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IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.35 of 2020 Appeal from the judgment and order dated 17.03.2020 passed by the Additional Sessions Judge, Talcher in C.T.(S) Case No.93 of 2016. --------------------------- Saluka Baipai ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Akhaya Kumar Beura Advocate For Respondent: - Mr. Manoranjan Mishra Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 23.08.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Saluka Baipai faced the trial in the Court of learned Additional Sessions Judge, Talcher in C.T.(S) Case No.93 of 2016 for offence punishable under section 376 of the Indian Penal Code (hereinafter ‘the I.P.C.’) on the accusation // 2 // that on 04.03.2016 at about 7.00 a.m. at Choranala jungle, he forcibly committed rape on the victim without her consent. The learned trial Court vide judgment and order dated 17.03.2020 found the appellant guilty under section 376 of the I.P.C. and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.15,000/- (rupees fifteen thousand), in default, to undergo R.I. for six months. The Prosecution Case:
Legal Reasoning
The prosecution case, as per the first information report (hereinafter ‘the F.I.R.’) lodged by the victim on 05.03.2016 before the O.I.C., Khamar Police Station in the district of Angul, is that on 04.03.2016 at about 7 O’ clock in the morning, she had been to Choranala jungle to attend call of nature, where the appellant, who was her co-villager, committed rape on her. On such report, Khamar P.S. Case No.20 dated 05.03.2016 was registered against the appellant under section 376 of the I.P.C. P.W.13 Namita Nayak, the O.I.C. of Khamar Police Station took up investigation of the case, examined the informant and other witnesses, visited the spot and prepared the spot map (Ext.11), arrested the appellant and forwarded him to the Court after medical examination and other formalities. She Page 2 of 17 // 3 // also seized the wearing apparels of the appellant under seizure list Ext.5. The biological samples of the appellant on production of the escort party after his medical examination were seized and she also received the medical examination report of the appellant. Prayer was made to the learned S.D.J.M., Pallahara for recoding of the statement of the victim under section 164 of Cr.P.C. and the victim was also sent for her medical examination and her wearing apparels were seized under seizure list vide Ext.8, and the exhibits were dispatched to the S.F.S.L., Rasulgarh, Bhubaneswar through the learned trial Court and on completion of investigation, charge sheet was submitted against the appellant under section 376 of the I.P.C. Prosecution Witnesses & Documents Exhibited: During course of the trial, in order to prove its case, the prosecution examined as many as thirteen witnesses. P.W.1 Dr. Chinmaya Kumar Panda was the Medical Officer at the Community Health Centre, Khamar who examined the appellant and stated that at the time of examination, he did not found any bodily injuries on the appellant’s person and that he was capable of sexual intercourse. P.W.2 Dr. Subhadra Misra was posted as an Assistant Surgeon of Khamar C.H.C. who examined the victim (P.W.3) on Page 3 of 17 // 4 // police requisition and stated that at the time of examination of the victim, she was aged about twenty years and there was no bodily injury on her person suggestive of forcible sexual intercourse. P.W.3 is the victim who stated that on the date of occurrence at about 7.00 a.m., she had been to attend call of nature to Choranala and while she was returning home after attending the call of nature, suddenly the appellant caught hold of her and after stripping her, forcibly committed rape on her. P.W.4 Raghunath Pradhan was posted as a constable at Khamar Police station who stated that one black colour full pant and one while black colour shirt were seized in his presence on production of the appellant by the O.I.C., Khamar Police Station (P.W.13) and he is a witness to such seizure vide seizure list Ext.5. He is also a seizure witness to the biological samples of the appellant vide seizure list Ext.6. P.W.5 Subal Kumar Samal was a Havildar posted at Khamar Police Station who accompanied the appellant to the hospital for his medical examination and collection of pathological samples, which he later produced before the O.I.C. (P.W.13), Khamar Police Station. He was also a seizure witness to the biological samples of the appellant vide seizure list Ext.6. Page 4 of 17 // 5 // P.W.6 Gardi Purti is the father of the victim (P.W.3) who stated that on the fateful day, while he was working in the brick kiln, he received a phone call from a villager and thereafter, he rushed to his house. On reaching home, the victim told her that she had been raped by the appellant. P.W.7 Sukrumani Purty is the mother of the victim who