Orissa High Court
Baman Charan Munda vs State Of Odisha on 16 August, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.74 of 2015
From judgment and order dated 24.09.2015 passed by the
Sessions Judge -cum- Special Judge, Sundargarh in Sessions
Trial No. 114 of 2013.
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Baman Charan Munda ....... Appellant
-Versus-
State of Odisha ....... Respondent
CRLA No.529 of 2015
Patra @ Pabitra Mahakud ....... Appellant
-Versus-
State of Odisha ....... Respondent
CRLA No.19 of 2016
1. Arjun Singh
2. Siba Singh ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellants: - Mr.Sahasransu Sourav
(in all the cases) Advocate
For Respondent: - Mr. Manoranjan Mishra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 21.07.2022 Date of Judgment: 16.08.2022
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S.K. SAHOO, J. JCRLA No.74 of 2015 was registered on the basis of
the prisoner's petition received from the appellants Arjun Singh,
Baman Charan Munda and Siba Singh, which was admitted on
20.02.2017. Since the appellants Arjun Singh and Siba Singh
filed a separate appeal, i.e. CRLA No.19 of 2016, as per the
submission made by the learned counsel for the appellants,
JCRLA No.74 of 2015 was confined only with respect to the
appellant Baman Charan Munda as per order dated 28.03.2022.
CRLA No.529 of 2015 filed by the appellant Patra @
Pabitra Mahakud was presented before this Court on 28.10.2015
and admitted on 29.07.2016.
CRLA No.19 of 2016 filed by the appellants Arjun
Singh and Siba Singh was presented before this Court on
05.01.2016 and admitted on 03.08.2016.
2. All the appellants faced trial in the Court of learned
Sessions Judge -cum- Special Judge, Sundargarh in Sessions
Trial No.114 of 2013 for offences punishable under sections 376-
D/506/34 of the Indian Penal Code and section 3(1)(xi) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Page 2 of 26
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Act, 1989 (hereafter 'S.C. & S.T. (PoA) Act') on the accusation
that on 27.02.2013 at about 2.00 p.m. they forcibly committed
rape on the victim 'MM' inside Silikata jungle near village
Kaunala and criminal intimidation by threatening the victim who
was a member of Scheduled Tribe.
Learned trial Court vide impugned judgment and
order dated 24.09.2015 though acquitted all the appellants of
the charge under section 3(1)(xi) of the S.C. & S.T. (PoA) Act,
but found them guilty under sections 376-D/506/34 of the Indian
Penal Code and sentenced each of them to undergo rigorous
imprisonment for twenty years and to pay a fine of Rs.10,000/-
(rupees ten thousand) each, in default, to undergo further
rigorous imprisonment for two years each for the offence under
section 376-D of the Indian Penal Code and to undergo rigorous
imprisonment for two years each and to pay a fine of Rs.2,000/-
(rupees two thousand) each, in default, to undergo further
rigorous imprisonment for three months each for the offence
under section 506/34 of the Indian Penal Code and both the
sentences were directed to run consecutively.
