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Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No.324 of 2008 From judgment and order dated 23.11.2006 passed by the Adhoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.5/192 of 2006-05. ---------------------------- 1. Raya Munda 2. Bijay Munda 3. Raya Munda ....... Appellants -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Asish Mishra Advocate For Respondent: - Mr. Rajesh Tripathy Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 08.11.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The three appellants, namely, Raya Munda, son of Mangal Munda (hereafter, >appellant no.1?), Bijay Munda, (hereafter, >appellant no.2?) and Raya Munda, son of Jamadar Munda (hereafter, >appellant no.3?) faced trial in the Court of // 2 // learned Adhoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.5/192 of 2006-05 for the commission of offence under section 376(2)(g) of the Indian Penal Code (hereinafter >I.P.C.?) on the accusation that they committed gang rape on the victim on 20.12.2004 at about 7.00 p.m.
Legal Reasoning
The learned trial Court vide impugned judgment and order dated 23.11.2006 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- (rupees five thousand) each, in default, to undergo rigorous imprisonment for a further period of one year. Prosecution Case: 2. The prosecution case as per the first information report (Ext.3) lodged by one Gura Munda (P.W.3), the uncle of the victim is that the victim was fourteen years of age at the time of occurrence and she was working as a labourer in the mines and on 20.12.2004 in the evening hours at about 7 O? Clock, she was returning to her house after taking handia from the godown of one Mangal Munda. In that godown, the appellants were present and they were also consuming handia. The appellant no.1 gave some handia to the victim and after consuming the same, while the victim was returning home, all the three appellants followed her and on the way near Page 2 of 15 // 3 // Bagabandha, the appellants dragged the victim towards bushes and when the victim tried to shout, the appellant no.3 gagged her mouth by putting his hands and made her lie on the ground and after lifting her saree and saya, the appellant no.1 first committed rape on her and then appellant no.2 and at the end, appellant no.3 committed rape on her. The victim was left at the spot and the appellants fled away. After returning home, the victim narrated the incident before her mother (P.W.6) and both the victim and her mother came to the informant (P.W.3) and stated about the occurrence. P.W.3, on the next day of occurrence, intimated the same to chowkidar, who took the victim, her mother and the informant to the police station where the first information report was lodged. P.W.8 Suresh Chandra Patra, the Officer in-charge of Joda police station reduced the oral report of P.W.3 into writing and registered Joda P.S. Case No.232 dated 22.12.2004 under section 376(2)(g) of the I.P.C. against the appellants and took up investigation of the case and during course of investigation, he examined the informant and other witnesses, sent the victim to the Government Hospital, Barbil for medical examination. He also visited the spot and prepared the spot map (Ext.5), arrested the appellants and sent them for medical examination. The I.O. received the medical examination report of the victim and he Page 3 of 15 // 4 // seized the vaginal swab and other exhibits of the victim after her medical examination on being produced by the constable. The wearing apparels of the appellants were seized. The victim was also sent to District Headquarters Hospital, Keonjhar. The pathological samples of the victim and the appellants along with their wearing apparels were sent to S.F.S.L., Rasulgarh through Court for chemical examination. The ossification test report of the victim (Ext.2) was obtained from the hospital so also the chemical examination report (Ext.14) and on completion of investigation, charge sheet was submitted against the appellants under section 376(2)(g) of the I.P.C. Framing of Charges: 3. After submission of charge sheet, the learned trial Court framed charges against the appellants and since the appellants refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. Prosecution Witnesses, Documents Exhibited & Material Objects Proved By Prosecution: 4. During the course of trial, in order to prove its case, the prosecution examined nine witnesses. Page 4 of 15 // 5 // P.W.1 Dr. Sukanti Kumari Jena was the Specialist in Radiology attached to the District Headquarters Hospital, Keonjhar, who examined the victim on police requisition and proved her report marked as Ext.1. P.W.2 Dr. Soudamini Dhal was the O. & G. Specialist attached to P.P. Centre, Barbil, who examined the victim on police requisition and proved her report marked as Ext.2. P.W.3 Gura Munda is the uncle of the victim, who is the informant in the case and he stated about the disclosure made by the victim and her mother about the overtact committed by the appellants on the victim. P.W.4 Durga Charan Munda is a co-villager and also a witness to the seizure of wearing apparels of the victim as per seizure list Ext.4. P.W.5 is the victim and she supported the prosecution case. She further stated that she disclosed about the occurrence before her mother (P.W.6) and uncle (P.W.3). P.W.6 Sukurumani Munda is the mother of the victim and she stated about the disclosure made by the victim about the overtact committed by the appellants on her. P.W.7 Mangal Babanga did not support the prosecution case for which he was declared hostile by the prosecution. Page 5 of 15 // 6 // P.W.8 Suresh Chandra Patra was the Officer in- charge of Joda police station and he is the Investigating Officer in the case. P.W.9 Dr. Jagdish Prasad Sahoo, who was working as Medical Officer, C.H.C., Joda, examined the appellants and proved his reports marked as Ext.7, Ext.8 and Ext.9. The prosecution exhibited fourteen documents. Ext.1 is the ossification test report, Ext.2 is the medical examination report of the victim, Ext.3 is the