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2017 DIGILAW 569 (ORI)

Sudam Majhi @ Hembram v. State of Orissa

2017-05-10

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. PUJAHARI, J. 1. This appeal is directed against the judgment of conviction and order of sentence of the learned Sessions Judge, Keonjhar dated 20.03.2008 passed in S.T. No.215 of 2007, by which the appellants stood convicted under Section 376(2)(g) of the Indian Penal Code, 1860 (for short “the IPC”). The appellant nos.3 and 4 were sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for a further period of one year and other appellants were sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for a further period of six months. 2. Prosecution version, as unfolded during trial, is as follows :- On 21.05.2006 around 8 p.m. while the victim was enroute home having attended the marriage ceremony of Suna Kisku, the appellants appeared like a comet on the road, in erotic impulse they caught hold of her and forcibly took her to an isolated place where appellant – Gulia Murmu followed by appellant – Gulu Majhi forcibly committed rape on her. The other accused persons caught hold of her to facilitate commission of lustful act of Gulia Murmu and Gulu Majhi. Thereafter, the appellants left the victim near her house. They had threatened to kill the victim as well as her father. Terribly frightened the victim did not dare to divulge such horrible act before her father. On the next day morning, the victim accompanied her father’s sister to her village where she stayed for nearly a month. Apparently to avoid that horrible happening she escaped from village. In the meantime, the father of the victim ascertained the fact of rape committed by the appellants. The victim was called back and being confronted she divulged before her parents as to how on that fateful night she was subjected to rape by two of the appellants while other appellants prevented her from raising alarm and to resist the lustful act of those two appellants. In frustration and despair, the sagging father (P.W.5) communicated that horrendous occurrence before the head of their village (P.W.4) who conveyed a village meeting on 17.06.2006. The appellants having confessed their guilt, P.W.4 fixed 18.06.2006 to impose punishment on those culprits. In frustration and despair, the sagging father (P.W.5) communicated that horrendous occurrence before the head of their village (P.W.4) who conveyed a village meeting on 17.06.2006. The appellants having confessed their guilt, P.W.4 fixed 18.06.2006 to impose punishment on those culprits. However, on 18.06.2006 instead of imposing any punishment on the appellants, P.W.4 planted a ‘KANIARI’ branch in front of his house which is a symbol of excommunication, that is to say, P.W.5 was ostracized by their community for the act of the victim and a fine of Rs.7000/- was imposed on him. On that day, P.W.1 lodged a report before the Police Officer, but on the intervention of the villagers, the matter was subsided and he was exempted from paying any fine. Subsequently thereafter, the village community again reiterated their action of ostracizing P.W.5 and again imposed fine of Rs.7500/- for the aforesaid act. There being thus no respite, P.W.5 lodged F.I.R. (Ext.1) on 21.11.2006 alleging the lustful act committed by the appellants. Accordingly, investigation was taken up, the victim was sent for medical examination, incriminating materials were seized and on completion of investigation, charge-sheet was laid against the appellants under Section 376(2)(g) of IPC and appellants faced trial. They denied the accusations and pleaded false implication. It was pleaded that P.W.5 having animosity against them, this false accusation has been made. The trial court placed reliance on the evidence of the prosecution witnesses and convicted the appellants for the offence punishable under Section 376(2)(g) of IPC and sentenced them as aforesaid. 3. The learned counsel for the appellants contended that there being delay over six months in filing of the F.I.R. and there being no satisfactory explanation offered by the prosecution, placing reliance on such evidence of the victim is contrary to law. The other contention of the learned counsel is that P.Ws.1 to 4 having not supported the prosecution case and when the medical evidence negatived the case of rape and particularly when the victim’s family were ostracized by the society on some issue or other, holding the appellants guilty under Section 376(2)(g) of IPC is also unsustainable. 4. The other contention of the learned counsel is that P.Ws.1 to 4 having not supported the prosecution case and when the medical evidence negatived the case of rape and particularly when the victim’s family were ostracized by the society on some issue or other, holding the appellants guilty under Section 376(2)(g) of IPC is also unsustainable. 4. Per contra, the learned counsel representing the State supported the impugned judgment of the trial court, the delay in lodging the F.I.R. being self-explanatory, as evident from the First Information report (Ext.1) and when the victim was subjected to medical examination long after the date of occurrence, the conclusion of guilt recorded by the trial court is overboard and does not call for any second opinion. 