3. The prosecution case, as per the F.I.R. (Ext.10)
lodged by the victim (P.W.5) on 01.03.2013, in short, is that on
27.02.2013 she was returning home from village Bhaludunguri
and she got down at Gurundia bus stand and proceeding on foot
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towards her village Tumbei and at about 2.00 p.m., while she
was passing near a rivulet, locally known as 'Kaunala' running by
the side of Silikata village jungle road, four youths of her village,
who were coming from the side of her village towards Gurundia,
suddenly intercepted her way noticing her alone. They started
physically manhandling her. The victim shouted, but there was
no one nearby to respond to her shouting and thereafter, out of
the four appellants, appellant Patra @ Pabitra Mahakud (in CRLA
No.529 of 2015) dragged her to the road side jungle holding her
hands while the rest of the three appellants pushed her in the
same direction. Inside the jungle, the appellant Patra @ Pabitra
Mahakud forcibly raped her first and then the appellant Baman
Charan Munda (in JCRLA No.74 of 2015) followed by appellant
Siba Singh (appellant no.2 in CRLA No.19 of 2016) and appellant
Arjun Singh (appellant no.1 in CRLA No.19 of 2016) raped her
one after another. After committing rape on her, the appellants
also threatened her not to disclose about the occurrence before
anybody or else she and her husband would be killed. The victim
sustained injuries on different parts of her body and about one
hour after the occurrence, she proceeded towards her village
after taking some water from the house of Muktu Bhumij
(P.W.15). Thereafter, somehow or other the victim managed to
reach her village and ultimately in her house. Immediately, she
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could not disclose about the incident before anybody, but
subsequently, she informed everything to her husband Dambaru
Munda (P.W.6), who on 01.03.2013 brought her to Gurundia
police station. At Gurundia police station, the victim reported the
matter orally before S.K. Mallick, S.I. of the police station, who
reduced her version into writing, which was treated as F.I.R. and
Gurundia P.S. Case No.04 of 2013 was registered under sections
376-D/506/34 of the Indian Penal Code and section 3(1)(xi) of
the S.C. & S.T. (PoA) Act. As one of the offences i.e. under
section 3(1)(xi) of the S.C. & S.T. (PoA) Act was there, the then
S.D.P.O., Bonai, Sri A.K. Panda (P.W.17) took up investigation of
the case, examined the victim as well as her husband at the
police station and recorded their statements, sent the victim for
medical examination on police requisition, visited the spot,
visited the village of the victim and examined the witnesses.
During course of investigation, P.W.17 arrested the appellants
Baman Charan Munda, Patra@ Pabitra Mahakud and Arjun Singh
and thereafter, he also arrested the appellant Siba Singh on
23.05.2013 and forwarded all the appellants to judicial custody.
P.W.17 made various seizures, examined other material
witnesses, sent requisition to the concerned Tahasildar for issue
of caste particulars of the victim as well as the appellants and on
completion of investigation, he submitted charge sheet on
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23.05.2013 against all the appellants under sections 376-
D/506/34 of the Indian Penal Code and section 3(1)(xi) of the
S.C. & S.T. (PoA) Act.
4. After submission of charge sheet, the case was
committed to the Court of Session following due formalities,
where the learned trial Court framed charges against the
appellants on 20.03.2014 and since the appellants refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
trial procedure was resorted to prove the guilt of the appellants.
5. During course of trial, in order to prove its case, the
prosecution examined as many as seventeen witnesses.
P.W.1 Moris Soren, who was the police constable
attached to Gurundia police station, is a witness to the seizure of
biological samples of the appellant Siba Singh as per seizure list
Ext.1.
P.W.2 Topi Chandra Patra and P.W.8 Jaspin Jate, who
were the Home guards and P.W.12 Chakradhar Bag, the then
police Havildar attached to Gurundia police station, are the
witnesses to the seizure of biological samples of the victim as per
seizure list Ext.2.
P.W.3 Krushna Mahakud, who was the Home guard
and P.W.13 Bella Ekka, who was the Grama Rakhi attached to
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Gurundia police station, are the witnesses to the seizure of
wearing apparels of the victim as per seizure list Ext.3.
P.W.4 Chittaranjan Bag and P.W.9 Chamara Xalxo,
who were the Home guards attached to Gurundia police station,
are the witnesses to the seizure of biological samples of the
appellants as per seizure list Ext.4 and the wearing apparels of
the appellant Patra @ Pabitra Mahakud as per seizure list Ext.5.
P.W.5 is the victim, who is also the informant in the
case and she narrated about the incident as to how the
appellants ravished her.
P.W.6 Dambaru Munda is the husband of the victim,
who stated about the disclosure made by the victim about the
occurrence before him and then he proceeded to Gurundia police
station with the victim to lodge the first information report.
P.W.7 Mathias Munda was the Grama Rakhi attached
to Gurundia police station who came to know from the victim
that on account of rape case instituted by her, the appellants
were arrested.
P.W.10 Manbodh Munda, who is the father-in-law of
the victim (P.W.5), is a post occurrence witness.
