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2018 DIGILAW 124 (ORI)

Piyus Kandulana v. State of Orissa

2018-01-29

D.P.CHOUDHURY

body2018
JUDGMENT : DR. D.P. CHOUDHURY, J. The appellant assails the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Sundargarh in S.T. Case No. 118/01 of 2014-15 for the offence under sections 457/376 (1) of I.P.C. 2. The factual matrix leading to the case of the prosecution is that on 22.4.2014 night while the victim was sleeping with her children in her house, the appellant entered into the house of the victim-informant. After entering into the house, the appellant forcibly made intercourse with the victim. When she objected, the appellant assaulted him. On the next morning when the husband of the victim came to the house, she narrated him the incident. Then F.I.R. was lodged by the victim before the police. During investigation the police sent the victim and the appellant for medical examination and seized the wearing apparel of the victim and appellant. The police sent the seized materials for chemical examination. During investigation the statement of the victim was recorded under section 164 Cr.P.C. After completion of investigation, the police submitted charge sheet under sections 457/323/376 of I.P.C. 3. The plea of the appellant as revealed from the statement recorded under section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses, is squarely denial to the occurrence and he has been falsely implicated in this case due to previous enmity with the husband of the victim and he pleads innocence. 4. The prosecution in order to prove the charge examined 14 witnesses. The defence examined none. 5. The learned trial court after analyzing the evidence on record convicted the appellant under sections 457/376 (1) of I.P.C. and sentenced him to undergo R.I. for five years and to pay a fine of Rs.5000/-in default to undergo R.I. for one year under section 457 of I.P.C. and also directed to undergo R.I. for ten years and to pay a fine of Rs.5000/-in default to undergo R.I. for two years under section 376(1) of I.P.C. and both the sentences were directed to run concurrently. At the same time the learned trial court has recorded order of acquittal for the offence under section 323 of I.P.C. SUBMISSIONS: 6. Learned counsel for the appellant submitted that the evidence of the victim should not be relied on solely as she is married and major woman and her statement has got conjectures and surmises. At the same time the learned trial court has recorded order of acquittal for the offence under section 323 of I.P.C. SUBMISSIONS: 6. Learned counsel for the appellant submitted that the evidence of the victim should not be relied on solely as she is married and major woman and her statement has got conjectures and surmises. He also submitted that the evidence of the child witness should equally be disbelieved as his evidence has been tutored by her mother who is inimical with the appellant and chance of false implication cannot be ruled out. The statements of other witnesses are discrepant with the statement of the victim. Learned counsel for the appellant submitted that the medical report is silent about any forcible sexual intercourse as there is no bodily injury on the person of the victim and she is a married major woman having two children. According to him, the chemical examination report as has been proved by the prosecution, but do not show any incriminating circumstances and thereby no chain of circumstance proved against the appellant. Learned trial court has erred in law by convicting and sentencing the appellant when there is no direct and circumstantial evidence proved against the appellant. 7. Learned Addl. Government Advocate submitted that the evidence of the victim is clear and consistent to prove the house trespass and rape committed by the appellant. Even if the victim is a major woman, but her private part has got injury and the doctor has opined that the sexual intercourse with the woman cannot be ruled out. According to him, the previous enmity is a both edged weapon and the same cannot be used as a shield to the offence of rape. So, he supported the judgment of the learned trial court and submitted to dismiss the appeal. DISCUSSION: 8. It is well settled in law that in a case of rape the statement of the victim should be given prime importance as she has sustained injury in body and mind. If her evidence is clear, cogent and consistent, the same can be utilized to base conviction. It is equally trite in law that in a case of married and major woman, injury on the private part should be assessed with little pinch of salt. It is also settled in law that Court should take grain from the chaff. If her evidence is clear, cogent and consistent, the same can be utilized to base conviction. It is equally trite in law that in a case of married and major woman, injury on the private part should be assessed with little pinch of salt. It is also settled in law that Court should take grain from the chaff. In this regard, Hon’ble Supreme Court, in the case of State of Punjab Vs. 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. 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. 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. 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...............". 9. Keeping in view the above principle as enunciated by a catena of decision, being the appellate court there is no bar to reassess the evidence to find out whether the conclusion arrived at by the trial court is legal and proper. 