Orissa High Court
Gandhi Bindhani vs State Of Orissa on 4 December, 2023
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.5 of 2022
From the judgment and order of sentence dated 08.12.2017 passed by
the learned Sessions Judge-cum-Special Judge, Kandhamal, Phulbani in
C.T. Case No.140 of 2016.
----
Gandhi Bindhani .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.A.K. Sahoo,
(Advocate)
For Respondent - Mr. P.K. Mohanty
Addl. Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR.JUSTICE G. SATAPATHY
Date of Hearing : 24.11.2023 :: Date of Judgment: 04.12.2023
D.Dash,J. The Appellant, by filing this Appeal, from inside the jail, has called in question the judgment of conviction and order of sentence dated 08.12.2017 passed by the learned Sessions Judge-cum-Special Judge, Kandhamal, Phulbani in Criminal Trial No.140 of 2016 arising out of G.R. Case No.201 of 2016 corresponding to Balliguda P.S. Case No.68 of 2016 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baliguda.
Page 1 of 8 JCRLA No.05 of 2022{{ 2 }} The Appellant (accused) thereunder has been convicted for commission of offence under sections 376(2)(n) of the Indian Penal Code, 1860 (for short, 'the IPC') and section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, S.C. & S.T. (PoA) Act. Accordingly he has been sentenced to undergo imprisonment for life and pay a fine of Rs.50,000/- (Rupees Fifty Thousand) in default to undergo rigorous imprisonment for a period of one year on each count with the stipulation that the substantive sentences would run concurrently.
2. Prosecution Case:-
On 17.05.2016 around 9 p.m., the victim (P.W.1) aged about 19 years who was then residing at village Maningkuti had come to the bus stand at Baliguda. Another girl who happens to be her maternal uncle's daughter had accompanied her and they were to proceed to Berhampur. The accused is the brother of that girl who had accompanied P.W.1, i.e., he is the son of the maternal uncle of P.W.1 and as such a brother. The accused having arrived there asked P.W.1 to go with him to bazar as he would cause her photographs to be taken in the bazar. P.W.1 in good faith accompanied the accused. The accused then took P.W.1 on his bicycle to village Sindrigaon. It is stated that accused having taken P.W.1 to a deserted by-lane forcibly committed sexual intercourse upon her and raped her. The accused then took her deep into the jungle and committed repeated sexual intercourse with her during the night. Around 5 a.m. in the morning, the accused abandoned the victim (P.W.1) somewhere near village Sindrigaon. Being exhausted, the victim (P.W.1) went to Maningkuri and disclosed about the incident to her mother (P.W.2). . In the absence of the Inspector-in-Charge of the Page 2 of 8 JCRLA No.05 of 2022 {{ 3 }} Police Station, she lodged report with the Sub-Inspector of Police (S.I.), Baliguda Police Station on 19.05.2016 around 1 p.m .
The S.I. receiving the above written report from the victim (P.W.1) treated the same as F.I.R. and after registration of the case, requested the Sub-Divisional Police Officer (S.D.P.O.-P.W.6) to proceed with the investigation. During investigation, P.W.6 directed the lady S.I. to record the statement of the victim (P.W.1) in his presence.
3. In course of investigation, the Investigating Officer examined the victim, visited the spot and prepared the spot map. He sent the victim P.W.1 to the Sub-Divisional Hospital (SDH), Baliguda for her medical examination under requisition. On the same day, he also apprehended the accused and sent him for medical examination under requisition. Materials in support of the rape being committed upon the victim (P.W.1) to be collected, on completion of the investigation, final form was submitted placing the accused for trial for commission of offences under section 376(2)(n) of the IPC and section 3(2)(v) of the S.C./S.T. (PoA).
4. Receiving the final form, learned S.D.J.M., Baliguda took cognizance of said offences and after observing all the formalities, committed the case to the Court of Sessions. That is how the trial commenced against these accused persons by framing the charge for the above mentioned offences.
5. The plea of the defence is that of complete denial and false implication.
6. The prosecution, during trial, in total has examined six (6) witnesses. Out of whom, as already stated, the victim is (P.W.1) and Page 3 of 8 JCRLA No.05 of 2022 {{ 4 }} P.W.2 is her mother. P.W.3 and 4 are the Doctors, who had examined P.W.1, the victim. The S.D.P.O. has come to the witness box at the end as P.W.6. The Executive Magistrate who had furnished the caste particulars has also been examined during trial as P.W.5.
The prosecution, besides leading the evidence through the above witnesses, has also proved FIR as Ext.1, statement of the victim recorded under section 164 Cr.P.C. i.e. Ext.6, the medical report of victim and the accused is Ext.10 and Ext.11 respectively and the spot map is Ext.9.
7. The plea of the defence is that of complete denial and false implication. No evidence has also been let in from the side of defence
8. Learned counsel for the Appellant (accused) submitted that the evidence of P.W.1 being put to test, it would reveal that the Trial Court basing upon the solitary testimony of P.W.1 has committed grave error in holding the accused guilty to have committed the offense under section 376 (2)(n) of the IPC as well as section 3 (2)(v) of the S.C./S.T. (PoA) Act. Inviting our attention to the deposition of P.W.1, he submitted that it is a clear case of consensual sexual intercourse between the victim (P.W.1) and the accused and thereafter for the reason or other, it has taken the turn to a case of rape. He submitted that if the conduct of the victim (P.W.1) as well as the accused right from the beginning is marked till the end, those are all quite consistent in favour of a finding that the allegation that the accused forcibly had the sexual intercourse upon the deceased is false as it is not believable. He further submitted that although the medical evidence provides some support to the evidence of P.W.1 when the Doctor (P.W.3) has stated to have noted some injuries on the person of the victim (P.W.1), those in the facts and Page 4 of 8 JCRLA No.05 of 2022 {{ 5 }} circumstances of the case are not of any such significance. He, therefore, contended that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.
