Orissa High Court
Lingaraj Pallai vs State Of Orissa on 9 January, 1995
Equivalent citations: 1995(I)OLR380
JUDGMENT S.K. Mohanty, J.
1. The appellant stands convicted by the Assistant Sessions Judge, Puri, for the offences under Secs. 458 and 376. IPC with having committed house breaking during the night of 2-11-1991 and committing rape on PW 8, daughter of PW 9. He has been sentenced to undergo rigorous imprisonment for ten years on each count with the direction that the same shall run concurrently.
2. Prosecution story in brief was that at the relevant time PW 8 and her mother PW 9 were working in the cashew nut factory of PW 5 Bihari Palai in village Khandualpur within Bramhagiri Police Station and residing in the factory premises. On the night of 2-11-1991 they had slept inside their room by closing the door and shutting the same by means of a bamboo. The appellant after scaling over the wall of the factory pushed open the said door and entering their room gagged the mouth of PW 9 and after tying her hands by means of her saree, committed rape on PW 8, the informant.
3. Appellant took the plea of denial and contended that the case had been falsely foisted by aforesaid Bihari through his employees because of dispute with him.
4. Prosecution examined as many as 13 witnesses including aforesaid PWs5,8 and 9. PW2 Surama a co-worker of PW was residing in the adjoining room on the night in question and has been examined as a post-occurrence witness, PW 6 was working as Lady Assistant Surgeon at District Headquarters Hospital, Puri. PW 13 was serving as Assistant Professor, Forensic Medicine and Toxicology, S. C. B. Medical College, Cuttack. PWs 6 and 13 examined the victim girl PW 8 on 4-11-1991 and 13-11-1991 respectively. PW 11 was serving as Associate Professor in the Department of Forensic Medicine and toxicology, S.C.B. Medical College, Cuttack. He examined the accused on 12-12-1991. PW 12, the then Officer in-charge of Brahnagiri Police Station, registered the case' on the information lodged by PW 8 on 3-11-1991 at 11. 30 a. m. as per the F.I.R. Ext. 4 and on his direction the A.S.I. PW 10 took up investigation of the case. On 26-1-1992 PW 12 took charge of the case and ultimately submitted charge-sheet against the accused.
Appellant examined one witness in his defence.
5. Relying on the sworn testimony of PWs 2, 5, 8 and 9, the trial Court has found the appellant guilty for the aforesaid offences and passed the impugned judgment of conviction.
6. Mr. Y. Das for the appellant argued that the direct evidence of PWs 8 and 9 and the indirect evidence of PWs 2 and 5, besides being discrepant on material particulars, runs counter to the medical evidence and therefore, the appellant is entitled to an order of acquittal.
7. Before examining the aforesaid evidence, some salient facts may at the outset be noted. It is not denied that PWs 2, 8 and 9 ware serving in the cashewnut factory of PW 5 Bihari and were residing in specific rooms in a row inside the factory premises. The appellant has not taken the stand that he was not known to PWs 2, 8 and 9 prior to the alleged occurrence.
8. The evidence on record reveals that PW 8 and her mother PW 9 lived in one room and PW 2 was residing in the adjoining room. A mason named Jagannath Mistry and another mason were residing in the room adjoining the other side and on the night in question there as no electric light within the factory premises. It reveals from the evidence of PWs 8 and 9 that on the said night they slept inside their room at about 8 or 9 O'clock in the night by shutting the door and placing a bamboo stick close to the same as there was no chain or bolting arrangment and at about 3 O'clock the case incident took place.
PW 9 has stated that when they were sleeping, the bomboo stick fell down and somebody pushed open the door when she woke up. Then the appellant came near and pushing one end of her saree on her mouth in order to gag her, tied both her hinds by the other end of the saree. PW 9 than groaned whereupon her daughter PW 8 woke up and focused a torch, PW 9 then found the appellant to be the culprit and PW 8 called neighbours. But they could not come since their doors had been chained from outside. The appellant after gagging and lying PW 9, as above, pounced upon PW 8, forcibly made sexual Intercourse on her and threatening both PWs 8 and 9 to kill them if they disclosed the incident to anybody, went away. Thereafter PWs 8 and 9 came out of their room and opened the doors of Sursma and the two masons. They than proceeded to the house pf Bihari and repotted the includent before him. On his advice PWs 8 and 9 came back to their, room and met him again on the next morning. Thereafter they proceeded to Brahmagiri P.S. where the F.I.R. Ext, 4 was lodged by the victim girl PW 8 herself.