10. P.W.4 is the victim, who is aged about 30 years. She categorically stated that in the night when she was alone with her kids, the appellant broke open the door of the house, entered inside and made her to woke up from sleep and forcibly took her in his clutch and disrobed her. When one of the children shouted out of fear, the appellant dealt a slap on his face and the child went away. Then the appellant made her lie on the floor and forcibly raped her. When one of the children shouted out of fear, the appellant dealt a slap on his face and the child went away. Then the appellant made her lie on the floor and forcibly raped her. When she protested, he slapped her and with a lot of difficulty she wriggled out from his clutch and went straight to his house and called his son and daughter-in-law after narrating the incident to them. She further stated that the accused was in her house by the time they arrived. She further stated that they removed the appellant out of her house and took him to their house. It is further revealed from the examination-in-chief that on the next day when her husband returned, she narrated the occurrence to him and then went to the Police Station and lodged the F.I.R. She has been grilled in cross-examination. 11. In cross-examination at paragraph-4 P.W.4 stated that a latch is fixed on the backside of the door. She had kept the door open in the night of occurrence since she thought that her husband might be returned in the night. When she had kept the door open in the night of occurrence, it is not probable to find out that the appellant broke open the door and entered inside the house as stated in examination-in-chief. Again she stated that one of the chains of the door was damaged. When her husband is absent and she is alone, it is not known why the door was closed half-hazardly expecting arrival of her husband. In paragraph-5 she admitted that at the relevant time an electric bulb was glowing and again says that a lamp was also glowing. Thus, her statement is not clear which kind of light was actually inside her house. Again she stated in cross-examination at paragraph-5 that she could not say as to when the appellant barged into her room. If at all she has no knowledge as to when appellant barged into her room it cannot be said that she has seen lurking house trespass by the appellant. In paragraph-7 of the cross-examination she stated that she did not sustain any physical injury on her body as a result of forcible sexual intercourse. When the appellant pulled her saree she shouted for help, but nobody responded although house of Kishore Xaxa and Anjela Xaxa are close to her house. 12. In paragraph-7 of the cross-examination she stated that she did not sustain any physical injury on her body as a result of forcible sexual intercourse. When the appellant pulled her saree she shouted for help, but nobody responded although house of Kishore Xaxa and Anjela Xaxa are close to her house. 12. After all in cross-examination at paragraph-8 P.W.4 admitted that prior to the incident her husband was not pulling on well with the accused and she was also not pulling on well with his wife. Not only this, but also his wife intimidated them by raising threat to kill her and her husband. When there is a prior enmity between the parties and her statement is not clear to raise any resistance from the side of the victim except the verbal protest which is subject to corroboration by other neighbouring witnesses and she has categorically admitted not to have sustained any physical injury on her body and there are conjectures in her statement as to entrance of the appellant to her house, same requires corroboration and cannot be creditworthy solely to prove lurking house trespass and offence of rape. The statement recorded under section 164 Cr.P.C. of the victim does not disclose about forcible sexual intercourse. When she was examined before the Magistrate she has not stated about the forcible sexual intercourse committed by the appellant. 13. P.W.7 is the child witness, who is the son of the victim woman. On going through the deposition, it appears that the learned trial court after testing his veracity to find out whether he is competent to depose as required under section 119 of the Indian Evidence Act, he examined him. It is only available from his evidence that after hearing his mother screaming he woke up and saw the appellant sleeping with her mother and the appellant slapped him and his mother he ran away thereafter. It is not revealed from his evidence that he saw forcible sexual intercourse by the appellant with his mother. But he has seen the appellant assaulted her mother and his mother was assaulting the appellant. So, his evidence is not clear and cogent to lend corroboration to the evidence of P.W.4 about forcible sexual intercourse upon his mother. It is not revealed from his evidence that he saw forcible sexual intercourse by the appellant with his mother. But he has seen the appellant assaulted her mother and his mother was assaulting the appellant. So, his evidence is not clear and cogent to lend corroboration to the evidence of P.W.4 about forcible sexual intercourse upon his mother. Although his evidence shows that his elder brother was sleeping in the same room, prosecution has not explained through his evidence whether the elder brother had not got up after hearing screaming of his mother. It is also not clear from his evidence as to why he did not shout or screamed outside the house calling to the neighbourers. So, his evidence does not lend corroboration to the prosecution to prove the occurrence of sexual assault. 