The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No. 23 Of 2019 From judgment and order dated 15.02.2019 passed by the Addl. Sessions Judge -cum- Special Judge (POCSO), Angul in Special (POCSO) No. 11 of 2016. ----------------------------- Bidyadhar @ Anirudha Das ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Malaya Kumar Swain For State: - 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: 01.02.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Bidyadhar @ Anirudha Das faced trial in the Court of the learned Addl. Sessions Judge -cum- Special Judge (POCSO), Angul in Special (POCSO) No.11 of 2016 for the offences punishable under section 376(2)(i) of Indian Penal Code (hereafter ‘I.P.C.’) read with section 6 of the Protection of // 2 // Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’) on the accusation that on 01.02.2016 at about 8.00 a.m. in village Sunakhani under Talcher police station in the district of Angul, he committed rape on the victim, who was a minor girl aged about sixteen years of age. The learned trial Court vide impugned judgment and order dated 15.02.2019 found the appellant guilty of the offences charged and sentenced him to undergo R.I. for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo further R.I. for one year for the offence under section 376(2)(i) of the Indian Penal Code. No separate sentence was awarded to the appellant for his conviction under section 6 of the POCSO Act in view of section 42 of the POCSO Act. 2. The prosecution case, in short, is that Sumitra Munda (P.W.4), the informant in the case, is the mother of the victim (P.W.1) and Ramesh Digmunda (P.W.2) is the father of the victim. On the date of occurrence i.e. on 01.02.2016 in the early morning, both the P.W.2 and P.W.4 had been to a brick factory to do labour work and at that time the victim (P.W.1) was alone in the house and the appellant taking advantage of the situation entered inside the house of the victim, committed rape on her, Page 2 of 26 // 3 // for which the victim sustained injury on her private part and there was bleeding and out of pain, she was crying loudly. When the parents returned home, they found the victim was crying and her wearing apparels were stained with blood. P.W.4 asked the victim as to what had happened to her and then she disclosed regarding commission of rape on her by the appellant. P.W.4 also noticed bleeding from the private part of the victim and then immediately victim was taken to Talcher police station where written report was presented by P.W.4 and accordingly, Talcher P.S. Case No.35 dated 01.02.2016 was registered under section 376(2)(i) Indian Penal Code and section 6 of the POCSO Act by the Inspector-in-charge who directed P.W.15 Prasanna Kumar Panda, S.I. of police attached to Talcher police station to investigate into the case. During course of investigation, the victim was sent to S.D. Hospital, Talcher on the very day under police requisition for her medical examination and the doctor (P.W.9) examined her and found not only injuries but also blood stains on both the thighs of the victim and her clothings were also found blood stained and the doctor noticing sign and symptoms of recent sexual intercourse and coming to the opinion that the victim was less than six years, tested the blood group of the victim, Page 3 of 26 // 4 // collected the vaginal swab and handed over the same to the police officer, who escorted the victim for the medical examination. P.W.9 submitted the medical examination report vide Ext.4/1. The I.O. (P.W.15) during course of investigation, examined the informant (P.W.4), visited the spot and prepared the spot map, examined witnesses, seized wearing apparels of the victim on production by P.W.4. The victim’s statement was recorded by S.I. Sukanti Kerketa and on 04.02.2016 the appellant was arrested and he was taken to S.D.H., Talcher for his medical examination. The wearing apparels of the appellant were also seized. The statement of the victim was recorded under section 164 Cr.P.C. by the learned S.D.J.M., Angul. The 164 Cr.P.C. statement of the mother (P.W.4) was also recorded and biological samples of the victim as well as the appellant were forwarded to Director, S.F.S.L. Rasulgarh, Bhubaneswar for examination and opinion through the learned S.D.J.M., Angul. On completion of investigation, charge sheet was submitted on 10.05.2016 against the appellant for the offences under section 376(2)(i) of the I.P.C. and section 6 of the POCSO Act. 3. During course of trial, in order to prove its case, the prosecution examined fifteen witnesses. Page 4 of 26 // 5 // P.W.1 is the victim who narrated the incident as to how the appellant committed rape on her. P.W.2 Ramesh Digmunda is the father of the victim and he stated that on the date of occurrence, while he along with his wife (P.W.4) had been to the brick factory for labour work, his daughter (victim) who was sleeping in her maternal uncle’s house situated adjacent to their house and when his