stated that while she was working in the brick kiln, she received a phone call from the victim (P.W.3) and she rushed to the house. On reaching at home, the victim narrated the incident before her. P.W.8 Budhuram Baipai is the scribe of the F.I.R. who stated to have scribed the F.I.R. as per the version of the victim. He is also a witness to the seizure of wearing apparels of the victim as per seizure list Ext.8. P.W.9 Sukaram Baipai, P.W.10 Ladura Samad and P.W.11 Damodar Papan are the co-villagers of the appellant as well as the victim who stated that the parents of the victim informed them about the incident. They further stated that a village meeting was convened to solve the dispute but the appellant did not turn up and then the villagers advised the victim and her parents to file the case. Page 5 of 17 // 6 // P.W.12 Jugal Kishore Sahu was a Havildar attached to Khamar Police Station. He is a witness to the seizure of wearing apparels and biological samples of the appellant vide seizure lists Ext.5 and Ext.6 respectively. P.W.13 Namita Nayak was posted as the O.I.C. of Khamar Police Station and she is the Investigating Officer of the case. The prosecution exhibited eighteen numbers of documents. Ext.1 and Ext.2 are the medical examination reports, Ext.3 is the F.I.R., Ext.4 is the 164 of Cr.P.C. statement of the victim, Exts.5, 6 & 8 are the seizure lists, Ext.7 is the command certificate of P.W.5, Ext.11 is the spot map, Ext.12 is the medical examination of the appellant, Ext.13 is the requisition to learned S.D.J.M., Pallahara, Ext.14 is the medical requisition, Ext.15 is the prayer made by the I.O. to the Court to forward the wearing apparels and biological samples of the S.F.S.L., Ext.16 is the forwarding letter, Ext.17 is the acknowledgement and Ext.18 is the chemical examination report. Defence Plea: The defence plea of the appellant is one of complete denial and it is pleaded that on account of family dispute, a false Page 6 of 17 // 7 // case has been foisted. No witness was examined on behalf of the defence. Findings of the Trial Court: The learned trial Court, after assessing the oral and documentary evidence on record, has been pleased to hold that there is no undue delay in the lodging of the F.I.R. It was further held that the victim has given a clear account of whole incident and there is no prevaricating statement of her and there is nothing to show in her cross-examination to indicate even a cloud of suspicion in her testimony. It was further held that there is nothing to show that the victim had any motive to falsely implicate the appellant rather the evidence of the victim and her parents clearly indicate that prior to the incident, the relationship between both the families was smooth and they were in visiting terms to the houses of each other. The learned trial Court further held that minor inconsistencies in the evidence of the witnesses cannot be a factor to disbelieve the prosecution case. Accordingly, it was held that the prosecution has successfully proved the charge under section 376 of the I.P.C. against the appellant. Page 7 of 17 // 8 // Contentions of parties:
Legal Reasoning
Mr. Akhaya Kumar Beura, learned Amicus Curiae appearing for the appellant contended that though in the F.I.R., the victim has stated that the occurrence in question took place on 04.03.2016 in morning hours at about 7 O’ clock and she has also stated the same timing being examined as P.W.3 during trial but in her statement recorded under section 164 of Cr.P.C. marked as Ext.4, she has stated that the occurrence took place in the evening hour at about 7 O’ clock. Therefore, the timing of the occurrence is discrepant in nature and it creates doubt about the authenticity of the prosecution case. Learned counsel further argued that though the victim has stated in her evidence that she struggled hard during the occurrence and rape was committed in the jungle on the ground but the doctor has noticed no bodily injury on her person suggestive of forcible sexual intercourse. Further her clothings were intact without soil and there was no physical clue present on it. Even though her wearing apparels were seized but no blood or no semen was traced on the same, which creates doubt about the version of the victim. Learned counsel further argued that though it is stated that the appellant single-handedly committed rape on the victim but since she has stated that she was pushing the appellant and Page 8 of 17 // 9 // struggling hard to come away from him for which he was holding her from the backside, in such a position, it could have been difficult on the part of the appellant not only to undress himself as he was wearing a full pant but also to disrobe the victim, who was wearing a chudidar and panty at that point of time and to commit rape on her. Learned counsel further argued that the spot visit report indicates that there was no clue found at the spot