P.W.11 Sabita Patra, who is the sister-in-law of the
victim (P.W.5) being husband's sister, stated that the victim had
been to her house on 25.02.2013 and left her house on
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27.02.2013 and after some days, P.W.6 informed her about the
occurrence.
P.W.14 Gangay Ekka, who was the Home Guard
attached to Gurundia police station, is a witness to the seizure of
personal belongings of the appellants Arjun Singh, Baman Munda
and Siba Singh as per seizure lists Exts.6, 7 and 8 respectively.
P.W.15 Muktu Bhumij, who is an independent
witness, did not support the prosecution case, for which he was
declared hostile.
P.W.16 Dr. Jayashree Ketan Mohapatra was the
Medical Officer of C.H.C., Gurundia, who examined the victim on
police requisition and submitted her report as per Ext.9.
P.W.17 Amaresh Kumar Panda, the S.D.P.O., Bonai
was the Investigating Officer of the case, who on completion of
investigation submitted charge sheet against the appellants.
The prosecution exhibited fourteen numbers of
documents. Exts.1 to 8 are the seizure lists, Ext.9 is the
requisition for medical examination of the victim, Ext.10 is the
formal F.I.R., Ext.11 is the topography of the spot, Ext.12 is the
office copy of letter No.528 dated 27.04.2013 of Tahasildar,
Gurundia indicating the caste of the victim, Ext.13 is the letter
No.529 dated 27.04.2013 of Tahasildar, Gurundia indicating the
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caste of the appellants and Ext.14 is the forwarding report of
S.D.J.M., Bonai for chemical analysis.
6. The defence plea was one of denial and false
implication in the case due to land dispute. The main plea of the
defence is that the appellant Baman Charan Munda was the
Chairman of the local V.S.S. Centre, Tumbei. The family
members of the victim had constructed their house encroaching
upon some land of the said V.S.S. Centre area and when the
appellant Baman Munda along with other appellants approached
the victim to vacate the encroached area, the victim instead of
vacating the same used to threaten them to pay off the scores.
For such dispute between the parties, the family of the victim
had bore grudge against the appellants and ultimately, a false
case has been foisted against them.
D.W.1 Hemanta Kumar Singh is a co-villager of
P.W.5 so also the appellants who stated that the victim had
encroached upon and amalgamated some portions of land from
V.S.S. Centre into her homestead area and the appellants were
the members of the said Centre and there was dispute between
them. He further stated that on the date of alleged incident, the
appellants were working in the thrashing floor of the appellant
Arjun Singh.
Page 9 of 26
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7. The learned trial Court after assessing the evidence
on record, came to hold that the prosecution has not been able
to prove its case under section 3(1)(xi) of the S.C. & S.T. (PoA)
Act. It was further held that the testimony of P.W.5 vis-à-vis the
medical evidence provides sufficient credence to the allegation of
the prosecution and nothing improbable or impeachable could be
found in the testimony of P.W.5 as well as her husband (P.W.6)
and accordingly, it was held that on the date of occurrence, the
appellants had conjointly sexually assaulted the victim (P.W.5)
near Kaunala rivulet and the very conduct of the appellants
reflects that at the relevant time, they had attacked with
common intention to sexually assault the victim for which all the
appellants were held guilty for the offence under section 376-D
of the Indian Penal Code. With regard to the charge of criminal
intimidation, it was held that the version of P.W.5 is quite
believable and trustworthy and the appellant Baman Munda had
threatened the victim after she was sexually assaulted by the
appellants. It was further held that though only appellant Baman
Munda had pressed her neck and threatened her, but since the
appellants have sexually ravished her one after another having
acted in consort with common intention, therefore, the above
threat of appellant Baman Munda would cover the misdeed of all
the appellants towards their common intention. It was held that
Page 10 of 26
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all the appellants are liable for criminal intimidation causing
alarm to P.W.5 whereby she was desisted to take immediate
steps against them and accordingly, they were held guilty for the
offence under section 506 Part II of the Indian Penal Code.
