises, this Court is of the view that there was no justifiable reason to impose the sentence more than the minimum under Section 376 of IPC. Hence, this Court is inclined to reduce the substantive sentence of imprisonment to 7 (seven) years from 10 (ten) years R.I. imposed by the learned trial court with the sentence of fine imposed and default sentence in the facts and circumstances of the case. Accordingly, while upholding the conviction of the appellant under Sections 376 and 506 of IPC and maintaining the sentence under Section 506 of IPC, he is sentenced to undergo R.I. for seven years and to pay a fine Rs.10,000/-, in default, to undergo R.I. for one year with the further order that the substantive sentence shall run concurrently. 11. With the aforesaid modification, this criminal appeal stands dismissed. L.C.R. received be sent back forthwith along with a copy of this Judgment.