Orissa High Court
Dina Alias Dinabandhu Pradhan And ... vs State Of Orissa on 4 January, 2018
Equivalent citations: AIRONLINE 2018 ORI 109
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL No. 263 Of 1991
An appeal under section 374(2) of the Code of Criminal
Procedure from the judgment dated 30.09.1991 passed by the
Addl. Sessions Judge, Sambalpur in Sessions Trial No.47/21 of
1991.
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Dina @ Dinabandhu
Pradhan and Another ......... Appellants
-Versus-
State of Orissa ......... Respondent
For Appellants: - Mr. Bijaya Kumar Ragada
For Respondent: - Mr. Priyabrata Tripathy
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 and Judgment: 04.01.2018
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S. K. SAHOO, J.The appellants Dina @ Dinabandhu Pradhan and Kapi @ Kapila Pradhan faced trial in the Court learned Addl. Sessions Judge, Sambalpur in Sessions Trial No. 47/21 of 1991 for offence punishable under sections 376/34 of the Indian Penal Code on 2 the accusation that on 04.10.1990 at about 12 noon at Ganjermal forest, they committed rape on the victim (P.W.1) in furtherance of their common intention.
The learned trial Court found the appellants guilty under section 354 of the Indian Penal Code and accordingly convicted thereunder imposing sentence on each of them to suffer rigorous imprisonment for a period of two years.
2. The prosecution case, in short, is that on 04.10.1990 the victim had been to tend cattle towards the river side where both the appellants were also tending cattle at a nearby place. At about 12 noon, the appellant Dinabandhu came near the victim and told her to allow him to enjoy with her for some time to which the victim refused. Then the appellant Dinabandhu dragged the victim by holding her hand to a low lying land by the side of the river. The victim protested and struggled to escape but the appellant Dinabandhu fouled her as a result of which she fell down on the ground. When the victim raised alarm, the appellant Kapila caught hold of her hand and told her not to shout and shut her mouth by means of Saree which the victim was wearing. The appellant Dinabandhu first committed rape on the victim and then the appellant Kapila also committed rape on the victim. After committing rape, both the appellants left the 3 spot and the victim returned back to her home and narrated the incident before her mother (P.W.2). The victim and her mother approached the Ward member of the village namely Biranchi Pradhan (P.W.3) and told him about the incident. A meeting was convened in the village and the village gentlemen attended the meeting but since most of the villagers had consumed liquor, the meeting could not be held on that day. After a few days, the meeting was again held but the appellants did not attend the meeting. The gentlemen imposed a fine of Rs.300/- on the appellants. The appellants paid the fine amount to the gentlemen but they did not give such amount to the victim for which on 27.10.1990 the victim went to Katarbaga police station and orally reported the matter before the officer in charge of the police station namely Abhiram Kar (P.W.7) which was reduced to writing, on the basis of which Katarbaga P.S. Case No. 94 of 1990 was registered under sections 376/34 of the Indian Penal Code.
P.W.7 took up investigation of the case. He examined the victim and her mother and recorded their statements, visited the spot and seized the broken pieces of bangles under seizure list Ext.1/2. He examined the other witnesses, arrested the appellants and forwarded them to Court on 29.10.1990. The 4 victim girl was sent for medical examination. The Investigating Officer made certain query to the Medical Officer, Sambalpur. He received the medical examination report of the victim as well as of the appellants. On completion of investigation, charge sheet was submitted on 23.01.1991 under sections 376/34 IPC.
3. The defence plea of the appellant Kapi @ Kapila Pradhan is that there was a marriage proposal between him and the victim and since he did not agree to marry the victim suspecting her character, a false case has been foisted against him.
The defence plea of appellant Dina @Dinabandhu Pradhan is one of denial.
4. After filing of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure and it was transferred to the learned trial Court where charge under sections 376/34 of the Indian Penal Code was framed on 09.05.1991. Since the appellants refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.
5. In order to prove its case, the prosecution examined seven witnesses.
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P.W.1 is the victim. She is the informant in the case. P.W.2 Gharamani Bag is the mother of the victim and she stated about the disclosure made by the victim on the date of occurrence relating to commission of rape on her by both the appellants and also about the meeting held in that connection.