5. The learned counsel for the appellant has attacked the judgment of the trial court primarily on four grounds, which according to him, has rendered the prosecution version vulnerable. Firstly, there was delay in lodging F.I.R; Secondly, the victim’s evidence did not inspire confidence, she having not immediately divulged the fact of rape before her parents and her aunt; Thirdly, the medical evidence indicates that the victim was habituated to sexual intercourse and, therefore, her version that she was raped by two of the appellants is not believable. Fourthly, the “probabilities factor” is found to be out of tune. 6. Before adverting to all such contentions with reference to the evidence brought on record and surrounding circumstances, I would like to say that in case of sexual assaults the Court has to take note of the realities of life and should not enter into hyper technicalities. It is well settled law that delay in lodging the F.I.R. cannot be used as a ritualistic formula for doubting the prosecution case if it is otherwise inspire confidence and discarding the same solely on the ground of delay in lodging of the F.I.R. is not the rule of law. The delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the same cannot by itself be a ground for disbelieving and discarding the entire prosecution version as contended. The evidence of P.Ws.5 and 6 read with the averments indicated in the F.I.R. (Ext.1) clearly explained as to why the F.I.R. was lodged almost after six months, evidence of the aforesaid witnesses coupled with inference drawn from Ext.1 clearly shows that P.W.5 when ostracized by the society on 18.06.2006 instead of punishing the appellants who it is said to have confessed their guilt before the community, aggrieved P.W.5 had lodged a report before the police. Soon thereafter, the village community deleted the fine imposed and lifted the order of excommunication and P.W.5 did not pursue the report lodged on the assurance of the village community. However, on 21.11.2006 when the community reimposed the penalty and again ostracized him, the information was lodged. This aspect has been clearly indicated in the F.I.R. (Ext.1) which is apparently lodged on 18.06.2006 as stated by P.W.5, it was not registered possibly for the settlement reached between the parties and was actually registered on 21.11.2006. This explanation of delay right from 21.05.2006 till 21.11.2006 clearly narrated in the F.I.R. was not confronted to P.W.5 nor any question asked to the Investigating Officer (P.W.9) as to why the case was not registered on 18.06.2006 since the Ext.1 appears to have been scribed on 18.06.2006. P.Ws.5 and 6 are subjected to very scanty cross-examination on the question of delay as well as on other aspects touching the core of the charge levelled against the appellants. Both of them stood firm in cross-examination so far the question of delay. In my opinion, the delay as such does not have any adverse impact on the prosecution case. [See:- State of Rajasthan vrs. N.K., AIR 2000 S.C. 1812 ]. 7. On 21.05.2006 the victim had attended the marriage ceremony of Suna Kisku is not disputed. Record further reveals that they being aboriginal, in their marriage both bachelor and spinsters danced together. The case of the prosecution is that while the victim enroute home, the incident occurred. [See:- State of Rajasthan vrs. N.K., AIR 2000 S.C. 1812 ]. 7. On 21.05.2006 the victim had attended the marriage ceremony of Suna Kisku is not disputed. Record further reveals that they being aboriginal, in their marriage both bachelor and spinsters danced together. The case of the prosecution is that while the victim enroute home, the incident occurred. Though she is an illiterate rustic, she has given a photographic narration of the events where appellant – Gulia Murmu followed by appellant – Gulu Majhi committed the sexual act one after the other in between them while other appellants gagged the mouth of the victim and caught hold of her by legs and hands to prevent her escape and raising alarm to facilitate commission of rape. However, by chance arrival of Panchu Majhi (P.W.3) and Hala Majhi (P.W.2), the appellants escaped and the victim narrated before them how she was subjected to rape. Her evidence further reveals that the appellants having threatened to kill her and her father if she dare to divulge the incident, she remained mum and on the next day morning having got an opportunity, she accompanied her aunt to her village. All such aspects remained unshaken in cross-examination. She has also stated that on her arrival home from the village of her aunt, being asked by her parents, she divulged before them as to how she was sexually ravished on that fateful night, but out of fear she did not dare to divulge the incident then and there. The victim is an illiterate rustic aboriginal. In paragraph-3 of her cross-examination she has attributed individual act of all the six appellants vividly. Her evidence also revealed that she did not sustain much bleeding despite she was subjected to rape by two persons. P.Ws.1, 2, 3 and 4 did not support the prosecution case and turned hostile. P.W.4 is the village head before whom P.W.5 had narrated that event and who convened that village meeting, but ultimately ostracized the P.W.5. This witness was not cross-examined by the prosecution. P.Ws.2 and 3, however, cross-examined by the prosecution with permission of the Court where they denied the prosecution’s suggestion