father-in- law and mother-in-law went to bring straw heap to thatch the house, the appellant committed sexual assault on his daughter. He further stated that on their return back to home, they found that the victim was crying out of pain and when they asked about the reason of her crying, she narrated the incident and thereafter, they reported the matter to the police station. P.W.3 Nandalal Sijuli, who is an independent witness stated that one day P.W.2 told him that the appellant committed sexual assault on the victim. P.W.4 Sumitra Munda is the informant of the case and she is the mother of the victim who stated in the same manner like that of P.W.2. She proved the written report marked as Ext.3 and she is a witness to the seizure of wearing apparels of the victim as per seizure list Ext.2. She has also given consent for medical examination of the victim. Page 5 of 26 // 6 // P.W.5 Sara Munda and P.W.6 Mangulu Munda are the parents of P.W.4 and grandparents of the victim who stated that on the date of occurrence, while they had been to their work and the parents of the victim had been to a brick factory for labour work, finding the victim alone in the house, the appellant committed rape on the victim and on their return to home, they found the victim was crying and there was bleeding from her private part and thereafter, the parents of the victim took her to the police station and reported the matter. P.W.7 Jambeswar Naik, who was the Gramarakhi at Talcher police station is a witness to the seizure of wearing apparels of the victim. P.W.8 Kathi Behera, who was a retired primary school teacher, is the scribe of the F.I.R. P.W.9 Dr. Susmita Sahoo, who was the Gynecologist in S.D. Hospital, Talcher, examined the victim on police requisition and proved the medical examination report vide Ext.4/1. P.W.10 Susil Kumar Pradhan, who was working as constable at Sadar police station, Talcher, escorted the appellant to S.D. Hospital, Mandapal for his medical examination. He is a witness to the seizure of biological samples of the appellant Page 6 of 26 // 7 // being handed over by the Medical Officer as per seizure list Ext.5. He is also a witness to the seizure of biological samples of the victim as per seizure list Ext.6. P.W.11 Bamadeb Barik, who was the constable attached to Talcher police station, is a witness to the seizure of wearing apparels and biological samples of the appellant as per seizure list Ext.7 and Ext.5 respectively. He is also a witness to the seizure of vial containing the vaginal swab of the victim as per seizure list Ext.6. P.W.12 Dr. Subash Chandra Patra, was the Medical Officer of S.D. Hospital, Talcher, who examined the appellant on police requisition and proved the medical examination report vide Ext.8. P.W.13 Sarat Kumar Sahu, was the Havildar at Talcher police station, is a witness to the seizure of wearing apparels of the appellant as per Ext.7. He is also a witness to the seizure of biological samples of the appellant as per Ext.5. P.W.14 Dr. Deshish Kumar Panda, was the Assistant Surgeon of S.D. Hospital, Talcher, who collected the blood samples of the victim as per the instruction of the Sub-Divisional Medical Officer. Page 7 of 26 // 8 // P.W.15 Prasanna Kumar Panda was the S.I. of Police of Talcher police station and he is the Investigating Officer of the case. The prosecution also exhibited ten documents. Ext.1 is the 164 Cr.P.C. statement of the victim, Ext.2/1 is the seizure list of blood stained frock and pant of the victim, Ext.3 is the F.I.R., Ext.4/1 is the medical examination report of the victim, Ext.5 is the seizure list in respect of biological samples of the appellant, Ext.6 is the seizure list in respect of vial containing the vaginal swab of the victim, Ext.7 is the seizure list in respect of wearing apparels of the appellant, Ext.8 is the medical examination report of the appellant, Ext.9 is the spot map and Ext.10 is the Chemical Examination Report. No witness was examined on behalf of the defence. 4. The defence plea of the appellant is that three to four days prior to the occurrence, there was a quarrel between him and the father of the victim and out of anger, a false case has been foisted against him. 5. The learned trial Court after assessing the oral and documentary evidence available on record, came to hold that from the evidence of the prosecution witnesses, it is crystal clear that the appellant had committed rape on the victim, a minor girl Page 8 of 26 // 9 // who was aged about five to six years. It was further held that the evidence of the victim gets corroboration from the witnesses and from medical evidence and so also from the DNA test and the defence has failed to shake the credibility of the prosecution witnesses. It was further held that the evidence of the prosecution witnesses inspires confidence and trustworthy and free from bias, reliable and credible and accordingly, it was held that the prosecution has successfully established both the charges against the appellant. 6.