F.I.R., Ext.4, Ext.6, Ext.10, Ext.11, Ext.12 and Ext.13 are the seizure lists, Ext.5 is the spot map, Ext.7 is the requisition for examination of appellant no.2, Ext.7/1 is the medical examination report of appellant no.2, Ext.8 is the requisition for examination of appellant no.1, Ext.8/1 is the medical examination report of appellant no.1, Ext.9 is the requisition for examination of appellant no.3, Ext.9/1 is the medical examination report of appellant no.3 and Ext.14 is the Chemical Examination Report. The prosecution also proved nine material objects. M.O.I is the khaki colour saya, M.O.II is the blue colour saree, M.O.III is the blue colour blouse, M.O.IV is the green full pant, M.O.V is the sky colour half chadi, M.O.VI is the blue colour full pant, M.O.VII is the gray colour chadi, M.O.VIII is the ash colour full pant and M.O.IX is the yellow colour chadi. Page 6 of 15 // 7 // Defence Plea: 5. The defence plea of the appellants is one of denial. The defence has neither examined any witness nor proved any documentary evidence. Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as the documentary evidence on record, came to hold that the victim?s evidence regarding commission of rape on her has not been shaken and it is getting corroboration from the evidence of her mother (P.W.6) and her uncle (P.W.3), before whom she disclosed about the occurrence. The Court further held that the medical examination report also corroborates the version of the victim. The Court further held that the delay in lodging the F.I.R. is not at all fatal to the prosecution case in view of the nature of accusation and therefore, it accepted the prosecution case and held that the unimpeachable statement of the victim is sufficient to establish the ingredients of the offence under section 376(2)(g) of the I.P.C. against the appellants and accordingly, convicted them under the offence charged. Contentions of the Parties: 7.
Legal Reasoning
Mr. Asish Mishra, learned counsel appearing for the appellants contended that even though the victim has stated in Page 7 of 15 // 8 // her evidence that the place of occurrence was on an uneven place having morums and stone pieces and also stated that as many as three persons committed rape on her and the victim was examined medically a day after the occurrence, the evidence of the doctor (P.W.2) indicates that there was no bodily injury detected on the person of the victim suggestive of forcible sexual intercourse and hymenal tears were beyond seven days and therefore, the medical evidence falsifies the case of the prosecution that the victim was subjected to gang rape. Learned counsel further argued that the victim stated to be wearing saree, saya and blouse at the time of occurrence which were seized during the course of investigation and it was sent to S.F.S.L., Rasulgarh for examination, but the chemical examination report indicates that there was no blood or semen found on the wearing apparels of the victim which is another factor to suggest that evidence of the victim is not reliable and trustworthy. Learned counsel further argued that the evidence is discrepant as to when the F.I.R. was lodged and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. Mr. Rajesh Tripathy, learned Additional Standing Counsel, on the other hand, supported the impugned judgment Page 8 of 15 // 9 // and submitted that the victim and the appellants were known to each other and the victim has specifically stated that even though there was darkness at the place of occurrence, she could identify the appellants, who committed rape on her. It is further argued that the medical evidence indicates that no bodily injury was noticed on the person of the victim suggestive of forcible sexual intercourse but since the victim?s movement was restrained by the appellants and her evidence inspires confidence and nothing has been elicited in her cross-examination to disbelieve her evidence, the medical evidence adduced by the doctor (P.W.2) cannot be a ground to discard the prosecution case. Learned counsel further argued that the victim disclosed the occurrence before her mother (P.W.6) immediately and thereafter, both of them went to P.W.3, who is none else than the maternal uncle of the victim and there also the victim disclosed about the occurrence which is admissible as res gestae under section 6 of the Evidence Act and accordingly, the F.I.R. was lodged. The occurrence in question stated to have taken place on 20.12.2004 in the evening hours and the F.I.R. was lodged on 22.12.2004 and therefore, it cannot be said that there was such inordinate delay in lodging the first information report so as to disbelieve the prosecution case, particularly when it is the settled principle of law that in such type of cases, normally Page 9 of 15 // 10 // the family members take time to decide as to whether to lodge F.I.R. or not as the prestige of the family and the future of the victim are at stake and therefore, the learned trial Court is quite justified in convicting the appellants of the offence charged and as such, the appeal should be dismissed. Analysis of evidence: 8. Adverting to the contentions raised by the learned counsel for the respective parties and coming to the evidence of the star witness on behalf of the prosecution, who is none else than the victim examined as P.W.5, it appears that she has stated that the appellants on the date of occurrence committed forcible rape on her against her will. She stated that she had worn saree and blouse at the time of occurrence and after commission of rape, the appellants went away from the spot leaving her there and then she came to her house and disclosed about the occurrence before her mother (P.W.6) and maternal uncle (P.W.3). The victim stated in her cross-examination that at the time of deposition, she was aged about eighteen to nineteen years. Her evidence was recorded on 13.07.2006 and the occurrence in question took place on 20.12.2004. The victim further stated that at the time of occurrence, she had not consumed any handia (country-made liquor) and prior to the occurrence, she had known the names of the appellants. Though Page 