8. Mr. Sahasransu Sourav, learned counsel appearing
for the appellants contended that the prosecutrix changed her
version during her examination in Court relating to what
happened prior to the actual commission of rape on her that she
had narrated in the F.I.R. and her narration is different in the
F.I.R. and 161 Cr.P.C. statement in comparison to her deposition
in Court. It is further contended that in the F.I.R. and 161
Cr.P.C. statement, the victim alleged that she was pulled by one
of the appellants and pushed by the other appellants to the spot
whereas in her deposition, she stated that she was virtually lifted
by the appellants to the spot. Learned counsel further contended
that the date on which the victim stated to have narrated the
incident before her husband (P.W.6) in the F.I.R. and her
deposition in Court is quite contradictory to each other. There
are inconsistencies in the statement of the prosecutrix and she is
not a witness of sterling quality and there is no material
corroboration to her evidence. Learned counsel further
contended that P.W.15 is a post-occurrence witness and his
evidence does not corroborate with the evidence of the victim
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with regard to taking water by the victim in his house. This
creates a doubt in relation to her story in that respect and in
view of section 6 of the Evidence Act, the same is a relevant fact
as res gestae. It is argued that the medical evidence does not
support the case of the prosecutrix as there was no sign of
recent sexual intercourse as per the evidence of the doctor
(P.W.16). He further argued that the I.O. has stated that there
were no clues at the spot whereas the prosecutrix has stated
that her wearing apparels were stained with mud which shows
that the place was muddy and in such a situation, there should
have been marks of violence at the spot. It was argued that the
victim's wearing apparels were seized and those were sent for
chemical examination but the prosecution having failed to prove
the Chemical Examination Report, the truthfulness of the
prosecution case is doubted. It is further argued that the victim
admitted her previous land dispute with the appellants and on
account of delayed lodging of the first information report, the
chance of false implication of the appellants and concoction of
the case cannot be ruled out and therefore, it is a fit case where
benefit of doubt should be extended in favour of the appellants.
Reliance was placed on the decisions of the Hon'ble Supreme
Court in the cases of Krishan Kumar Malik -Vrs.- State Of
Haryana reported in (2011) 49 Orissa Criminal Reports
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(SC) 929, Rai Sandeep @ Deepu -Vrs.- State Of NCT of
Delhi reported in (2012) 53 Orissa Criminal Reports (SC)
286 and Raja and others -Vrs.- State of Karnataka
reported in (2016) 65 Orissa Criminal Reports (SC) 845.
Mr. Manoranjan Mishra, learned Addl. Standing
counsel for the State while supporting the impugned judgment
and the order of conviction contended that conviction can be
recorded on the sole testimony of the prosecutrix, if her evidence
inspires confidence and the learned trial Court rightly accepted
the evidence of the victim (P.W.5). It is further submitted that
the Court should examine the broader probabilities of a case and
not get swayed away by minor contradictions or insignificant
discrepancies in the statement of the victim, which is not fatal in
nature. The evidence of the victim is supported by her husband
(P.W.6) before whom she narrated the incident. He argued that
the doctor (P.W.16) has noticed multiple injuries on the victim
and stated that chance of intercourse could not be denied and
therefore, the appeals should be dismissed. Reliance was placed
on the decisions of the Hon'ble Supreme Court in the cases of
State of Himachal Pradesh -Vrs.- Raghubir Singh reported in
(1993) 2 Supreme Court Cases 622, State of Punjab -Vrs.-
Gurmit Singh and others reported in (1996) 2 Supreme
Court Cases 384 and Mukesh and another -Vrs.- State of
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NCT of Delhi and others reported in (2017) 6 Supreme
Court Cases 1.
9. Adverting to the contentions raised by the learned
counsel for the respective parties, let me discuss the evidence of
the star witness on behalf of the prosecution who is none else
than the victim (P.W.5) herself. She is the informant in the case
and she stated that she knew all the four appellants and the
occurrence took place on 27.02.2013 and at about 1.30 to 2.00
p.m. while she was returning home from the house of her sister-
in-law, she got down from the bus at Gurundia and started
walking on foot as there was no automobile communication to
her village. She further stated that the road was lonely and both
the sides of the road were jungle and while she was going, near
Kaunala, she saw the four appellants coming from the other side
and noticing her alone, all the appellants pounced upon her and
virtually lifted her and they took her to the side of Kaunala and
then one after another, the appellants committed rape on her.