and in such a case, it would be difficult to accept the statement of the victim and therefore, it is a fit case where benefit of doubt is to be extended in favour of the appellant. Learned counsel further stated that the appellant was taken into custody on 16.03.2016 and he was never released on bail during trial nor during pendency of the appeal and he has undergone the substantive sentence of seven years imposed by the learned trial Court. Mr. Manoranjan Mishra, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and submitted that even though the medical examination report does not corroborate the evidence of the victim but since the evidence of the victim has remained unshaken and her evidence gets corroboration from her parents before whom she narrated about the incident, it cannot be said that the learned trial Court Page 9 of 17 // 10 // has committed any illegality in convicting the appellant and therefore, the appeal should be dismissed. Analysis of evidence: Adverting to the contentions raised by learned counsel for both the parties, there is no dispute that in this case, the victim (P.W.3) is a star witness on behalf of the prosecution. She has stated her age to be twenty years at the time of occurrence and further stated that on the date of occurrence at about 7 a.m., she had been to attend call of nature to Choranala jungle and while she was returning home after attending call of nature, the appellant came and caught hold of her, made her naked, slept over her and committed rape on her. She further stated that when she tried to shout, the appellant closed her mouth by pressing it by his hand and after committing rape, the appellant fled away holding a ‘tangia’. She further stated that when she came back home, her parents had gone to their work and she telephoned to them to inform about the occurrence and after her parents reached home in the evening, she narrated about the occurrence before them and then she went to the police station in the evening along with her father and one Budhuram and the F.I.R. was lodged. She further stated about the seizure of her wearing apparels and examination by the Page 10 of 17 // 11 // doctor and also recording of her statement under section 164 of the Cr.P.C. by the learned Magistrate. In the cross-examination, she has stated that the house of the appellant is one house away from her house and prior to the occurrence, her family members had good relationship with the appellant’s family and both families were in visiting terms with each other and she used to go to the house of the appellant and the appellant also used to visit her house. She further stated that on the date of occurrence, she had gone alone to attend the call of nature, though she usually go to attend the call of nature with her friends. She further stated in the cross-examination that when the appellant caught hold of her, she tried to free herself and she was pushing the appellant and struggling hard to come away, but she could not succeed. She further stated that she had not sustained any injury on her person. When the appellant made her naked, she shouted but she could not slip away from the clutches of the appellant as he was holding her from backside. She further stated that the appellant was wearing a full pant at that point of time and he undressed himself. She further stated that while opening his clothes, the appellant was holding her in one hand and sleeping over her for which she could not free Page 11 of 17 // 12 // herself to go away and that she was wearing a chudidar on that day. It is noteworthy to mention that though the victim stated in her F.I.R. as well as in her evidence that the occurrence in question took place in the morning hours at 7 O’ clock while she had gone to attend the call of nature, but most peculiarly, in her statement under section 164 of the Cr.P.C. marked as Ext.4, she stated that the occurrence took place in the evening hour at 7 O’ clock. If the victim was struggling hard to come away from the clutches of the appellant and pushing him, for which the appellant caught hold of her from the backside, it would have been difficult task on the part of the appellant not only to open his own full pant but also to open the chudidar and the panty of the victim and then to make the victim lie on the ground to commit rape. The occurrence took place in the jungle which is locally known as ‘Choranala’. The spot visit note (Ext.11) prepared by the I.O. indicates that the occurrence took place inside the dense forest having Mahua flower trees and other bushy jungle and on the paddy land of one Bisikeshan Bapoi. If the victim was struggling hard at such a place after being completely naked to prevent the appellant from committing rape Page 12 of 17 // 13 // on her then some kind of injury was expected on her person and there would have also been some soil on her clothings, but the doctor (P.W.2) who examined