Orissa High Court
Danardan Patra vs State Of Orissa on 14 August, 2002
Equivalent citations: 2002(II)OLR443
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. This appeal has been filed by the appellant challenging the order of conviction for the offence under Section 376, IPC in S.T.No. 15/134 of 1993 in the Court of Additional Sessions Judge, Balasore for his conviction under Section 376, IPC, appellant has been sentenced to undergo R.I. for seven years and to pay a fine of Rs. 500/-. It has been ordered that if the fine shall be paid the entire sum shall be paid to the prosecutrix (P.W.No. 5). That order of conviction was passed on July 20th 1994 and the appellant as stated by learned counsel for the appellant was an under trial prisoner. Therefore, it is stated at the Bar that the appellant has already suffered the imprisonment as per the impugned judgment.
2. While challenging the order of conviction Mr. S. K.Tripathy addressing the Court on behalf of Mr. D.P.Dhal argues that even if the entire logic adopted by the trial Court is correct, then also on a reference to the evidence of the prosecutrix (P.W.6) and the Doctor (P.W.No. 8) and the medical report Ext. 5, that does not make out a case of rape as defined in Section 375, IPC and punishable under Section 376(1), IPC and therefore appellant's conviction is liable to be set aside. After analysing the facts and evidence, learned Standing Counsel though initially defending the order of conviction under Section 376, IPC but on a re-reading the evidence on record, while agreeing to the argument of the appellant regarding no offence under Section 376, IPC having been made out, he argues that the evidence on record at least proves a case under Section 354, IPC. Learned counsel for the appellant does not dispute to the later part of the contention of the learned Standing Counsel.
3. To deal with the aforesaid contention raised at the Bar, it is proper to refer to the factual aspect involved in the case. The undisputed position on record is that by the date of occurrence, prosecutrix i.e., P.W.No. 6 was aged about 13 years, that in the evening hours while she was returning to her Master's house after witnessing the Saraswati Puja at Anganbadi Centre she got the company of the appellant who persuaded her to take a short cut route through paddy fields and thereafter in her evidence P.W.6 alleged against the appellant regarding committing of rape. P.W.6 stated in her evidence that when they reached at the spot i.e., a paddy field appellant wanted to terrorise her on the pretext of existence of spirit and persuaded her to become necked so as to not being harmed by the ghost and when she did not listen to that advice then appellant removed her chadi, made her to lie on the ground and slept over her and committed penetration of his penis to her private parts. According to her at that time appellant gaged her mouth and after discharge of the semen when he removed his hand prosecutrix raised hullah attracting attention of several persons which includes P.W. Nos. 1 and 2. As noted by the trial Court, those two witnesses (P.Ws. 1 and 2) did not support the prosecution at the time of trial and out of them P.W.No. 2 is the brother-in-law of the accused. The trial Court thus found the hostile attitude of the said two witnesses not detrimental to the prosecution case relating to the allegation of rape. Though at the time of argument, learned counsel for the appellant invited attention of this Court to that aspect while arguing the case for acquittal, after going through such evidence, this Court finds no acceptable argument from the side of the appellant or incorrect approach adopted by the trial Court in that respect. A criminal charge has to be proved by the prosecution beyond all reasonable doubts by clear, cogent and acceptable evidence. That is the requirement of law. Decision in a Criminal trial should not depend on the whims or mercy of some untrustworthy persons who supported the prosecution at the time of investigation and turned hostile at the time of trial. Of course, if any positive evidence is available from such hostile witnesses that should be duly considered and appreciated by the trial Court. On the other hand mere plea of denial or ignorance about the occurrence by such hostile witnesses is not detrimental to the prosecution if other acceptable evidence is on record to prove the charge. In the instant case, that being the situation, non-supporting of P.Ws. 1 and 2 to the case of the prosecution does not render the prosecution helpless or untrustworthy.
4. The occurrence as narrated by P.W.6 is with allegation of penetration and cohabitation. The evidence of P.W.No. 8 in that respect is the only link to find if the evidence of P.W.No. 6 is credible regarding the offence of rape. P.W.No. 8 (Dr.Kasturi Misra) in her examination-in-chief stated that -
"On 11.2.91 I was Lady Asst. Surgeon of -
(name of the place omitted). On that day on Police requisition I examined - (name and description of P.W.6 omitted) and noticed the followings :
(i) She had no external injury over her private part.
(ii) The hymen was present and intact.
(iii) No abnormality was detected regarding the hymen.
(iv) She had no secondary sexual grown of hair over the pubic.
(v) No matting was noticed.
(vi) Vaginal swab was collected and on examination no spermatozoa was found present.
2. X-ray of her elbow was taken. The head of radius ulna appeared but not fused with the shaft. X-ray of illiac crest did not appear. So the age of the girl was assessed to be below 14 years.
3. This is my report marked Ext. 5. Ext. 5/1 is my signature therein.
4. In case of minor girl, below 14 years, slight penetration would not rupture the hymen.
Cross-examination (for the accused)
5. From my opinion as per Ext. 5, there was no penetration."
(underlined to put emphasis)
5. The above quoted evidence of P.W.No. 8 clearly makes out a case of no penetration. Therefore, the P.W.No. 6 who is a minor girl at the time of occurrence it goes to indicate that the appellant slept on her and had a sort o sexual intercourse without making any penetration. In view of the provision in Section 375, IPC unless there is proof of penetration that cannot constitute an offence of rape. The trial Court unfortunately did not take note of this glaring evidence and the legal position. Under such circumstance conviction under Section 376, IPC is not sustainable and accordingly the said conviction is set aside. The aforesaid act of the appellant will not also amount to attempt to commit rape punishable under Section 376/511, IPC inasmuch as, having sufficient opportunity appellant did not make attempt to penetrate his penis in the private part of P.W.No. 6.
6. It is the settled principle in India that 'falsus in uno falsus in omnibus' is not a sound principle which is to be adopted while assessing evidence of a witness. Therefore, because a part of evidence of P.W.6 relating to allegation of rape was found to be exaggerated, her entire evidence cannot be discarded as untrue. In her cross-examination, she has clearly admitted that at the time of occurrence, she could not see about the penetration. Therefore, on a careful reading of her evidence and adopting a pragmatic approach, Court can gather the information that at the time of occurrence after removing her chadi when the appellant slept on her having his male organ, robbing against her private part causing her pain so also discharge of semen that circumstance was sufficient to give her the impression of rape, though that offence was not committed. On a conjoint reading of evidence of P.Ws. 6 and 8, it appears that appellant used criminal force to outrage her modesty and in fact outraged her modesty by removing her chadi and doing the complained act and therefore he is guilty of the offence punishable under Section 354, IPC. Accordingly, the appellant is convicted for the offence under Section 354, IPC. As rightly argued by the learned Standing Counsel, a person charged under Section 376, IPC can be convicted if the act squarely comes within the purview of the former offence.
7. Section 354, IPC provides for a maximum punishment of imprisonment for two years with or without fine. Under the given facts and circumstance, appellant is convicted for the offence with the rigorous imprisonment for two years and as noted above, he has already served that sentence.
8. The Criminal Appeal is allowed in part by modifying the order of conviction from Section 376 to 354, IPC and also changing the period of sentence in the manner indicated above.