After committing rape on her, she was threatened by appellant
Baman Charan Munda not to disclose about the occurrence
before anybody or else she would be killed. She further stated
that after all the appellants left the spot, she sat there almost
dumbfounded and after sometime, she could gather courage and
energy to return to her village and on the way, she took water
Page 14 of 26
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from the house of P.W.15 Muktu Bhumij. She stated that her
wearing apparels were stained with mud and after reaching the
house, she narrated the incident before her husband (P.W.6) and
then both of them went to lodge the first information report on
01.03.2013 whereafter she was sent for medical examination
and her wearing apparels were seized.
The learned counsel for the defence cross-examined
the victim at length but she withstood the test of cross-
examination. The learned counsel for the appellants contended
that the victim has admitted that on the way to her village after
the occurrence, she had not narrated about the occurrence
before anyone of the villages which fell on the way and even
P.W.15 has not supported that the victim had come to his house
to take water on the date of occurrence. P.W.15 has been
declared hostile by the prosecution and he has been put leading
questions by the learned Public Prosecutor under section 154 of
the Evidence Act. It is pertinent to note that the victim has
stated that after taking water in the house of P.W.15, she slowly
proceeded to her house and on being asked by P.W.15 about her
condition, in that state of body and mind, she could not gather
courage to say anything about the incident out of fear as she
was threatened.
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In my humble view, on account of physical, mental,
emotional and psychological trauma faced by the victim after the
occurrence, she would not have in a position to narrate before
each and everyone who came on her way and she must be trying
to reach her house as soon as possible and therefore, in the
factual scenario, non-disclosure of the incident before others
immediately after the occurrence, no way affects the credibility
of her evidence. Even though P.W.15 has not supported the
prosecution case that the victim came to his house to take
water, but the truthfulness of the version of the victim cannot be
doubted on that score. Of course, in the F.I.R., the victim stated
that one of the appellants pulled her towards jungle by holding
her hands and the other three appellants pushed her whereas in
her evidence, she stated that the appellants pounced upon her
and virtually lifted her but law is well settled that the evidence of
the prosecutrix should not be rejected on the basis of minor
discrepancies and contradictions. The Courts shoulder a great
responsibility while trying the accused charged of rape. Such
cases must be dealt with utmost sensitivity. The Court should
examine the broader probabilities of the case and not get
swayed away by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which are not
of a fatal nature to throw away otherwise reliable prosecution
Page 16 of 26
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case. If the evidence of prosecutrix inspires confidence, it must
be relied upon without seeking corroboration to 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. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the Court must be alive to its
responsibility and be sensitive while dealing with cases involving
sexual molestations or sexual assaults (Ref.: Gurmit Singh
(supra) and Mukesh and another (supra)).
The learned counsel for the appellants argued that
the victim admitted about her previous dispute with the
appellants in her cross-examination and she has stated that the
appellants along with other village members had raised V.S.S.
Centre building and Anganwadi Centre on Government land
covering some of her occupied land and therefore, the false
implication by the victim cannot be ruled out. In my humble view
as has been held in the case of Rajinder @ Raju -Vrs.- State
of Himachal Pradesh reported in (2009) 44 Orissa
Criminal Reports (SC) 140 that in the context of Indian
culture, a woman-victim of sexual aggression would rather suffer
silently than to falsely implicate somebody. Any statement of
rape is an extremely humiliating experience for a woman and
Page 17 of 26
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until she is a victim of sex crime, she would not blame anyone
but the real culprit. No self-respecting woman would put her
honour at stake by falsely alleging commission of rape on her
and therefore, a look for corroboration of her testimony is
unnecessary and uncalled for. Therefore, the contention of the
learned counsel for the appellants that on account of previous
dispute with the victim, the appellants have been falsely
entangled in the case is not acceptable.
The victim (P.W.5) stated that in the house, she
narrated the incident to her husband and her husband told her to
report the matter before the police and finally they came to
Gurundia police station on 01.03.2013 and orally reported the
incident before the police and she further stated that on
01.03.2013, it was a weekly market day at Gurundia and
therefore, the vehicles were plying on the road and the road was
busy for which they preferred to report the matter at the police
station on that day, as on the other days, there was no
automobile communication between her village and Gurundia.