PW 8 has stated that at about 3 0' clock on hearing Gan Gan (groaning) sound, she woke up and focused her torch when the found the door of their room open and appellant trying to gag the mouth of her mother by putting a portion of her saree. Than the appellant tied the hands of her mother with another portion of that saree. Thereafter the appellant threatened PW 8 not to raise hulla, or else he would kill her. The appellant who was strong and stout, then pounced upon PW 8. forcibly made her lie on the ground and tried to unbutton her shirt. PW 8 tried to esape, but in vain. Then the appellant kissed on her cheek and neck and forcibly, lifting her saya tried to penetrate his penis inside her vagina when she requested the appellant not to ravish. The appellant however, did not listen and forcibly had intercourse with her for which she felt severe pain on her private part and abdomen. Then after completing the intercourse, the appellant left the room giving a threatening not to disclose to anybody.
9. PW 2 has stated that at about 3 O'clock in the night she woke up hearing the cry of PW 8 and wanted to go to her room as she told that the appellant had entered her room. But she could not come out as her door had been chained from outside. Then she called the mason Jagannath. But he also could not come out as his door had been similarly chained. Sometime thereafter PW 8 came out and unchained the doors of their rooms. PW 8 was then crying. PW 2 found her blouse torn and untied and saw the mouth of PW 9 gagged and both her hands tied. Then PW 8 tola her to have been raped by the appellant after he tied her mother and gagged her mouth.
10. During investigation the I. 0. seized the shirt M. 0. III and the Saya M.O. IV which PW 8 was wearing during the occurrence, on her production on 3-11-1991 as per the seizure list Ext 1. Then I.O. further seized the Lungi M.O I and the shirt M, O. II from appellant's house on 5-11-1991 under the seizure list Ext. 3. These M. Os. were sent to the District Forensic Science Laboratory, Puri and neither blood nor semen was detected thereon.
11. In crose-examination, PW 8 has stated that because of squeezing of her breast, bruises were caused and because of forcible penetration of the penis of the appellant into her vagina, she sustained bleeding injuries and she wiped out the blood by means of her Saya. She claimed to have shown her injuries on her private part to the doctors at Puri and Cuttack. But as revealed from the report from the District Forensic Science Laboratory, blood and semen stains were absent on the shirt M. O. Ill and Saya M. O. IV.
12. Now the evidence of the doctors may be referred to. PW 6 examined the victim girt on 4-11-1992, but could not detect any injury on her breast, private parts, cheek, thigh and back. She did not find the public hair matted or any semen. She, however, found the hymen of PW 9 ruptured and blood tinged discharge coming therefrom. She suspected such discharge to be due to menstrual period giving slightly. According to her, there was no recent aligns of intercourse and symptom of cohabitation. Simultaneously, however, she has stated that possibility of rape could not be ruled out.
The other doctor PW 13 on examination on 13-11-1991 found the hymen of PW 8 torn, margin of the torn areas comparatively congested with signs of inflammation. According to her; there was evidence of sexual intercourse within 7 to 10 days prior to her examination. It is thus found that the medical evidence of the two doctors do not substantially corroborate the story put forward by the victim girl that there was forcible sexual Intercourse on her on the aforesaid night. Basing on the medical evidence it was streneously argued, that the entire prosecution story must be thrown out disbelieving the sworn testimony of PWs 8 and 9. For the following reasons there seems to be some force in the submission that the allegation of rape is not proved. As already stated, the direct evidence of PWs 8 and 9 on this aspect dose not very much fit In with the medical evidence. Further, PW 8 herself has stated in cross-examinations that when the appellant attempted to penetrate his penis into her vagina, she crossed her lege and remained in that position till the appellant left her after finishing the work. It has been brought out from 'he doctor PW 13 that for penetration of the male organ into the vagina of the victim, separation of thighs of the victim is necessary. To the cross-examining lawyer, PW 8 could not say if the appellant had ejaculated soerm in her vagina. On the night of occurrence when PW 3 met PW 5. she did not disclose to have been raped. For this, however, she had assigned the reason 'shame' Considering the aforesaid facts and circumstances, the evidence of the prosecutrix. that the appellant penetrated his penis and had sexual intercourse with her cannot be accepted and therefore the appellant is entitled to acquittal from the charge of rape.
