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2019 DIGILAW 166 (ORI)

Authesh Kumar Keut @ Kunda v. State of Orissa

2019-03-01

D.DASH

body2019
JUDGMENT : D. Dash, J. The appellants being aggrieved by the judgment of conviction and order of sentence passed on 22.01.2002 by the Addl. Sessions Judge, Jharsuguda in S.T. Case No. 48/6 of 2001 have filed these appeals (appeals under item nos. I and II have been filed from inside the jail). 2. The appellants as the accused persons faced the trial for commission of offence under sections 376(g) and 506 IPC. In the trial each of them has been convicted for those offences and have been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,500/- in default to undergo rigorous imprisonment for three months for the offence under section 376(g) IPC. They have been further sentenced to undergo rigorous imprisonment for a period of three years for the offence under section 506 (ii) IPC with the stipulation that the substantive sentences are to run concurrently. 3. Prosecution case in short is that on 15.09.2000 around 10.30 P.M. the victim P.W. 7 was proceeding to the house of her elder father to witness a picture in the television. It is stated that on her way near Laxmi temple, finding her alone, the accused persons obstructed her and pressing her mouth; lifted her to the side of the temple. It is further alleged that the accused persons thereafter undressed her, made on lie her ground by applying force and then unrobing her committed sexual intercourse, one after another. It is the further case of the prosecution that the accused persons after fulfilling their sexual lust and desire left the victim near her house by extending threat that she would be killed in case of disclosure of the incident before any other. The victim on the day following the occurrence night disclosed the incident first to her mother who then decided to report the matter at Mahila Samiti of the village. A meeting though had been convened by the members of the Mahila Samiti, the accused persons despite call did not attend which finally led to the lodging of the FIR under Ext. 1 at Brajrajnagar Police Station. Pursuant to the said FIR, police having registered the case, took up investigation. In course of investigation, the statement of the victim P.W. 7 was recorded and she was medically examined. Her wearing apparels were seized and sent for chemical examination. 1 at Brajrajnagar Police Station. Pursuant to the said FIR, police having registered the case, took up investigation. In course of investigation, the statement of the victim P.W. 7 was recorded and she was medically examined. Her wearing apparels were seized and sent for chemical examination. The accused persons being apprehended and medically examined, were forwarded in custody to the court. On completion of investigation, the charge sheet having been submitted, the case committed to the court of Sessions where the accused persons faced the trial being charged for offence under sections 376(g) and 506 (ii) IPC. The accused persons took the plea of denial and false implication. 4. The trial court analyzing the evidence of nine prosecution witnesses as also on going through the documents admitted in evidence more importantly, the FIR and medical report, has recorded the finding of guilt against all the accused persons for the offence for which they stood charged and accordingly they have been sentenced as aforestated. Hence these appeals being heard together is being disposed by this common judgment. 5. I have heard Miss Reena Nayak, learned counsel (JCRA 41 of 2002), Mr. B.P. Satapathy, learned counsel (JCRA No.42 of 2002) and Mr. B.K. Pattnaik, learned counsel (CRA No. 54 of 2002) on behalf of the appellants (accused persons-convicted). I have also heard Mr. K.K. Nayak, learned Addl. Standing Counsel. 6. Learned counsel for the appellants (accused persons-convict) assailing the finding of the trial court as to the establishment of the case of the prosecution for the commission of rape upon the victim by the accused persons and the criminal intimidation submit that the evidence on record have not been properly appreciated so as to arrive at a conclusion with regard to the role of these accused persons. According to them, the trial court ought not to have placed reliance upon the evidence of P.W. 7 who happens to be the victim of the case in the absence of any such corroboration on material particulars more particularly from the medical evidence, providing such support to the allegations. They further submit that the evidence on record especially the evidence of P.W. 7, the victim with regard to the incident right from the time of her lifting till being left near her house is not believable. They further submit that the evidence on record especially the evidence of P.W. 7, the victim with regard to the incident right from the time of her lifting till being left near her house is not believable. According to them, even though it was during night, when the victim has said that she was going to witness the picture in the television in the house of her elder father which obviously shows that all the villagers by then were not fast asleep, as it is not stated that anyone has seen the incident which has stretched over quite some time or any of its part, the incident as projected is highly improbable. It is therefore submitted that the trial court ought not to have held the accused persons guilty on the basis of the sole testimony of P.W. 7 which does not receive any corroboration. According to them, although such contentions had been raised before the trial court, those have not been properly taken into consideration in the touchstone of the facts and circumstances of the case as those emanate from the evidence piloted by the prosecution. In that view of the matter, they urge that the judgment of the conviction is unsustainable and consequently, the order of sentence is liable to be set aside. 7. Learned Addl. Standing Counsel referring to the evidence of P.W. 7 submits that she has in a very natural manner stated about the entire incident when no such material surfaces that she had any axe to grind against the accused persons to go to state against the accused persons falsely arraigning them in an incident, at the cost of chastity inviting stigma for whole of her life putting her future at stake. He further submits that the position of law being well settled that in every case corroboration to the testimony of rape, victim is not necessary, present is not a case for seeking corroboration so as to fasten the guilt upon the accused persons as there appears no such circumstances so as to raise suspicion for even a moment on the version of P.W. 7 or on any part. It is further submitted that absence of any such injury on the person of P.W. 7, in the facts and circumstances as those emanate from the evidence on record stands well explained and therefore the trial court did commit no mistake in placing implicit reliance on the evidence of P.W. 7 so as to hold the complicity of these accused persons in commission of the above offences. 