P.W.6 also stated that the victim arrived at the house on
27.02.2013 at about 5.00 p.m. and by that time, she was in a
shattered condition having minor injuries on her back and elbows
and she was looking pale and exhausted and on his asking as to
how such condition happened to her, she disclosed that the
Page 18 of 26
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appellants raped her on the way forcibly despite her protest and
resistance. The conduct of P.W.5 in disclosing about the incident
before her husband (P.W.6) lends corroboration to her evidence
and it is admissible under section 6 of the Evidence Act as res
gestae. The explanation for delayed disclosure is acceptable.
Even though the victim stated in the F.I.R. that she disclosed
about the occurrence before her husband on 28.02.2013 and not
on the date of occurrence itself, in my humble view, the same
cannot be a ground to arrive at a conclusion that the appellants
have been falsely entangled in the case and that the case is a
concocted one. There are no such contradictions or discrepancies
regarding the prosecution case narrated in the first information
report and the statement of the victim (P.W.5) recorded under
section 161 Cr.P.C. vis-à-vis her evidence in Court during trial.
Even the victim's evidence is consistent about the sequence of
rape by each of the appellants. The contention of the learned
counsel for the appellants that in the F.I.R. and 161 Cr.P.C.
statement, the allegation of the victim that she was pulled by
one of the appellants and pushed by others to the spot where
rape was committed on her, whereas her evidence in Court that
the appellants pounced upon her and virtually lifted her to the
spot, in my humble view cannot be a ground to come to a finding
Page 19 of 26
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that these are major discrepancies, which create doubt on the
truthfulness of the version of the victim.
The victim stated in her evidence that the appellants
were more in number and they overpowered her for which her
resistance could not work and they ravished her one after
another by force and that her wearing apparels were stained
with mud. The saree and other wearing apparels of the victim
were seized during course of investigation and those were also
sent for chemical analysis but no Chemical Examination Report
has been proved in the case.
It is a usual feature that the preparation of chemical
and serological examination reports in the State Forensic Science
Laboratory and Regional Forensic Science Laboratories are
getting delayed mainly on the ground of lack of infrastructure so
also staff. Instances are there when assurance has been given by
none else than the learned Advocate General of the State to fill
up the vacant posts in the laboratories at an earliest and it is
expected that the State Government shall take adequate steps to
expedite it so that the reports of the laboratories reach at the
concerned Courts at an earliest for speedy disposal of the trial
cases. However, in the case in hand, even in absence of
Chemical Examination Report, since the evidence of the victim
and other circumstantial evidences are clinching against the
Page 20 of 26
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culpability of the appellants, the contention of the learned
counsel for the appellants that for the lack of C.E. Report, the
truthfulness of the prosecution case is affected is not acceptable.
The evidence of the I.O. (P.W.17) indicates that he
visited the spot and prepared the topography of the spot on the
crime detail form, which has been marked as Ext.11. The date
and time of visit to the place of occurrence has been mentioned
in the report as 01.03.2013 at 7.00 p.m. Of course, the I.O. has
stated that during his spot visit, he could not find any clues or
any foreign material there but it should not be forgotten that the
spot was visited two days after the occurrence and nobody
knows what changes might have happened at the spot or to the
weather in the meantime particularly when it was an open space
under the sky. The time of visit to the spot in the evening hours
is another feature which might not have made it possible for the
I.O. to mark everything clearly. Unless the spot is visited at an
earliest, properly guarded and preserved, it would be too difficult
to find any clues there.
The doctor (P.W.16) examined the victim on
01.03.2013 and he noticed abrasion on both the knees, multiple
abrasions on the back of the victim and abrasions on both the
elbows of the victim and the duration of the abrasions were forty
eight hours from the date of her examination. Though the doctor
Page 21 of 26
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has stated that there was no sign or symptom of recent sexual
intercourse but she has stated that chance of intercourse with
the victim cannot be denied. Therefore, the contention raised by
the learned counsel for the appellants that for lack of
corroboration from the medical evidence to the case of the
victim, benefit of doubt is to be extended to the appellants is not
acceptable.