P.W.3 Biranchi Pradhan and P.W.4 Sambhulal Pradhan did not support the prosecution case for which they were declared hostile.
P.W.5 Biranchi Narayan Padhi was the Medical Officer, Circle Jail, Sambalpur who examined both the appellants and found them capable of committing sexual intercourse but did not find any mark of injury on their private parts. He proved the medical examination reports vide Exts. 2 & 3.
P.W.6 Dr. Geetanjali Rath was the lady Asst.
Surgeon, Sambalpur Headquarters Hospital and she examined the victim and proved her report Ext.4. She also answered to the query made by the Investigating Officer and the query report has been marked as Ext.7 P.W.7 Abhiram Kar was the officer in charge of Katarabagh Police Station who is the Investigating Officer.
The prosecution exhibited ten documents. Ext.1/2 is the seizure list, Exts. 2 & 3 are the medical examination reports 6 of the appellants, Ext.4 is the medical examination report of the victim, Ext.5 is the report of the pathologist, Ext.6 is the report of the radiologist, Ext.7 is the query report of P.W.6, Ext.8 is the first information report, Ext.9 is the statement of P.W.3 before the Investigating Officer and Ext.10 is the statement of P.W.4 before the Investigating Officer.
The prosecution also proved the broken bangles as M.O.I.
6. The learned trial Court after analysing all the evidence on record has been pleased to hold that since the victim had stated that she was in a cross legged position at the time of occurrence and continued to be lying in such position, it ruled out the possibility of the victim being raped. It was further held that the age of the victim on the date of occurrence was more than 18 years and the conduct of the victim in coming to her house and narrating the incident before her mother rules out the possibility of consent of the victim for the occurrence. It was further held that the absence of any injury on the person and private part of the victim cannot be used to discredit her testimony particularly when she was examined after a long lapse of time. The learned trial Court further held that the delay in lodging the first information report has been properly explained. 7
7. Mr. Bijaya Kumar Ragada, learned counsel appearing for the appellants contended that the occurrence in question took place on 04.10.1990 and the first information report was lodged on 27.10.1990 which was more than three weeks after the alleged occurrence and delay in lodging the first information report has not been satisfactorily explained and therefore, the possibility of an exaggerated or concocted story being put forth by the prosecution cannot be ruled out. It is further contended that when the learned trial Court has disbelieved the commission of the major offence i.e. under section 376 of the Indian Penal Code, the conviction of the appellants under section 354 of the Indian Penal Code basing on the self same evidence is not justified. It is further contended that even if this Court upholds the conviction of the appellants under section 354 of the Indian Penal Code, since during investigation as well as during pendency of the appeal, the appellants have remained in custody for a substantial period, the sentence be reduced to the period already undergone.
Mr. Priyabrata Tripathy, learned Addl. Standing Counsel on the other hand supported the impugned judgment and contended that the delay in lodging the first information report in a case of this nature is not fatal to the prosecution and 8 moreover the victim and her mother have stated as to how they reported the matter before the Ward member and the meetings were convened in the village on two occasions and how the fine amount which was imposed by the gentlemen was not paid to the victim for which the first information report was lodged and therefore, the delay, if any, has been satisfactorily explained. The learned counsel for the State further contended that the conduct of the appellants at the time of the occurrence clearly makes out the ingredients of the offence under section 354 of the Indian Penal Code and the sentence which has been imposed cannot be said to be excessive in the facts and circumstances of the case and therefore, no interference is called for.
8. Charge has been framed against the appellants under sections 376/34 of the Indian Penal Code. When it is the prosecution case that both the appellants committed rape on the victim on 04.10.1990 in furtherance of their common intention, charge should have been framed under section 376(2)(g) of the Indian Penal Code which deals with 'gang rape'.
In case of Ashok Kumar -Vrs.- State of Haryana reported in A.I.R. 2003 S.C. 777, it is held as follows:-
8. Charge against the appellant is under Section 376(2)(g) IPC. In order to establish an offence under Section 376(2)(g) IPC, read with 9 Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offer. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence."
