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2018 DIGILAW 408 (ORI)

Kartika Munda v. State of Orissa

2018-04-12

S.K.SAHOO

body2018
JUDGMENT S.K. SAHOO, J. - The appellants Kartika Munda and Menja Munda faced trial in the Court of learned Sessions Judge, Keonjhar in Sessions Trial Case No. 153 of 2007 for offences punishable under Section 376(2)(g) and 307 of the Indian Penal Code. The learned trial Court found the appellants guilty of the offences charged and sentenced each of them to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for one year for the offence under Section 376(2)(g) of the Indian Penal Code and to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 5,000/- (rupees five thousand), in default, to undergo R.I. for 1 (one) year for the offence under Section 307 of the Indian Penal Code and both the sentences were directed to run concurrently. 2. The prosecution case, as per the first information report lodged by the victim (P.W.5) on 05.03.2007 before the Inspector in charge of Town Police station, Keonjhar is that on 04.03.2007 in the evening hours while the victim was returning home from the weekly market, one person who was residing in the house of one Makuru Munda (his name was unknown to the victim) and his associate lifted her to an isolated place and committed rape on her and also inserted one Amari stick inside the vagina of the victim. It is further stated in the first information report that one Janaki Munda is an eye witness to the occurrence. The victim was the mother of three children and after the death of her husband, she was staying with her mother. After the incident, the victim was treated at Keonjhar hospital. 3. Mr. Ambika Prasad Das, S.I. of Police, Town police station, Keonjhar on receipt of the written report from the victim, in absence of the Inspector in charge, registered Keonjhar Town P.S. Case No. 36 of 2007 on 05.03.2007 under Section 376(2)(g)/307 of the Indian Penal Code against unknown persons and directed P.W. 6 Dibyakanti Lakra, S.I. of Police to take up investigation of the case. During course of investigation, P.W. 6 examined witnesses, visited the spot, arrested the appellant no. 1 Kartika Munda and seized one Amari stick (M.O.I.) on 07.03.2007 as per seizure list Ext. 2. The wearing apparels of appellant no. 1 were seized under seizure list Ext. During course of investigation, P.W. 6 examined witnesses, visited the spot, arrested the appellant no. 1 Kartika Munda and seized one Amari stick (M.O.I.) on 07.03.2007 as per seizure list Ext. 2. The wearing apparels of appellant no. 1 were seized under seizure list Ext. 5 and he was sent to District Headquarters Hospital, Keonjhar for his medical examination. Subsequently the appellant no. 2 Menja Munda was also arrested and he was also sent for medical examination. The Investigating Officer seized the wearing apparels of the victim on 16.03.2007 as per seizure list Ext. 8 and forwarded the material objects to S.F.S.L., Bhubaneswar for chemical examination through Court. after completion of investigation, P.W. 6 submitted charge sheet on 27.06.2007 under Sections 376(2)(g)/307 of the Indian Penal Code. 4. In order to prove its case, the prosecution examined eight witnesses. P.W. 1 Dr. Chandrabhanu Sethy was the O & G Specialist in the District Headuqrters Hospital, Keonjhar and he examined the victim and noticed one injury on her vagina and proved the medical examination report Ext. 1. P.W. 2 Sukrumani Munda stated that on the date of occurrence at about 4 p.m. near the jail wall, she found the victim was sleeping and the appellant no. 1 Kartika Munda was standing near her and she intimated the fact to the mother of the victim. P.W. Kalicharan Maharana stated about the seizure of one Amari stick as per seizure list Ext. 2. P.W. 4 Mita Behera has not stated anything about the prosecution case. P.W. 5 is the victim and she is also informant in the case. She stated about the commission of rape on her by the two appellants. P.W. 6 Dibyakanti Lakra was attached to Town police station, Keonjhar and he is the Investigation Officer. P.W. 7 Dr. Prafulla Chandra Das was the Asst. Surgeon attached to the District Headquarter Hospital, Keonjhar and he examined appellant no. 1 Kartiak Munda on 07.03.2007 and proved his examination report (Ext. 12). P.W. 8 Dr. Pradip Kuamr Nayak was the Asst. Surgeon attached to the District Headquarters Hospital, Keonjhar and he examined appellant no. 2 Menja Munda on 08.03.2007 and proved his examination report (Ext. 13). The prosecution exhibited as many as thirteen documents. Exts. 1, 12 and 13 are the medical reports of the victim, appellant no. 1 and appellant no. 2 respectively, Exts. Pradip Kuamr Nayak was the Asst. Surgeon attached to the District Headquarters Hospital, Keonjhar and he examined appellant no. 2 Menja Munda on 08.03.2007 and proved his examination report (Ext. 13). The prosecution exhibited as many as thirteen documents. Exts. 1, 12 and 13 are the medical reports of the victim, appellant no. 1 and appellant no. 2 respectively, Exts. 2, 5, 6, 7 and 8 are the seizure lists, Ext.3 is the F.I.R., Ext. 4 is the spot map, Ext. 9 is the copy of forwarding letter of M.Os., Ext. 10 is the chemical examination report and Ext. 11 is the serology examination report. The prosecution also proved four material objects. M.O.I. is the Amari stick, M.O. II is the saree, M.O. III is the saya and M.O. IV is the full pant. 5. The defence plea of the appellants was one of the denial. 