her at the C.H.C., Khamar stated that there was no bodily injury on the person of the victim suggestive of forcible sexual intercourse and examination of genitalia did not suggest any recent sexual activity. The clothings were found intact without soiling of any type and there was no physical clue of the alleged sexual offence found on it. No forensic substance of discharge was found and the doctor opined that there was no sign suggestive of forcible sexual intercourse within preceding 24 hours from the time of her examination. The doctor stated that the victim did not say anything before her about forcible intercourse or that she was raped. Therefore, the manner in which the victim stated the occurrence to have been taken place and the place where the occurrence has allegedly taken place finds no corroboration from the evidence of medical officer (P.W.2). The I.O. visited the spot on 06.05.2016 prepared the spot visit report along with spot map, but nothing was noticed during the spot visit by her. There are some suspicious features in the case. According to the victim, every day she used to go to the jungle to attend the call of nature with her friends but it is not known as Page 13 of 17 // 14 // to why on the fateful day, she went alone. She has stated in her cross-examination that there was no lavatory in her village and everyone was going to Choranala jungle to attend the call of nature and that place of occurrence was at an audible distance from her home. Had she shouted and protested when the appellant tried to commit forcible sexual intercourse on her, it would have drawn the attention of others whose presence at that time was very natural to attend the call of nature. The non- finding of the mark of struggle at the spot is another suspicious feature in the case as the victim has stated that all along she was pushing the appellant and struggling hard to escape and run away from the spot. No reverse presumption without proving foundational facts: The learned trial Court has pressed into service section 114A of the Indian Evidence Act to hold that when victim of rape claims to have been raped without her consent then the Court shall presume that she did not consent. It would be wise for the Court to elucidate the mandate under section 114A of the said Act which reads as follows: “114A. Presumption as to absence of consent in certain prosecution for rape. -- In a prosecution for rape under clause (a), Page 14 of 17 // 15 // clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.” From a bare perusal of the above provision, it is more than clear that the reverse presumption can be applied to a case where the foundational facts are proved by the prosecution beyond all reasonable doubts. In the case in hand, the prosecution had the onerous duty to prove the factum of rape on the victim by the appellant. Unless and until the prosecution does not prove this aspect, the aforesaid presumption cannot be pressed into service to place a reverse burden on the appellant to prove his innocence as doing so would be against the age old principle of criminal law, i.e. “everyone is presumed to be innocent until proved guilty”. The above position of law has been reiterated by the Hon’ble Supreme Court in the case of Munna – Vrs.- State of Madhya Pradesh reported in (2014) 10 Supreme Court Cases 254, wherein it was held as follows: Page 15 of 17 // 16 // “Thus, while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114A of the Evidence Act, but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused.” Conclusion: In view of the forgoing discussions, when there are doubtful features in the evidence of the victim, the surrounding circumstances and her version is not corroborated by the medical evidence and the time of occurrence as she has stated in her 164 of Cr.P.C. statement is totally different from what she has stated in he F.I.R. and during trial, in my humble view, it is a fit case where benefit of doubt should be extended in favour of the appellant. Accordingly, the conviction of the appellant under section 376 I.P.C. is hereby set aside and the appellant is Page 16 of 17 // 17 // acquitted of such charge. The appellant be set at liberty forthwith if he is still in custody, if his detention is not required in any case. A copy of this order along with a copy of the judgment shall be communicated to the learned trial Court forthwith. The Jail Criminal Appeal is allowed. Before parting with the case, I would like to put on record my appreciation to Mr. Akhaya Kumar Beura, learned counsel for the appellant for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to his professional fees, which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Manoranjan Mishra, learned Additional Standing Counsel. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 23rd August, 2023/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Aug-2023 17:02:59 Page 17 of 17