14. P.W.5 who is a close neighbour of the victim stated that she heard the shout of the victim and went there. On her query the victim replied that the appellant had come to her house and raped her. By the time she reached the house of the victim the appellant was seen by her going away from her house. This is another contradiction to the evidence of P.W.4 inasmuch as P.W.4 stated that nobody responded to her shout, but P.W.5 responded her shout and visited her house in the night. P.W.4 stated that the appellant remained in her house till removal by his family members, whereas P.W.5 stated that she had seen the appellant going away from the house of the victim by the time she arrived. Not only this, but also P.W.5 admitted in cross-examination that the victim was not pulling on well with the appellant since long. Thus, in cross-examination the previous enmity between the parties is well established. Apart from this, P.W.4 has not stated to have narrated the incident of rape to P.W.5. When the statement of P.W.5 does not corroborate the evidence of P.W.4, the evidence of P.W.5 about commission of rape being hear-say is inadmissible as per section 6 read with section 60 of the Evidence Act. So, the evidence of P.W.5 does not prove any circumstance beyond all shadow of doubt against the appellant. 15. Learned counsel for the State drew the attention of the Court to the evidence of the doctor (P.W.13) who had examined the victim. So, the evidence of P.W.5 does not prove any circumstance beyond all shadow of doubt against the appellant. 15. Learned counsel for the State drew the attention of the Court to the evidence of the doctor (P.W.13) who had examined the victim. On 23.4.2014 she stated to have examined the victim and found the following facts:- “(i) No bodily injury on the person of the victim. (ii) Dried semenal stains like material found on the peticoat of the victim. (iii) No recent sign of recent sexual intercourse found. (iv) Hymen was not intact and completely destroyed with presence of small granular tags of tissues. (v) The vagina admitted two fingers easily. (vi) The blood group of victim as A+. (vii) The victim was aged about 26 yes being the mother of two children. 16. She further stated in examination-in-chief that there is no sign of recent sexual intercourse, but sexual intercourse in the past could not be ruled out. The doctor’s report clearly shows that there is no bodily injury on the person of the victim and also she could not find out any sign of recent sexual intercourse with the victim. The injury with regard to the private part must be due to injury on recent past which is probable because of her married life with her husband who was only absent on the occurrence night as available from the case of the prosecution. However, such injury on the private part cannot be related to the occurrence in last night as the doctor did not find any sign and symptom of recent sexual intercourse. The crucial aspect of the report is that there is no bodily injury on the person of the victim who is a major woman having two children. The absence of external injury intensifies doubt about forcible intercourse against consent of the victim. Be that as it may, the report of the doctor does not corroborate the victim about forcible sexual intercourse by the appellant with her. 17. The statement of P.W.1 shows that on the verbatim of P.W.4 he had prepared the F.I.R. vide Ext.1, but has no personal knowledge about it. When the F.I.R. is not encyclopedia and it is not a substantive piece of evidence, same cannot be treated as circumstance against the appellant. 18. The evidence of P.Ws. 17. The statement of P.W.1 shows that on the verbatim of P.W.4 he had prepared the F.I.R. vide Ext.1, but has no personal knowledge about it. When the F.I.R. is not encyclopedia and it is not a substantive piece of evidence, same cannot be treated as circumstance against the appellant. 18. The evidence of P.Ws. 2, 3, 6, 8, 9 and 14 show that the police seized the wearing apparel of the victim and the appellant, pubic hair, vaginal swab of the victim and same were sent for chemical examination. But the prosecution has not proved the report of the Chemical Examiner. The evidence of the doctor (P.W.13) only shows that she has found a dried semenal stains like material on the peti coat of the victim, but the same was not proved by P.W.13 as semenal stain of appellant although it was seen like. Thus, prosecution has not proved the said peti coat to have contained semenal stain of the appellant. On the whole, no substantial circumstantial evidence is proved against the appellant. 19. In terms of the above discussions, it appears that the prosecution has neither proved direct nor circumstantial evidence against the appellant to prove his complicity with commission of evidence beyond all shadow of doubts. There is previous enmity between the parties for which the appellant is entitled to benefit of such doubt. The learned trial court has not scanned the evidence of the witnesses properly, for which landed in wrong conclusion. So, the conclusion arrived at by the learned trial court is not agreed with. On the other hand, the prosecution has failed to prove the offence under sections 457/376 of I.P.C. against the appellant and he is not found guilty thereunder. He is acquitted of the said charges. In the result, the Jail Criminal Appeal is allowed and the appellant be set at liberty forthwith if not detained in any other case. The L.C.R. be returned forthwith.