6. The learned trial Court after assessing the evidence on record has been pleased to hold that there is no reason to disbelieve the evidence of the doctor relating to the injury sustained in the private part of the victim and there is no reason as to why the victim would depose falsely against the appellants. The learned trial Court further held that from the facts and circumstances of the case, one can conclude that the two appellants attempted to murder the victim by inserting M.O.I, the ‘Amari’ stick into her private part after committing gang rape on her. The learned trial Court further held that the existence of extensive human blood in the garments of victim another strong item of evidence of prosecution to establish the guilt of the appellants. Learned trial Court further held that from the totality of oral and documentary evidence adduced on behalf of the prosecution, a conclusion is available that prosecution has proved its case beyond reasonable doubt against the appellants. 7. Mr. Gokulananda Sahu, Advocate was engaged as amicus curiae on behalf of the appellants. He was supplied with the paper book of the case and given time to prepare the case. He placed the judgment and evidence on record and contended that the first information report was lodged by the victim against unknown persons and after the arrest of the appellants, no test identification parade has been conducted to establish the identity of the culprits. He placed the judgment and evidence on record and contended that the first information report was lodged by the victim against unknown persons and after the arrest of the appellants, no test identification parade has been conducted to establish the identity of the culprits. The occurrence in question stated to have taken place on 04.03.2007 in the evening hours and the victim for the first time in Court on 01.01.2009 during trial stated that she knew the appellants and named them and therefore, her evidence should not have been accepted by the learned trial Court. It is further contended that in the first information report, it is mentioned that one Janaki is an eye witness to the occurrence but she has not been examined during trial. It is further contended that P.W. 2 stated to have found the victim sleeping near the jail wall and the appellant no. 1 standing near her on the date of occurrence and this statement creates doubt about the participation of the appellants in the alleged crime and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. Mr. Chita Ranjan Swain, learned Addl. Standing Counsel on the other hand supported the impugned judgment and contended that even though the F.I.R. was lodged by the victim against unknown persons but she has named the appellants in her evidence and attributed specific overt act against each of them and the medical evidence corroborates the version of the victim and therefore, there is no illegality or infirmity in the impugned judgment. 8. The victim is the informant in the case. In the first information report (Ext. 3) which was lodged on the next day of occurrence, she has mentioned that one person who was staying in the house of one Makru Munda with whose name she was not aware and his associate lifted her forcibly to an isolated place and committed rape on her and they also inserted on ‘Amari’ stick in her vagina. She further mentioned that the occurrence was witnesses by one Janaki Munda. If the appellants were unknown to the victim, it was very much necessary on the part of the investigating agency to take step for conducting test identification parade to establish the complicity of the appellants in the crime. She further mentioned that the occurrence was witnesses by one Janaki Munda. If the appellants were unknown to the victim, it was very much necessary on the part of the investigating agency to take step for conducting test identification parade to establish the complicity of the appellants in the crime. The appellants were arrested immediately after the occurrence and therefore, there was no difficulty on the part of the investigating agency in making a prayer before the learned Magistrate to conduct the test identification parade. No. explanation is forthcoming as to why the test identification parade was not conducted. Most peculiarly the victim was examined during trial on 02.01.2009 which is almost about two years after the occurrence and she implicated the appellants by their names and further stated that she know them. If the victim was aware about the names of the appellants, she could have mentioned their names in the first information report but the first information report indicates that rape was committed on the victim by two persons with whose names, the victim was