Orissa High Court
Sanya Alias Sanyasi Challan Seth vs State Of Orissa on 28 January, 1993
Equivalent citations: 1993CRILJ2784
JUDGMENT D.M. Patnaik, J.
1. The appellant having been convicted for the offence punishable under Section 376, I.P.C. and sentenced to undergo R.I. for 7 years by the Sessions Judge, Phulbani assails the order of conviction.
2. The prosecution case is, on 29-7-1985 during day time the prosecutrix (P.W. 1) had been to the Tumudibandha weekly market under Kothagarh Police Station in the district of Phulbani. About 5 p.m. she returned from the market. While proceeding towards her village, on the way near a simili tree the appellant caught hold of her hands and dragged her aside, laid her down on the ground and committed rape in spite of her protest and resistance.
Reaching her mother's house, she narrated the incident to her mother. Though a panchayat was convened on the following day to which the appellant was called, he refused to attend. Thereafter, the matter was reported at the Tumudibandha Out-Post and alter investigation, chargesheet was submitted.
3. According to the appellant, the allegation was tendentious. He pleaded that he was to pay her a sum of Rs. 15/- towards the charges for tending cattle, but when she demanded the money and since the appellant expressed his inability to pay it immediately, she foisted this false case.
4. Mr. J.M. Das, learned counsel for the appellant strenuously urged that the prosecution has miserably failed to bring out a case of rape in the absence of the medical evidence.
Mr. Mishra, the learned standing Counsel on the other hand supported the finding of the trial Court. The rival contentions need examination.
5. I have gone through the judgment of the trial Court and the evidence on record. Because of the glaring inconsistencies in the prosecution case, 1 am of the view that the conviction cannot be sustained. The reasons being as follows :-
P.W. 1 is the prosecutrix P.W. 2 is the mother. P.W. 4 is her brother-in-law being the elder brother of her husband. Admittedly, P.W. 1 is a married lady and as is evident from her deposition her age at the relevant time was 28 years. The material part of her evidence before the court was as follows : -
She stated, on the date of occurrence she was returning from the market at 5 p.m. along with one Sureswar and P.W. 4, the appellant and some others. She found that by mistake she had left some articles in the weekly market and therefore keeping her bundle of articles in the Tumudibandha hospital, she returned to the market and again came back with Kerosene but found her packet missing. She could come to know from Sureswar that the appellant had taken them. She found the appellant near a river. She collected the articles from him and started going towards the village. Little thereafter she was suddenly caught hold by the appellant and thereafter she was forced to have sexual intercourse without her consent. After that she went to her mother where she narrated about the misdeed of the appellant. Her mother told the matter to the ward member. She further stated in the examination in chief to have sustained injury on her mouth and back side of the shoulder, left hand and thigh. She was examined by the doctor. The material part of her evidence in the cross-examination was as follows : -
She sustained bleeding injury on both the sides of shoulders in the back, mouth and she had shown this to the A.S.I. She also mentioned the injuries to the scribe. She admitted in the cross-examination that she and her husband used to tend bullocks of the accused. She further admitted to have married first to one Padma Naik with whom she spent about 2 years and had a child. Thereafter there was desertion and two years thereafter she married her present husband Srikanta, she denied the defence suggestion that she was lady of questionable character. In the night on the date of occurrence she did not disclose the occurrence to anybody other than her mother.
6. P.W. 2 is the mother of P.W. 1 and stated that on the date of occurrence at about 5 p.m. 1 reached her house and she was shivering and there was bleeding injury in her mouth and back side of the shoulders. She was in a state of panic. Thereafter she gave out that she was raped by the appellant.
P.W. 4's evidence is no way helpful because he merely stated that on the date of occurrence he returned from the weekly market with Sureswar (not examined) and on the way he saw PW 1 with the bundle.
7. P.W. 9 was the lady Assistant Surgeon who examined the victim on 1-8-1985 at 9.30 a.m. She found scratch situated over the right cheek. There was a scratch halfinch above the medical end of left wrist joint. The doctor found that it was simple in nature and can be possible by hard and blunt weapon. In the cross-examination she stated that the aforesaid two injuries were situated on the exposed part of the body and could be possible by self infliction.
8. Going through the evidence of PW. 1 it is found that she has suppressed a substantial part of the prosecution case as was originally brought out by her in 161 statement recorded by the I.O.
9. In the evidence she stated that while returning to her village on the way she could recollect to have left some article like Kerosene in the market that she went back to the market and again came back with the Kerosene.
In the 161, Cr.P.C. statement she stated that while returning from Tumudibandha market with vegetables and kerosene she went to the house of her brother's sister in that village where she took her meal and thereafter she, appellant, Sureshwar and P.W. 4 came together from Tumudibandha village.
In the F.I.R. she had not stated anything about even such an explanation that she in fact returned to her husband's sisters house and brought the articles therefrom. There is no reason as to why her explanation to go back to the village to fetch kerosene should have been inconsistent so far as her evidence in the court and the 161 statement as well as the F.I.R. was concerned.
10. Another inconsistency found in her 161 statement is that she stated that while coming from Tumudibandha all of them including the appellant started from that village wheras in the F.I.R. she did not state that the appellant in fact accompanied her along with others when they all started from Tumudibandha. The tenor of the statement in the F.I.R. shows as if it was the appellant who for the first time took her by surpirse by catching hold of her hand and dragging her to the nearby Simili tree. That apart in the 161 statement she stated that when she decided to go back to Tumudibandha to get back her articles she handed over the packet to the appellant and thereafter went back to Tumudibandha to fetch kerosene. She further stated in the 161 statement that she came back with kerosene from Tumudibandha.
This inconsistency in the evidence casts a doubt on the prosecution case.
P.W. 9 is the doctor who examined P.W. 1 and found two scratch injuries as mentioned above. There is no opinion of the doctor that these two injuries could be possible during the commission of any rape as alleged by the prosecution. There has been no opinion as to whether there was any injury on the private part of the lady. Although she categorically stated in the evidence that she had sustained injury on the thigh there was no opinion of the doctor and in the absence of any medical opinion which could have corroborated the sole testimony of the prosecutrix, it would not be safe to maintain the conviction. Although it is well settled that the lone testimony of the victim lady can be made the sole basis for conviction and no corroboration is necessary in case the same is accepted as true and free from suspicion, yet as has been mentioned above, because of the inherent defect in presenting the prosecution case, the same is not free from doubt. As has been held in many cases all that is required is that, there must be some circumstance which should support the version of the victim lady by way of corroboration. But all those elements are lacking in the case. The witnesses are found to be related to each other and there is no indepedent witness although I find from the materials on record that there were also few others including Sureshwar who were accompanying P.W. 1 but not examined. The medical evidence is also absent with regard to the opinion as to the fact of rape. For the reasons above the conviction is liable to be set aside.
11. In the result, the appeal is allowed, the lower court judgment is set aside. The bail bond stands discharged.