In case of Hanuman Prasad and Ors. -Vrs.- State of Rajasthan reported in (2009) 42 Orissa Criminal Reports 284, it is held as follows:-
"7. The important expression to attract Section 376(2)(g) is `common intention'. The essence of the liability in terms of Section 376(2) is the 10 existence of common intention. In animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC have clear application. In order to bring in the concept of common intention, it is to be established that there was simultaneously consensus of the minds of the persons participating in the act to bring about a particular result. Common intention is not the same or similar intention. It presupposes a prior meeting and pre-arranged plan. In other words, there must be a prior meeting of minds. It is not necessary that pre-concert in the sense of a distinct previous plan is necessary to be proved.
The common intention to bring about a particular result may well develop on the spot as between a number of persons which has to be gauzed on the facts and circumstances of each case."
Section 376(1) of the Indian Penal Code prescribes punishment for rape which shall not be less than seven years but which may extend to ten years or which may be for life and shall also be liable to fine. Section 376(2) of the Indian Penal Code on the other hand makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to 'gang rape'. The minimum punishment prescribed for such offence is ten years which may be for life and the 11 accused shall also be liable to fine. This is how the words "except in the cases provided for by sub-section (2)" occur in section 376(1) of the Indian Penal Code. The Explanation 1 to section 376(2) of I.P.C. indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed 'gang rape'. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one member of the group in furtherance of the common intention has committed rape. Therefore, in a case of gang rape, the proof of completed act of rape by each of the accused on the victim is not required. Once it is established that accused persons who are two or more in number had acted in concert and thereafter, the victim was actually raped by one of them then all of them can be prosecuted and even held guilty for 'gang rape'. Therefore, charge should have been appropriately framed under section 376(2)(g) of the Indian Penal Code.
9. Coming to the evidence of the victim, she has narrated the incident in detail. She has stated in her chief examination that the appellant Dinabandhu dragged her by holding her hand and took her to a low lying land by the side of the river and when she protested and struggled to escape, 12 appellant Dinabandhu fouled her for which she fell down and then she raised alarm. Then the appellant Kapila caught hold of her hand and asked her not to shout and shut her mouth by the edge of her Saree. She has further stated that the appellant Dinabandhu opened his half pant and pulled her saree and saya up to her waist and then committed sexual intercourse with her and thereafter, the appellant Kapila also committed sexual intercourse with her and at that time the appellant Dinabandhu was holding her head and gagging her mouth for which she could not raise an alarm. In the cross-examination, the victim has stated that when the appellant Dinabandhu came towards her while she was tending cattle, she did not suspect his movement. She further stated that the appellant Dinabandhu physically lifted her by keeping her on his shoulder and then threw her at the spot where she was ravished. She further stated that she made an attempt to runaway but the appellant Dinabandhu pounced upon her and at that point of time, she struggled to escape herself but the appellant Dinabandhu opened his pant and appellant Kapila caught hold of her hands. She has further stated that appellant Kapila caught hold of her right hand by his right hand and her left hand by his left hand but neither of the appellants caught hold of her legs and that she was struggling by 13 her legs. The victim has further stated in the cross-examination that when appellant Dinabandhu opened his pant, she could know that he would have sexual intercourse with her, so at that time she crossed both of her legs. She further stated that when appellant Dinabandhu came to penetrate his penis into her vagina, she tightened her legs and stifled her vagina. She further stated that till both the appellants finished their sexual intercourse with her, she was lying in a crossed legged position. She further stated that neither the appellant Kapila nor the appellant Dinabandhu squeezed her breast and none of them touched her breast nor gave kisses on her cheek nor snatched her blouse. The learned trial Court held that the position in which the victim was lying at the time of occurrence rules out the possibility of her being raped and accordingly, the offence of rape was disbelieved. It appears from the evidence that the victim was aged about twenty years at the time of occurrence and even though according to her evidence, her hands were caught hold of by one of the accused while the other was committing rape on her but it is apparent that none of the accused was holding her legs and in order to prevent sexual intercourse by the appellants, she not only crossed both her legs but also tightened her legs and stifled her vagina and she was in such a position till end. She 14 has not stated that any of the appellants tried to separate her legs to commit sexual intercourse.
