Orissa High Court
State Of Orissa vs Tuduja Digal on 20 April, 2007
Equivalent citations: 104(2007)CLT366, 2008 CRI. L. J. (NOC) 1224 (ORI.), 2009 (1) AJHAR (NOC) 217 (ORI.)
Author: I.M. Quddusi
Bench: I.M. Quddusi
JUDGMENT I.M. Quddusi, J.
1. This Government Appeal has been filed against the Judgment/ Order dated 20th March, 1993 passed by the District & Sessions Judge, Phulbani in S.T. No. 57 of 1992 acquitting the Respondent of the charge under Section 376 of the Indian Penal Code.
2. Prosecution case, in short, is that on 21.1.1992 at about 4 PM Chhanaki Digal had gone to Dharanipada jungle near village Dimiriguda to collect twigs and Siali leaves. While she was engaged in collecting twigs and siali leaves, the Appellant arrived there, forcibly laid Chhanki down on the ground and committed rape on her. The Appellant threatened the victim to take away her life and the life of her husband if she would disclose the incident to anybody. Out of fear, the victim did not disclose the incident to any outsider but intimated the said fact to her husband. After hearing the incident from the victim, her husband wanted to enquire the said fact from the Appellant, but his elder brother prevented him to do so out of fear as the family members of the Appellant were more in number compared to the victim's family. Therefore, he waited till arrival of his younger brother who had gone to a relation's house. After his arrival, complaint was lodged with the Shastriji Jubak Sangha which convened a meeting but as the Appellant did not obey the decision of the Jubak Sangha, the FIR was lodged before the Officer-in-charge of Phiringia Police station 30.1.1992. Police after investigation submitted charges-sheet against the accused.
3. The plea of the accused was one of complete denial. His further plea was that since there was a land dispute between himself and P.W. 3, the latter has foisted this case to feed fat his previous grudge.
4. To bring home the ctiarge to the Appellant, prosecution examined as many as ten witness out of whom P.W. 1 is the victim herself, P.W. 2 is the Secretary of the Jubak Sangh who scribed the FIR, P.W. 3 is the informant, P.W. 4 is the doctor who examined the victim,, P.W. 7 is the doctor who examined the vaginal swab of the victim, P.W.8 is the Radiologist, PS. 9 is the doctor who examined the Appellant, P.W.5 is a seizure witness who has been declared hostile by the prosecution and P.W. 6 is the brother of the informant. The I.O. has been examined as P.W. 10. No witness was examined by the Appellant in his defence.
5. The Learned Sessions Judge on consideration of the evidence on record came to hold that the prosecution has failed to prove the case against the Appellant. Absence of any injury on the body or breast of the victim and the delay in lodging the FIR weighed very much with the Learned Sessions Judge to come to the aforesaid finding.
6. I have gone through the evidence of the prosecution witnesses. It appears from the evidence of the victim P.W. 1 that while she was collecting twigs and siali leaves in the jungle, the Appellant came, laid her down on the ground and committed sexual intercourse with her. From her evidence it does not appear that she resisted the Appellant in any manner. Further, it appears from her evidence that she did not disclose the matter to any body except her husband. The FIR was lodged after nine days of the, occurrence. The explanation furnished by the prosecution for such delay does not appear to be plausible. It is quite unnatural for a rape victim to wait for arrival of the younger brother of her husband when her husband was very much present and thereafter make a complaint before the Jubak Sangh, which has no authority to punish the offender. This is against the normal human conduct. The medical evidence also does not support the case of the prosecution. The doctor, P.W. 4 who examined the victim found no injury on the body of the victim except one old tear in her hymen and P.W. 7 who examined the vaginal swab found only dead spermatozoa. The victim was a married lady used to sexual intercourse and presence of old tear in her hymen and spermatozoa in the vaginal swab are quite natural. It appears from the evidence of the victim that the Appellant is the cousin brother of her husband being the son of the elder brother of the father of her husband. The Appellant in his statement under Section 313 Cr.P.C. has stated that due to land dispute with the husband of the victim, false case has been foisted against him. The victim in her evidence has stated that "it is not a fact that out of land dispute between the accused and my husband and at the instance of my husband I foisted this false case against the accused". In such view of the matter the Learned Sessions Judge has held that the prosecution has failed to prove its case beyond all reasonable doubt.
7. I do not find any infirmity or illegality in the order of the Learned Sessions Judge. There is, therefore, no merit in this government appeal, which is accordingly dismissed.