Legal Reasoning
There is no dispute that P.W.4 Sumitra Munda is the informant in the case and she presented the written report before the I.I.C. of Talcher police station on 01.02.2016, on the basis of which the case against the appellant was registered and the investigation commenced. The informant has proved her signature on the F.I.R. which has been marked as Ext.3/1 and the written report has been marked as Ext.3. P.W.8, the scribe of the F.I.R. was confronted with the hand writings of the F.I.R. and he stated that he has written the F.I.R. The I.O. (P.W.15) has also stated that on the written report of P.W.4, the case was registered by the I.I.C. However, he admits that the scribe had not given any endorsement of signature in the F.I.R. and P.W.4 disclosed that the F.I.R. has been written by the scribe and the scribe has also been made as a charge sheet witness. In view of such evidence on record, the contention of the learned counsel Page 23 of 26 // 24 // for the appellant that there are suspicious features relating to the lodging of F.I.R. is not acceptable. Conclusion: 12. In view of the forgoing discussions, I am of the humble view that not only the prosecution has successfully established that the victim was minor girl and that too aged about five to six years at the time of occurrence, but also established that the appellant committed rape on her in the absence of her parents. The evidence of the victim is found to be clear, cogent, trustworthy and reliable and gets corroboration from the medical evidence so also the evidence of her parents and grandparents and that apart, prompt lodging of the F.I.R. is another feature which rules out the possibility of concoction of the case against the appellant. The submission of the learned counsel for the appellant that there was possibility of tutoring the victim by her parents to falsely implicate the appellant is also not acceptable inasmuch as no evidence has been adduced to that effect, rather suggestion given to the relevant witness in that respect has been denied. Therefore, the learned trial Court has rightly found the appellant guilty under section 376(2)(i) of the I.P.C. and section 6 of the POCSO Act and sentenced the appellant only under section 376(2)(i) of the Indian Penal Code Page 24 of 26 // 25 // and rightly no separate sentence was awarded for his conviction under section 6 of the POCSO Act in view of section 42 of the POCSO Act. Compensation to the victim: 13. The learned trial Court seems to have recommended the case to the District Legal Services Authority, Angul to award compensation to the victim in consonance with Odisha victim Compensation Scheme, 2012. It is not known whether the victim has received any compensation or not. The Odisha Victim Compensation Scheme, 2012 was revised by Odisha Victim Compensation (Amendment) Scheme, 2018 and keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background of the victim, if no payment of compensation has been made, immediate steps shall be taken in that respect and the District Legal Services Authority, Angul shall examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation under the aforesaid Scheme. Copy of the judgment be forwarded to the District Service Legal Authority, Angul forthwith for compliance. Page 25 of 26 // 26 // Trial Court's record with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. 14.
Arguments
Mr. Malaya Kumar Swain, Advocate who was engaged as counsel for the appellant by the Orissa High Court Legal Services Committee, placed the F.I.R., evidence of the witnesses and the impugned judgment and contended that there are suspicious features relating to the lodging of the F.I.R. inasmuch as the scribe of the F.I.R., who was examined as P.W.8, has failed to identify the informant (P.W.4) and P.W.4 has also not stated that the F.I.R. which was presented by her in Talcher police station was scribed by P.W.8. Learned counsel for the appellant further argued that the doctor (P.W.12) who examined the appellant did not find any injury on his private part which is a feature to prove the innocence of the appellant. It was further argued that there are contradictions in the evidence of Page 9 of 26 // 10 // the victim inasmuch as in the 164 Cr.P.C. statement, though the she stated that while she was playing nearer to her house, the appellant called her and committed rape on her, in her evidence during trial, she stated that while she was sleeping in her house, the appellant entered inside her house and forcibly committed sexual assault on her. Learned counsel further argued that since no documentary proof like birth certificate of the victim has been proved in the case by the prosecution relating to the age of the victim, therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Rajesh Tripathy, learned Addl. Standing Counsel for the State, on the other hand, contended that the occurrence in question took place on 01.02.2016 and on the very day, not only the F.I.R. was lodged but also the victim was medically examined by P.W.9. He further argued that the evidence of the victim relating to her age and commission of offence of rape on her gets corroboration from the evidence of her parents (P.W.2 and P.W.4), her grandparents (P.W.5 and P.W.6) before whom she disclosed about the occurrence so also the doctor (P.W.9) who found sign and symptom of sexual intercourse on her and neither the defence has disputed the age of the victim nor brought out anything on record that the victim was not aged Page 10 of 26 // 11 // about five to six years at the time of occurrence, rather in the accused statement, the appellant himself stated to question no.14 that the victim was a minor girl. Learned counsel for the State further argued that minor discrepancies in the evidence of the victim cannot be a ground to discard her evidence and non- finding of any injury on the private part of the appellant, which was conducted three days after the occurrence, cannot be a ground to disbelieve the prosecution case. He further argued that not only the scribe (P.W.8) has identified his handwritings in the F.I.R., but also the signature of the informant on the F.I.R. has been proved. He argued that the discrepancies in the evidence of informant (P.W.4) and the scribe (P.W.8), if any, cannot be a ground to give benefit of doubt to the appellant. Learned counsel for the State relied upon the decisions of the Hon’ble Supreme Court in the cases of State of Himachal Pradesh -Vrs.