13. The matter does not end here and it Is now to be examined if on the materials on record, the appellant can be said to have committed any other offences provided in law and punished thereunder, even if the charge under Sec. 376, IPC fails. In law if an accused is charged under Sec. 376, IPC he can be convicted for the offence under Sec. 354, IPC or under Sec. 376 read with Sec. 511, IPC, in the former case because the offence besides being cognate is also minor and in the latter case as no prejudice is caused thereby. Now the distinction between an offence of indecent assault and attempt to comit rape is to be kept in mind. An indecent assault envisaged in Sec. 354, IPC arises upon proof of an intention or knowledge that the modesty of the woman will be outraged. Such an assault amounts to an offence of attempt to commit rape upon further proof that the accused was determined to have sexual intercourse with the woman at any cost.
14. Now the pointed question arises if the facts proved in the case justify conviction of the appellant for any of the aforesaid two offences. The prosecutrix has clearly stated that on the night in question after tying the hands of her mother and gagging her mouth, the appellant pounced upon her, forcibly made her lie on the ground, tried to unbutton her shirt, kissed her on her cheeks and neck and forcibly lifting her say a tried to penetrate his penis inside her vagina. If this evidence of the prosecutrix is believed, it is clearly established that the appellant committed the aforesaid acts with the strong determination to , commit rape on her at any cost. As already stated, the mother (PW 9) while corroborating the prosecutrix has stated that gagging her mouth and tying her, the appellant pounced upon PW 8. PW 2, the immediate neighbour, has stated that hearing the cry of PW 8; she woke up, but could not go out of her room as the door of the room had been chainedfrom outside. She, however, came out when PW 8 unchained it and then she saw PW 8 crying and her blouse torn and untied. PW 8 then told her about the misdeed by the appellant.
15. There is no reason to disbelieve the above sworn testimony of PWs 2, 3 and 9. The appellant has not taken the stand that he was not known to them prior to alleged occurrence. It is also not his case that they or any of them bore any personal grudge against the appellant. The appellant in his statement under Sec. 313 Cr PC contended that he has dispute with Bihari (PW 5) since long as he had filed several cases against him and it is he,. who has foisted this case setting up his men. There is no material on record in proof of such stand of the appellant. In this connection PW 5 Bihari denied that on his report police initiated a case against the family of the appellant. However, he has admitted to be member ,of a big family and that there are different criminal cases against the appellant filed by different relations of his family. Because of this, it cannot be said that PW 5 has foisted this case falsely against the appellant.
16. It has been brought out during cross-examination of PW 2, that the rooms where they (meaning-herself, PW 8 and PW 9 and the two masons)lived had one roof and the walls were half-built. It is further brought out that if one stands in his room, he will very well see what is happening in the other room. Basing on such evidence, it was argued that if the occurrence is true, then the two masons and PW 2 would have seen the incident from their rooms. It is in evidence that there was no electric light in that night. That being so, the two masons and PW 2 standing in their rooms could certainly not see what was happening in the room of PW 9. The two masons also could not be expected to get into the room of PW 9 by seeling over the half-built wall, because o1 darkness and the danger involved in case the offender was armed with deadly weapons. It is hard to believe that PW 8 an unmarried girl of 16 years would depose complete falsehood implicating the appellant adversely affecting herself.
17. On above analysis it is held that prosecution has successfully brought home the guilt of the appellant and the offence under Sec. 370 read with Sec. 611, IPC. Apparently appellant committed house-breaking by night by entering into the room of PWs 8 and 9 and has thereby committed the offence punishable under Sec. 457. IPC in the result, the conviction for the offence under Sec. 376, IPC is set aside and the appellant is ultimately convicted for the offences under. 457 and 376 read with Sec. 611, 1PC. He is sentenced to undergo rigorous imprisonment for one year for the offence under Sec. 457, IPC and three years for the, offence under Sec. 376 read with Sec. 511 IPC. The sentences shall run concurrently. The appeal is accordingly' dismissed with modifications as above.