The victim has stated that after the appellant Kapila had sexual intercourse with her, he cleaned his semen by her saya from her private part as well as from his private part and the semen fell on her saree and saya. The victim has further stated that he showed her saree, saya and kacha to her mother and so also to the Ward member and she kept those saree, saya and kacha in her house to show it to the police, if necessary. The wearing apparels of the victim girl were neither seized nor sent for chemical analysis.
10. So far as the delay in lodging the first information report is concerned, it appears that immediately after the occurrence, the victim came to her house and narrated the incident before her mother and both of them went to the Ward member and disclosed about the occurrence. The ward member who has been examined as P.W.3 has not supported the prosecution case. The victim and her mother have stated that a meeting was convened in the village on the date of occurrence but no decision could be taken and four days thereafter, another meeting was held and even though the appellants did not attend that meeting but their fathers attended the meeting and the 15 panchayat imposed a fine of Rs.300/- on the appellants. It is further stated by the victim and her mother that the panchayat members realized the fine amount of Rs.300/- from the appellants but refused to give that money to the victim and accordingly, the first information report was lodged. In view of the nature of accusation and the statements of the victim and her mother regarding convening of meeting in the village on two occasions to decide the matter, imposition of fine on the appellants, non-payment of fine to the victim, I am of the view that the delay in lodging the first information report has been satisfactorily explained. Merely because P.W.3 has not supported the prosecution case, the entire prosecution case cannot be disbelieved.
11. The doctor who had examined the victim on 06.11.1990 which is a month after the incident has stated that the hymen of the victim was ruptured and there was an old tear in her hymen and she found no other injury present in her private part or other parts of the body. The ossification test was conducted and the doctor opined that the probable age of the victim would be above eighteen and below twenty years. The doctor gave her opinion that the old tear mark which was found in the hymen of the victim was due to sexual intercourse. 16 However in the cross-examination, she has stated that once the tear in the hymen is healed up, it is not possible to say, the exact time or as to how many days back there was tear. She further stated that in absence of dead or alive spermatozoa, it cannot be said definitely whether there was sexual intercourse or not. The vaginal swab of the victim was examined and the report vide Ext.5 indicates that no living or dead spermatozoa was present. Therefore, not only there is delay in the medical examination of the victim but also the medical examination report no way helps the prosecution.
12. Coming to the offence under section 354 of the Indian Penal Code, there are ample materials available on record to show that the appellants outraged the modesty of the victim. The essential ingredients of the offence under section 354 of the Indian Penal Code are that the assault must be to a woman or the accused must have used criminal force on the woman and such assault or criminal force must have been used on the woman intending thereby to outrage her modesty or having knowledge that her modesty will be outraged. The culpable intention of the accused is the crux of the matter and the reaction of the woman is also relevant. The manner in which the victim was dragged, lifted, stripped off her clothing and some 17 immoral act was committed with her in spite of her protest, even if the charge under section 376 of the Indian Penal Code is found to be not proved by the learned trial Court and neither the State of Odisha nor the victim has challenged the acquittal of the appellants of such offence but there are sufficient materials on record against the appellants for commission of offence under section 354 of the Indian Penal Code.
The learned trial Court has imposed the maximum punishment prescribed for such offence which is two years. The appellants were forwarded to Court on 29.10.1990 and they were released on bail by the learned trial Court on 27.04.1991. During pendency of the appeal before this Court, non-bailable warrant of arrest was issued against both the appellants and the learned trial Court was directed to execute the non-bailable warrant of arrest, by virtue of which the appellants were taken into custody on 11.05.2004 and they were released on bail by this Court on 26.06.2004. Therefore, it appears that the appellants have remained in custody in connection with this case for seven months and few days. The occurrence in question took place in the year 1990 and in the meantime more than twenty seven years have passed. Both the appellants were aged about twenty years when the crime was committed. Therefore, at this stage, it 18 would not be proper to send the appellants again to jail custody to serve out the remaining period of sentence.
13. In view of the foregoing discussions, while confirming the order of conviction of the appellants under section 354 Indian Penal Code, the sentence imposed by the learned trial Court is reduced to the period already undergone.
With the modification of the sentence, the Criminal Appeal stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 4th January, 2018/Kabita/Sukanta