10 of 15 // 11 // the victim stated, in her cross-examination, that at the instance of her uncle (P.W.3), who had enmity with the appellants, she is deposing in Court and further stated that she had come to the Court with P.W.3 who had told her on that day to depose that the appellant no.1 had pressed his hand on her mouth during the alleged occurrence, it cannot be said that nothing had happened to her and she was tutored by P.W.3 to depose falsehood against the appellants and that too bringing accusation of rape. The victim further stated that the occurrence took place in the dark night and there was no visibility from one face to another due to darkness; however, she stated that in spite of darkness, she was able to identify the appellants who committed rape on her. Since the appellants were known to her previously and while committing rape, they must have come close to each other, therefore, the identification cannot be doubted in any manner. The victim has stated that the appellant no.1 pressed his hand on her mouth at the time of occurrence for which she could not able to call anybody and was prevented from calling for help. Learned counsel for the appellants contended that it is hard to believe and unlikely that the victim did not get any bodily injury during the alleged occurrence even though she herself stated in her cross-examination that the place of occurrence where she was lying was uneven and having morums Page 11 of 15 // 12 // as well as pieces of stones and the evidence of the doctor (P.W.2) also indicates that the victim did not get any bodily injury. However, in my considered opinion, such contention does not merit acceptance by this Court as even though the surface, where the victim is stated to have been gang raped, was uneven and small pieces of stone were there, but when her body movement was restrained and she was wearing saree and blouse and there is nothing that all her wearing apparels were removed at the time of commission of crime, absence of external injury on the body cannot ipso facto be a factor to doubt the version of the victim, especially in a case of gang rape. The settled principle of law is that if the evidence of the victim remains unshaken, merely because it does not get corroboration from the medical evidence, the same cannot be a ground to disbelieve the victim?s version. In case of Joseph -Vrs.- State of Kerala reported in (2000) 5 SCC 197 and State of Maharashtra -Vrs.- Suresh reported in (2000) 1 SCC 471, it is held that injuries on the person of a rape victim is not even a sine qua non for proving the charge of rape. In case of State of Rajasthan -Vrs.- N.K., the Accused reported in (2000) 5 SCC 30, it is held that absence of injury on the person of the victim is not necessarily an evidence of falsity of the allegation of rape. Page 12 of 15 // 13 // Further, the victim?s conduct in disclosing about the occurrence immediately before her mother (P.W.6) as well as before her uncle (P.W.3) gets corroboration and it is admissible as res gestae under section 6 of the Evidence Act. Section 6 of the Evidence Act has an exception to the general Rule whereunder hearsay evidence becomes admissible. What is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. The key expressions in the section are <… so connected … as to form part of the same transaction=. In normal course, a victim of sexual assault does not like to disclose such offence even before her family members. Victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence. However, in the case in hand, the disclosure made by the victim (P.W.5) before P.W.3 and P.W.6 regarding commission of rape on her is very relevant and strengthens the prosecution case. The non-finding of blood and semen stains on the saree, saya and blouse as per the chemical examination report cannot by itself be a ground to doubt the version of the victim or in any way weakens the prosecution case. The appellants were Page 13 of 15 // 14 // examined by Dr. Jagadish Prasad Sahoo (P.W.9) who was the Medical Officer at C.H.C., Joda and he stated that each of the appellants was capable of committing sexual intercourse. So far as the age of the victim is concerned, P.W.1, who conducted the ossification test of the victim as a Radiology Specialist of D.H.H., Keonjhar, after conducting X-ray of the joints opined the age of the victim to be within thirteen to fifteen years on the date of occurrence. However, the doctor has stated that the ossification test is to determine the approximate age of the victim is not the surest method to determine the age in definite terms and it may be subject to variation of about three years in either way. Taking into account such report of P.W.1, even if two years are added to the age of the victim, still she will be a minor on the date of the unfortunate incident. The victim?s evidence also indicates that she was minor as on the date of occurrence and it has remained unchallenged. Conclusion: 9. In view of the foregoing discussions, since the prosecution case regarding commission of gang rape on the victim (P.W.5) is proved through the evidence of P.W.5, which is corroborated by the evidence of P.W.6 and P.W.3 and in view of the available materials on record, I am of the humble view that Page 14 of 15 // 15 // the learned trial Court is quite justified in holding the appellants guilty under section 376(2)(g) of the I.P.C. The punishment imposed by the learned trial Court is the minimum sentence prescribed for such offence. Therefore, the conviction as well as the sentence awarded to the appellants is hereby confirmed. Accordingly, the criminal appeal being devoid of merits, stands dismissed. The trial Court records along with a copy of the judgment be sent down to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Mr. Asish Mishra, learned counsel for the appellants for rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Rajesh Tripathy, learned Additional Standing Counsel. Orissa High Court, Cuttack The 8th November 2023/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Nov-2023 16:52:18 ................................ S.K. Sahoo, J Page 15 of 15