Learned counsel for the appellants placed reliance in
the case of Krishan Kumar Mallik (supra), in which it has been
held that solitary evidence of the prosecutrix to bring home the
charge of abduction and commission of rape by the appellant
does not inspire confidence and is not of sterling quality for
which it is neither prudent nor safe to hold the appellant guilty of
the commission of the offences under sections 366 and
376(2)(g) of the Indian Penal Code. In the factual scenario, after
considering the evidence of the victim, the surrounding
circumstances and medical evidence, such observation was made
by the Hon'ble Supreme Court. In the case of Rai Sandeep @
Deepu (supra), reliance upon which was placed by the learned
counsel for the appellants, it was held that the sterling witness
should be of a very quality and caliber whose version should,
therefore, be unassailable. The Court considering the version of
such witness should be in a position to accept it for its face value
Page 22 of 26
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without any hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would be
relevant is the truthfulness of the statement made by such a
witness. What would be more relevant would be the consistency
of the statement right from the starting point till the end,
namely, at the time when the witness makes the initial
statement and ultimately before the Court. It should be natural
and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a
witness. The witness should be in a position to withstand the
cross-examination of any length and howsoever strenuous it may
be and under no circumstance should give room for any doubt as
to the factum of the occurrence, the persons involved, as well as,
the sequence of it. Such a version should have co-relation with
each and everyone of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as well as
Page 23 of 26
// 24 //
all other similar such tests to be applied, it can be held that such
a witness can be called as a 'sterling witness' whose version can
be accepted by the Court without any corroboration and based
on which the guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the crime
should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said
version in material particulars in order to enable the Court trying
the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the charge
alleged. In the case of Raja and others (supra), reliance upon
which was placed by the learned counsel for the appellants, it
was held the evidence of the prosecutrix must be examined as
that of an injured witness whose presence at the spot is probable
but it can never be presumed that her statement should always
without exception, be taken as gospel truth. The essence of this
verdict which has stood the test of time proclaims that though
generally the testimony of a victim of rape or non-consensual
physical assault ought to be accepted as true and unblemished,
it would still be subject to judicial scrutiny lest a casual, routine
and automatic acceptance thereof results in unwarranted
conviction of the person charged.
Page 24 of 26
// 25 //
After going through the factual scenario in the
aforesaid three cases relied upon by the learned counsel for the
appellants, I am of the humble view that the case in hand is
completely different and as held by the Hon'ble Supreme Court
in the case of Raghubir Singh (supra) that every case has to be
approached with realistic diversity basing on peculiar facts and
circumstances of that case. In my humble view, the evidence of
the victim (P.W.5) is of sterling quality and it is clear, cogent,
trustworthy, reliable and above board and it gets corroboration
from the evidence of P.W.6 and also the medical evidence to
some extent. The delay in lodging the first information report has
been explained and therefore, I am of the humble view that
there is no infirmity or illegality in the impugned judgment and
the learned trial Court has rightly found the appellants guilty
under sections 376-D and 506 of the Indian Penal Code. The
sentences passed under both the offences are also justified,
however, in my humble view since the offences were committed
in a single transaction, in the interest of justice, it would be
proper and legitimate to direct that both the sentences awarded
to the appellants under sections 376-D and 506 of the Indian
Penal Code to run concurrently instead of consecutively as held
by the learned trial Court.
Page 25 of 26
// 26 //
Subject to modification in the sentence, the Criminal
Appeals stand dismissed.
Before parting with the case, I would like to put on
record my deep appreciation to Mr. Sahasransu Sourav, learned
counsel who is very young but acted like an astute lawyer
fulfilling the expectation of the Bench from the Bar and has
prepared the case thoroughly with written notes of submission
and citations and for lending valuable assistance to this Court in
adjudicating the case.
The trial Court records with a copy of this judgment
be sent down to the learned trial Court forthwith for information.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 16th August, 2022/PKSahoo/RKM Page 26 of 26