that on their arrival near the spot, the appellants took to their heals where the victim narrated before them as to how she was sexually ravished. This witness was not cross-examined by the prosecution. P.Ws.2 and 3, however, cross-examined by the prosecution with permission of the Court where they denied the prosecution’s suggestion that on their arrival near the spot, the appellants took to their heals where the victim narrated before them as to how she was sexually ravished. P.W.7 is the Gynecological Specialist, who on 22.11.2006 on police requisition, Ext.2/2 had examined the victim, had noticed that the vagina of the victim was capacious but he found one healed hymenl tear at 7 O’ clock position which was around six months old. Simultaneously, he has deposed that he did not notice any sign and symptom of recent sexual intercourse the victim when examined on 22.11.2008. P.W.8 is the Radiologist who on 23.11.2006 had conducted ossification test of the victim vide X-ray Plate No.2230 dated 23.11.2006 (4 plates) and opined that the age of the victim was in between 14 to 16 years. 8. So far the age of the victim is concerned, no contemporaneous evidence is forthcoming in proof of her age. The victim being an illiterate rustic and having not been admitted to School, non-availability of such evidence is of no consequence. The father of the victim, who is most competent to depose about the age of the victim, though stated in the F.I.R. that her age was about 15 years on the date of the F.I.R., i.e., 21.11.2006, but did not depose anything in his evidence with regard to the age of the victim. The victim deposed that she was 14 years of age on the fateful day. As seen above, except the evidence of the doctor, i.e., the Radiologist, P.W.8 who on ossification test determined the age of the victim at lower side is 14 years and the higher side is 16 years on the date of his examination and the doctor, P.W.7 who examined the victim giving the aforesaid age to be the age of the victim on the date of her examination, i.e., on 23.11.2006, no other evidence is available. So, the only credible evidence, that is being available with age of the victim, is the evidence of the doctor based on ossification test wherein a margin of 2 years has been taken care of. But, the victim was examined admittedly six months after the occurrence. So, the only credible evidence, that is being available with age of the victim, is the evidence of the doctor based on ossification test wherein a margin of 2 years has been taken care of. But, the victim was examined admittedly six months after the occurrence. In such premises, the age of the victim can safely be held to be below 16 years and, as such, she had not attained the age to consent for sexual intercourse. However, as it appears, the learned counsel for the appellants placing reliance on the evidence of the doctor, P.W.7 that vagina admits two fingers and as such the victim being accustomed to sexual intercourse, has submitted that the evidence of the victim that she was raped has to be taken with a pinch of salt. The same is a no ground to discard the evidence of the victim who is below 16 years of age. Even assuming for the sake of argument that the victim had attained the age of discretion on the date of occurrence and also accustomed to sexual intercourse, that is not a determinative question in a case of rape, more so in a case of “gang rape”. The question which is required to be determined is; did the appellants commit gang rape on the victim on the occasion complained of ? Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to anybody and everybody to rape her. It is the appellants who are on trial and not the victim. Even if the victim in a given case has been promiscuous and is accustomed to sexual behaviour earlier, she has right to refuse to submit herself to sexual intercourse to anyone or everyone because she is not a vulnerable object or a prey for being sexually assaulted by anyone or everyone. It is well settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime. She stands at a higher pedestal than an injured witness. In the latter case, there was injury on the physical form, while in a rape it is both physical as well as psychological and emotional. Otherwise also, the doctor has noticed a healed rupture of hymen at 7 O’ clock position which was around six months old. She stands at a higher pedestal than an injured witness. In the latter case, there was injury on the physical form, while in a rape it is both physical as well as psychological and emotional. Otherwise also, the doctor has noticed a healed rupture of hymen at 7 O’ clock position which was around six months old. Incidentally, the victim was examined by P.W.7 on 22.11.2006 which is apparently six months after the occurrence. 