- Gian Chand reported in (2001) 6 Supreme Court Cases 71 and State of Punjab -Vrs.- Gurmit Singh reported in (1996) 2 Supreme Court Cases 384. Age of the victim (P.W.1): 7. Adverting to the contentions raised by the learned counsel for the respective parties, let me first discuss about the age of the victim as on the date of occurrence. The victim Page 11 of 26 // 12 // (P.W.1) stated her age to be six years when she was examined on 22.03.2017, which was a year after the date of occurrence. When questions were put to her by the learned trial Court to test whether she was able to give rational answers or not and a competent witness or not, the learned trial Court posed a question to her whether she was prosecuting her studies, the victim answered in negative. When another question was put to her as to why she had come to Court, she stated that the appellant sexually assaulted her for which in order to disclose the same, she had come to the Court. She further stated to the question put by the Presiding Officer as to what would happen if she told lies, she answered that it would be a sin. On the basis of such answers given by the victim, the learned trial Court was satisfied that the victim was matured enough to understand the questions put to her and to give rational answers. The parents of the victim being examined as P.W.2 and P.W.4 have also stated that the victim was five years at the time of occurrence. Her grandparents being examined as P.W.5 and P.W.6 have stated in the similar manner. The doctor (P.W.9), who examined the victim also stated that the age of the victim was less than six years. No suggestion has been given by the learned defence counsel to any of these prosecution witnesses disputing the age Page 12 of 26 // 13 // of the victim. It is true that the birth certificate of the victim has not been proved in this case. Since she was not prosecuting her studies, no school admission register was available to prove her age, but in view of the consistent oral evidence of different competent witnesses including that of the victim relating to her age and also in view of the medical evidence, I am of the humble view that the learned trial Court has rightly came to the conclusion that the victim was a minor girl and she was under sixteen years of age at the time of occurrence. Rape on the victim: 8. The victim has categorically stated that one early morning, while she was sleeping in the house and her father had gone for work, the appellant entered inside her house and forcibly committed sexual assault on her. She further stated that the appellant put his penis inside her vagina and out of pain, she was crying loudly and the appellant went away. She further stated that blood was coming out of her vagina and she was crying and when her father came, she told everything to her father for which she was taken to the police station and then the police sent her to Mandapal hospital and her statement was also recorded by the Court. Only suggestion that has been given by the learned State defence counsel to her was that the appellant Page 13 of 26 // 14 // had not committed any such act and that he has been falsely implicated in the case to which the victim has denied. Therefore, not only the victim has been held to be a competent witness by the learned trial Court, but also her evidence relating to commission of rape on her by the appellant has remained unshaken. The evidence of the victim gets corroboration from her parents. P.W.2 has stated that on the occurrence day, when he and his wife (P.W.4) returned back home from their work and arrived near their house, they found the victim was crying and when they asked the victim about the reason for crying, she narrated the incident and there was bleeding from the private part of the victim for which they took her to the police station. The mother of the victim being examined as P.W.4 has also stated that when they returned home from their work, the victim was crying and her frock and pant were stained with blood and when they asked as to what happened to her, she disclosed that it was the appellant who removed her wearing apparels and committed ugly sexual act. P.W.4 also noticed bleeding from the private part of the victim. P.Ws. 5 and 6 who are the grandparents of the victim have also stated that when they returned from their work and found the victim crying and bleeding from her private part, they asked the victim about the Page 14 of 26 // 15 // reason of her crying and she disclosed before them that the appellant did sexual act with her. The doctor (P.W.9) who examined the victim on the very day of the occurrence, noticed in posterior commissure, blood stains were found in both the thighs, the clothings of the victim were having blood stains and accordingly, she opined that there was sign and symptoms of recent sexual intercourse. The doctor (P.W.9) also opined that the victim was less than six years. The report has been marked as Ext.4/1. Therefore, the evidence of the victim and her conduct in disclosing about the occurrence before her parents, grandparents which is admissible as res geste under section 6 of the Evidence Act, coupled with the evidence of the doctor (P.W.9) clearly proves that the appellant committed rape on the victim. Absence of bodily injury on the appellant: 9. The doctor (P.W.12) who examined