9. Learned counsel for the State submitted that when the evidence of P.W.1 receive corroboration from the evidence of P.W.3, that is enough to sustain the order of conviction impugned in this Appeal. He submitted that P.W.1 has deposed in a natural manner and no such element of suppression surfaces in her evidence. According to him, even though it is accepted for a moment that P.W.1 had accepted the request of the accused and went with him, yet insofar her sexual exploitation, the role stated to have been played by the accused is wholly believable as there remains no infirmity in her evidence.
10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to 6) examined from the side of the prosecution and have perused the documents admitted in evidence and marked Ext.1 to Ext.19 from the side of the prosecution.
11. The star witness for the prosecution is P.W.1. As already stated she is the informant and the victim. The written report (Ext.1) had been lodged by her which had given rise to the registration of the case and commencement of investigation into such allegation made by this P.W.1 against the accused. It is stated that in the night when she (P.W.1) with another who was like her elder sister were there in the Baliguda bus stand, at that time, the accused who is related to the girl who had accompanied the victim as her brother came there and called the victim. It has been further stated that the accused then told her to go to the bazar Page 5 of 8 JCRLA No.05 of 2022 {{ 6 }} with him for taking her photograph and accordingly, both went on a bicycle. Then it has been alleged in the F.I.R. (Ext.1) that having stopped on the midway, the accused took victim (P.W.1) to a lonely place and there giving threat, forcibly raped the victim. It is the further F.I.R. version that all through during the night, the accused sexually exploited victim (P.W.1). This F.I.R. has been written by one Mukash Pradhan, who has not been examined. The prosecution has also not tendered the evidence by examining the girl who had accompanied the victim (P.W.1) up-to the bus stand at Baliguda.
It is stated by P.W.1 stated that when she was at Baliguda bus stand, accused suddenly appeared and dragged her to Sindrigaon. It is stated that the accused was rolling the bicycle along and took her to a rest shed in the village. The F.I.R. version varying with the evidence of P.W.1 that when in the F.I,.R. it is stated that the accused came and asked her to go to bazar so that he would take her photographs; that is not now stated. It is, however, stated that accused suddenly appeared and dragged her and then it is said that the accused went on rolling a bicycle along. Thus the evidence is to the effect that accused was carrying the bicycle on one hand and the victim was going with the accused. The dragging part as it is stated by P.W.1 is not at all believable. P.W.1 is not stating to have taken any such step during her journey with the accused to escape, when she does not state to have been under that much of restraint as not so possible to escape. She is not stating to have shouted for help. P.W.1 further states that the accused proposed to marry her and it was also objected by P.W.1 as the accused was a married man. She next states that there was conversation between the accused and the victim.
Page 6 of 8 JCRLA No.05 of 2022{{ 7 }} P.W. 1 next says that the accused thereafter assaulted her, threw her certificate and other testimonials and then he tore down the wearing apparels and forcibly committed sexual intercourse in the very rest shed. She next states that the accused detained her there and committed forcible sexual intercourse thrice and then having taken to the jungle, had repeated sexual intercourse throughout the night. In the F.I.R. the victim is not stating anything about the proposal of marriage, objection from the side of the victim. Then also when two were there, the conduct of P.W.1 is very significant that she even at that point of time did not make any attempt to leave the place. Now it is stated that having made the attempt, she could not succeed. At the relevant time in the bus stand, three to four buses were there, people were also roaming around in the bus stand and shops were also open. When during the evidence, P.W.1 states that accused having appeared dragged her, she at the same time says to have never raised any alarm or shout at that time. One thing that when she was dragged and so taken by the accused is believed, it cannot be simultaneously believe that the accused was also then carrying the bicycle with him or was carrying the victim in her bicycle and proceeding. All throughout the place from the bus stand till the place where the victim says to have been sexually exploited as per the evidence of P.W.1, shops and houses were there. The victim has not sought anybody's help by giving any indication for her being rescued. The victim and the accused having together proceeded for such a distance and it is not said that the victim was taken forcibly under any confinement or restraint and then there is not attempt from the side of the P.W.1 to somehow escape the entire version of P.W.1 up-to that extent is unbelievable. That daughter of the maternal uncle of P.W.1, who had accompanied P.W.1 to the bus stand and was there till the Page 7 of 8 JCRLA No.05 of 2022 {{ 8 }} victim (P.W.1) left has not been examined. The defence suggestion is that the two were in love and since the accused refused to marry, the case has been foisted.
In the facts and circumstances which emerge in the evidence as above discussed, we find the evidence of P.W.1 as to the forcible sexual intercourse upon her by the accused to be unbelievable. In that view of the matter, the evidence of P.W.3, the Doctor who had examined the victim (P.W.1) do not lead us accept the version of P.W.1 as to what she has stated against the accused. Therefore, we are not in a position to concur with the finding of the Trial Court holding the accused to be guilty of commission of the offence under section 376(2)(n) of the IPC and section 3(2)(v) of the S.C./S.T. (PoA) Act.
12. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 08.12.2017 passed by the learned Sessions Judge-cum-Special Judge, Kandhamal, Phulbani, in C.T. No.140 of 2016 are hereby set aside.
The Appellant (accused), namely, Gandhi Bindhani be set at liberty forthwith, if his detention is not required in connection with any other case.
(D. Dash) Judge.
G. SATAPATHY I agree.
(G. SATAPATHY)
Judge.
Signature Not Verified
Himansu
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 07-Dec-2023 12:27:21
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JCRLA No.05 of 2022