8. The star witness for the prosecution is P.W. 7. She being aged about eighteen years has been examined before the trial court on 20.08.2001. It has been stated that during the relevant night when she was going to her elder father's house to watch a picture in television, on the village road, the accused persons suddenly appeared and lifted her by gagging and having so taken her to the side of Laxmi temple which situates nearby, they made her lie on the ground on her back and then having undressed her fulfilled their sexual lust and desire. It has been categorically stated by her that the accused persons removed her inner garment and then first it is accused Kanda who squeezed her breasts and pushed his penis into her vagina in having the sexual intercourse. The victim has stated to have struggled to escape but failed in view of the threat of life given by the accused persons. She has further stated that in the said situation in presence of three accused persons, she had to lie in a helpless condition being even unable to shout as her month was closed. It is next stated that after accused Kanda finished his part enjoyment, turn of the accused Kanhu came and thereafter at the end accused Chudamni retravelled the same path by then already travelled by those other two. It is her further evidence that being threatened, she had to put on her garment and then being taken to their sahi was left by the accused persons there giving threat that if she would disclose the incident before others, she would be killed. It is her further evidence that being threatened, she had to put on her garment and then being taken to their sahi was left by the accused persons there giving threat that if she would disclose the incident before others, she would be killed. It is her evidence that at that dead hour of night going to the house instead of showing her reaction in any manner she went for sleep and on the next morning finding her mother, she reported the matter who in turn told the members of Mahila Samiti which did not yield any such fruit where after she had orally reported the incident to the police which has been reduced into writing taken as FIR, admitted in evidence as Ext. 1. This P.W. 7 has been cross-examined at length. During cross-examination, she has further repeated what she had stated in her evidence-in-chief that she was made to lie on the ground and ravished by the accused persons one after another. After removal of her wearing apparels at the beginning near that place, she has stated to have sustained no injury on any part of her body and finding helpless, in the situation still to have also tried for some time to escape. She has also stated about the time of return to her house during the midnight hour. Although, it has been stated by her that she was ravished over a stony surface, she had no such injury on her person. Her evidence is that all the accused persons were together at the place although. There appears no such suspicious circumstances in the evidence of P.W.7. This being the evidence of the victim, her brother has been examined as P.W. 1 who has stated to have learnt about the incident from his mother. He has supported the evidence of P.W. 7 that they had been to the police station where P.W. 7 reported the matter orally before the police and then was sent for medical examination. Evidence of P.W. 2, the co-villager is to the effect that the mother of the victim had stated about the fact that her daughter P.W. 7 had been raped by the accused persons standing together and by one after the other as told by her daughter, P.W.7. Evidence of P.W. 2, the co-villager is to the effect that the mother of the victim had stated about the fact that her daughter P.W. 7 had been raped by the accused persons standing together and by one after the other as told by her daughter, P.W.7. It has been stated by P.W. 3, the local people representative that the meeting could not be held because of the absence of the accused persons. P.W. 4, another member of the Mahila Samiti of the village has also deposed as regards the reporting of the matter to the President of the Mahila Samiti. The mother of the victim P.W. 8 has corroborated the evidence of P.W. 7 to the extent that she had narrated the incident as to the role of the accused persons in ravishing her on the previous night and then she has also stated that P.W.7 had gone to P.S. and informed. It is also her evidence that she had told another villager who in turn had told to the Ward member and the members of the Mahila Samiti. Going through the evidence of these prosecution witnesses, it is seen that nothing substantial has been brought out thereby to show that the members of the family of P.W. 7 had any animosity with the accused persons so as to create the situation like the one in falsely implicating the accused persons. 9. The position of law is well settled that the evidence of rape victim if found to be reliable and trust worthy, the same can form the foundation of guilt against the persons ravishing her even without corroboration, either from the oral testimony of other witnesses or from the evidence of expert. Where, however in a given case there appears some such future to raise any finger so as to entertain a doubt in the mind on the reliability of the evidence of the victim, the court would look for some corroboration from other sources. It is also the settled position of law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration from material particulars. She stands at a higher pedestal than an injured witness. It is also the settled position of law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration from material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical, psychological and emotional. However, if the Court of fact finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffix. To put it in the exact words as expressed by Hon'ble Apex Court in case of State of Assam vs. Ramen Dowarah, (2016) AIR SC 341 and State of Punjab vs. Gurmit Singh & others, (1996) 2 SCC 384 :- "The Courts must, while evaluating evidence, remain alive to the fact that in 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 invalid 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 of 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" 10. On a careful reading of the evidence of the P.W. 7 coupled with the evidence of other witnesses as to the actual state of affair in the happening of the incident, this Court finds the evidence of P.W. 7 to be reliable and trust worthy. On a careful reading of the evidence of the P.W. 7 coupled with the evidence of other witnesses as to the actual state of affair in the happening of the incident, this Court finds the evidence of P.W. 7 to be reliable and trust worthy. Moreover, in a case of allegation with regard to gang rape, presumption arises that it was without consent of the victim and merely because no such injury is seen on the person of the victim, even in case of successive sexual intercourse by different person its not permissible to accept it for a moment that the victim had freely and voluntarily consented to and it was thus a case of consensual sex and then it is for those persons against whom such allegations are labeled to rebut either by leading evidence or showing such surrounding circumstance emerging from evidence on record. In view of all the aforesaid, as per the independent analysis of evidence on record, this Court finds no such reason and justification to accord its disagreement with the finding of guilt recorded by the trial court against the accused persons. In the wake of above, the challenge made by the accused persons to the judgment of conviction fails and consequently, the order of sentence awarding the minimum substantive sentence as provided for the principal offence with the fine, and for the other offence with all the stipulations is found to be just and proper. 11. Resultantly, all the appeals stand dismissed.