not acquainted. She stated that the appellant no. 2 Menja Munda committed rape on her first and then it was appellant no. 1 Kartika Munda who committed rape on her and then appellant no. 2 Menja Munda brought one ‘Amari’ stick and forcibly inserted into her vagina. The victim stated in her cross-examination that the F.I.R. after being written as per her instruction was read over and explained to her and she put her L.T.I. on it. Her evidence is silent as to who was the scribe of the first information report. The scribe has also not been examined in the case. It has been confronted to the victim in her cross-examination that she has not mentioned in the F.I.R. that the appellant no. 2 first committed rape on her and then appellant No. 1 committed rape on her and then appellant no. 2 inserted the Amari stick inside her vagina. In fact in the first information report, the victim has not mentioned about all such aspect. The Amari stick which was seized in connection with the case and sent for chemical examination was found not to be containing any blood or semen. The victim has stated that on the date of occurrence at about 10.00 a.m. to 11.00 a.m., she had taken Handia i.e. liquor made of rice. The Amari stick which was seized in connection with the case and sent for chemical examination was found not to be containing any blood or semen. The victim has stated that on the date of occurrence at about 10.00 a.m. to 11.00 a.m., she had taken Handia i.e. liquor made of rice. The doctor (P.W.1) who examined her on the date of occurrence stated that the victim was admitted in the hospital at 9.30 p.m. on 04.03.2007 (which was prior to lodging of the first information report) and at that time she was drunk and in a semi-conscious state and irritable. Even though the doctor has noticed one injury on her vagina but since the victim has not named any of the appellants in the first information report and it has not been brought on record as to how the involvement of the appellants came to light for which they were taken into custody in connection with the case, the prosecution case becomes doubtful. When the eye witness named in the first information report has not been examined nor the house owner where one of the accused who committed rape on the victim was residing as per the story narrated in the first information report, has been examined by the prosecution and the test identification parade has not been conducted in order to establish the complicity of the appellants in the crime, it is very difficult to accept the evidence of the victim implicating the appellants for the first time in her evidence which was given almost two years after the occurrence. The appellant no. 1 was medically examined on 07.03.2007 and appellant no. 2 was examined on 08.03.2007.The doctors P.W. 7 and P.W. 8 have stated that the appellants were capable of committing sexual intercourse but from their clothing, no clue of sexual intercourse was found and no injury on their person suggestive of forcible sexual intercourse was also found. P.W. 2 has stated she found the victim was sleeping near the jail wall and the appellant no. 1 Kartika Munda was standing near her. She has marked any untoward incident which would rise accusing finger at the appellant no. 1 and even she has not stated about the presence of appellant no. 2 at the spot. 9. P.W. 2 has stated she found the victim was sleeping near the jail wall and the appellant no. 1 Kartika Munda was standing near her. She has marked any untoward incident which would rise accusing finger at the appellant no. 1 and even she has not stated about the presence of appellant no. 2 at the spot. 9. In view of the available materials on record, when the first information report was lodged against unknown persons and the material witnesses of the prosecution have been withheld and it is not forthcoming as to how the names of the appellants cropped up during course of investigation to be the culprits and the test identification parade has not been conducted in the case in order to establish the complicity of the appellants in the crime and the victim for the first time named the appellants about two years after the incident and her condition when she was examined by the doctor on the date of occurrence, it is difficult to hold that the prosecution has successfully established its case beyond all reasonable doubt against the appellants and therefore, I am inclined to give benefit of doubt to the appellants. Accordingly, the jail criminal appeal is allowed. The impugned judgment and order of conviction of the appellants under Sections 376(2)(g)/307 of the Indian Penal Code and sentences passed there under is set aside. The appellants are acquitted of all the charge. They should be released forthwith from judicial custody if their detention is not required in any other case. Lower Court records with a copy of the judgment be sent down to the learned trial Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to Mr. Gokulananda Sahu, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs. 5,000/- (rupees five thousand only). Appeal allowed.