9. Coupled with the same, the victim stated that she was forcibly lifted by all the appellants and subjected to rape which indicates that it was without her consent. Section 114-A of the Indian Evidence Act mandates that when a victim of gang rape deposes that she was subjected to sexual intercourse without her consent, the Court has to presume the same to be without her consent. The learned trial court has discussed all such aspects thread bare. The victim and her parents had no axe to grind against the appellants at any time. There is no reason why the victim would come forward and testify in a serious offence like rape at the cost of her chastity, even if there was no such occurrence at all. The statement of the father of the victim corroborates her in all material particulars and is admissible in evidence and relevant under Section 157 of the Indian Evidence Act. There was absolutely no material to hold a case of concoction and fabrication, the victim and her parents when had no previous enmity with the appellants. Only because P.Ws.2 and 3 turned hostile to the prosecution, one cannot jump to a conclusion that prosecution version is to be discarded outright. The trial court has found the victim and her parents are reliable witnesses. The father would not ordinarily subscribe a false accusation of sexual assault involving her own daughter and thereby putting a stake on the reputation of the family and jeopardizing the future life of his daughter. He was ostracized from the society by P.W.4 when he dares to allege against the appellants in their community. Despite that, P.W.5 lodged F.I.R. which itself suggests that the prosecution version is believable and there is a ring of truth around it. This Court finds the testimony of the victim’s father reliable and lending absolute support to the narration of the incident by the victim. Despite that, P.W.5 lodged F.I.R. which itself suggests that the prosecution version is believable and there is a ring of truth around it. This Court finds the testimony of the victim’s father reliable and lending absolute support to the narration of the incident by the victim. The medical evidence also lends assurance to the version of the victim. No reason has been ascribed nor even suggested with aplomb during cross-examination to them as to why the victim or her father would falsely implicate the appellants roping them in a false charge of rape leaving the whole World aside ? There is also nothing on record even to infer that the victim was above the age of consent and she was a consenting party to the sexual assault made by a gang. When a girl is below 16 years of age, her consent is immaterial as held in the case of Bishnudayal vrs. State of Bihar, AIR 1981 S.C. 39 . Once it is established that accused persons acted in concert and appeared in the scene together and carried the victim to an isolated place where the victim was raped, then a case of “gang rape” is established in terms of Explanation-1 to Clause (g) of Section 376(2) of IPC irrespective of whether she had been raped by one or more of them. 10. Upon evaluation of evidence brought on record, I am satisfied to hold that the victim is a witness of truth. Her testimony inspires confidence. Other evidence including the medical evidence available on record lends absolute assurance to her testimony. The trial court has rightly held that the sexual assault amounts to “gang rape” was committed to her by the appellants. Here, delay in lodging the F.I.R. is on account of community people of appellants which is otherwise satisfactorily explained. In the facts and circumstances, when the probabilities factor does not render it unworthy of credence, there is no reason to discard the prosecution version. Here, I would reiterate that the evidence of the victim does not suffer from any basic infirmity and there is no reason to insist on corroboration of medical evidence. The medical evidence is also not supposed to come out at such a belated stage. 11. Here, I would reiterate that the evidence of the victim does not suffer from any basic infirmity and there is no reason to insist on corroboration of medical evidence. The medical evidence is also not supposed to come out at such a belated stage. 11. To sum up, the evidence of the victim when read as a whole in juxtaposed with the evidence of her father and the medical evidence, it inspires confidence of this Court. There is no missing link in the evidence, no embellishment and any circumstance to make it improbable that such an incident ever took place, more particularly when no self respective woman, particularly a spinster having no axe to grind against the appellants would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of gang rape on her. Tendency to conceal outrage of sexual aggression and the inherent bashfulness of the females carries with the victim. The plea of the appellants was the plea of despair needs no credence. Thus, the evidence adduced on behalf of the victim when accepted being reliable, the mere delay in lodging F.I.R. cannot be a ground for throwing the entire prosecution case overboard. Hence, I find no compelling reason to differ from the conviction of guilt recorded by the learned trial court as the victim’s version of her being subjected to gang rape by the appellants, could not be demolished by the appellants in spite of a reasonable and fair opportunity given to them in the trial to discredit such version. 12. Now coming to the question of sentence, the appellants were involved in a gang rape which is a serious in nature. There is also no mitigating circumstances to interfere with the sentence imposed by the trial court. The commission of heinous crime like “gang rape” does not call for any leniency. In view of the aforesaid, I am not inclined to modify the sentence imposed by the learned trial court. 13. Consequently, this criminal appeal fails and the same is accordingly dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of this Judgment.