the appellant on 04.02.2016 which was three days after the occurrence has stated that the appellant was capable of committing sexual intercourse. However, on examination of the genital, it was found that there was no sign and symptoms of recent sexual intercourse and there was no bodily injury suggestive of forcible sexual intercourse. The clothings of the appellant had no physical Page 15 of 26 // 16 // clue of alleged sexual offence. In the case of Gyan Chand (supra), the Hon’ble Supreme Court has held as follows: “15. The observations made and noted by Dr. Mudita Gupta during medico legal examination of P.W.7 clearly make out the prosecutrix having been subjected to rape. The prosecutrix has spoken of ‘penetration’ in her statement. The discovery of spermatozoa in the private part of the victim is not a must to establish penetration. There are several factors which may negative the presence of spermatozoa. [See: Narayamma v. State of Karnataka : (1994) 5 SCC 728]. Slightest penetration of penis into vagina without rupturing the hymen would constitute rape. [See: Madan Gopal Kakkad v. Naval Dubey : (1992) 3 SCC 204]. The suggestion made in the cross-examination of Dr. Mudita Gupta that injury of the nature found on hymen of prosecutor could be caused by a fall does not lead us anywhere. Firstly, no such suggestion was given to prosecutrix or her mother during cross examination. Secondly, why would the girl or her mother implicate the accused, charging him with rape, if the injury was caused by a fail ? There is nothing of draw such an inference not even a suggestion, to be found on record. Answer to the suggestion made to Dr. Gupta cannot discredit the prosecution Page 16 of 26 // 17 // case in the absence of any other material to support the suggestion. So is the case with absence of external marks of violence on the body of the victim. In case of children who are incapable of offering any resistance external marks of violence may not be found. (See Modi's Medical Jurisprudence, 22nd Edn., P. 502). It is true that marks of external injury have not been found on the person of the accused but that by itself does not negate the prosecution case. Modi has opined (see, Modi ibid, page 509) that even in the case of a child victim being ravished by a grown up person it is not necessary that there should always be marks of injuries on the penis in such cases. Further, it is to be noted that about two days had elapsed between the time of the incident and medical examination of the accused within which time minor injuries, even if caused, might have healed. Therefore, in view of the ratio laid down by the Hon’ble Supreme Court and the fact that the appellant was examined four days after the occurrence, non-finding of any bodily injury on the person of the appellant or any physical clue of sexual offence on his body, cannot be a ground to disbelieve the prosecution case of rape on P.W.1 by the appellant. Page 17 of 26 // 18 // Discrepancies in the evidence of victim: 10. It is true that the victim has stated in her 164 Cr.P.C. statement that while she was playing nearer her house, the appellant called her and then committed rape on her, whereas in her evidence during trial, she stated that while she was sleeping in the house, the appellant committed rape on her but this discrepancy which has not even been confronted to the victim during cross-examination by the learned defence counsel, cannot be a ground to disbelieve the victim’s statement regarding commission of rape. Evidence given in a Court under oath has great sanctity and the same is called ‘substantive evidence’. Statement under section 164 Cr.P.C. can be used for both corroboration and contradiction. In a case, where the Magistrate has to perform the duty of recording a statement under section 164 of Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statement under section 164 Cr.P.C. The Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the case. The object of recording of the statement of Page 18 of 26 // 19 // a witness under section 164 Cr.P.C. has two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under section 164. A proposition to the effect that if a statement of a witness is recorded under section 164 Cr.P.C., his evidence in Court should be discarded, is not at all warranted. Section 157 of the Evidence Act makes it clear that a statement recorded under section 164 Cr.P.C. can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. During the investigation, the police officer may sometimes feel that it is expedient to record the statement of a witness under section 164 Cr.P.C. which ordinarily happens when the witness to a crime is clearly connected to the accused, or where the accused is very influential, owing to which the witness may be influenced. In the case of Gurmit Singh (supra), the Hon’ble Supreme Court held as follows:- 8....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 Page 19 of 26 // 20 // 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 of 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 Page 20 of 26 // 21 // interested in the outcome of the charge levelled 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 at 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 over-looked 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 Page 21 of 26 // 22 // 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.... 21...The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be Page 22 of 26 // 23 // sensitive while dealing with cases involving sexual molestations.” Therefore, the minor contradiction in the evidence of the victim (P.W.1) is not a ground to disbelieve her testimony. Whether there are suspicious features relating to the lodging of F.I.R.: 11.
Decision
In the result, the JCRLA being devoid of merit stands dismissed. S.K. Sahoo, J. ………………………….. Orissa High Court, Cuttack The 1st February 2023/PKSahoo Page 26 of 26