Orissa High Court
Bhujabal Bagh @ Baghel vs State Of Orissa on 29 June, 2015
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRA NO. 43 OF 2002
From the judgment and order dated 3.8.2000 passed by Asst.
Sessions Judge, Nuapada in Sessions Case No.12/14 of 1999.
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Bhujabal Bagh @ Baghel ........ Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Smt. Usharani Padhi
For Respondent: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
CRLA No. 197 of 2000
Sanjaya Das @ Nilu ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - M/s. D. Nayak, D.P. Das
R.K. Pradhan
M. Mohanty, S. Swain
P.K. Mohanty
Basanta Kumar Das
For Respondent: - Mr. Janmejaya Katikia
Addl.Govt. Advocate
CRLA No. 286 of 2000
Samuel Nag ......... Appellant
-Versus-
State of Orissa ......... Respondent
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For Appellant: - M/s. S.D. Das, L. Samantray
B.N.Udgata,A.K. Nayak
B.K. Sinha, D.R.Bhotra
H.S.Satpathy
A.Mohanty
Sonita Biswal
For Respondent: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument- 17.06.2015 : Date of Judgment- 29.06.2015
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S.K.SAHOO, J.The appellants faced trial in the Court of learned Assistant Sessions Judge, Nuapada in Sessions Case No.12/14 of 1999 for offence punishable under section 376(G) Indian Penal Code (appears to have been wrongly mentioned in place of 376(2)(g) Indian Penal Code) for committing gang rape on 'S' (hereafter 'the victim') on 19.11.1998 at about 10.30 a.m. at Loharpali.
The learned trial Court vide impugned judgment and order dated 3.8.2000 found the appellants guilty of the offence under section 376(2)(g) Indian Penal Code and accordingly convicted them of such offence and sentenced them to undergo rigorous imprisonment for ten years and to pay fine of Rs.10,000/- each, 3 in default, to undergo further rigorous imprisonment for one year.
2. The prosecution case as per the first information report lodged by Bayaj Nanda (P.W.1) before officer-in-charge, Khariar Police Station is that on 19.11.1998 at about 11.00 a.m. while the informant was ironing dresses in his laundry, at that time his elder brother's wife Satyabati Nanda (P.W.3) rushed to him and intimated that some time ago, the victim had been gang raped by the appellants Nilu Das, Samuel Nag and the servant of Nilu Das. The victim happened to be the daughter of P.W.3 Satyabati Nanda and Sana Nanda, the elder brother of the informant. Hearing about the incident, P.W.1 rushed to the house and found the victim crying. On being asked by the informant, the victim stated that on that day at about 10.00 a.m. while she was proceeding towards Leherapali, the appellants Nilu Das, Samuel Nag and the servant of Nilu Das forcibly lifted her to the house of appellant Nilu Das and made her naked and out of the appellants, appellant Samuel Nag sat on her chest and pressed her on the ground. She further stated that the servant of appellant Nilu Das caught hold of her two legs and thereafter the appellant Nilu Das himself became naked and committed rape on her forcibly. After committing the crime, the appellants left the 4 spot and the victim returned home crying and narrated the incident before her mother. As the condition of the victim became serious, she was taken to Mission Hospital for treatment by her mother and the informant. At the time of lodging FIR, the victim was under treatment.
3. On receipt of the written report of P.W.1, the officer-in- charge of Khariar Police Station namely Balabhadra Dip (P.W.7) registered Khariar P.S. Case No.139 dated 19.11.1998 under section 376(G) Indian Penal Code at about 3.00 p.m. and took up investigation of the case. During course of investigation, the I.O. examined the informant, the victim and her mother and recorded their statements, submitted a requisition to the Director, Evangelical Hospital, Khariar for examination of the victim girl and for opinion and accordingly he received the report of the victim from Medical Officer vide Ext.10/2. He seized the wearing apparels of the victim on being produced by the victim under seizure list Ext.2 and visited the spot. On 20.11.1998 the I.O. examined the appellants and seized their wearing apparels under seizure lists Exts.3, 4 and 5. The I.O. again sent the victim to UGPHC, Khariar for her medical examination. The wearing apparels were also sent to Medical Officer, UGPHC, Khariar for examination. The appellants were sent to the Medical 5 Officer, UGPHC for their examination. The I.O. seized one sealed packet containing pubic hair as well as vaginal swab of the victim in two separate phials and another sealed packet containing dresses of the victim under seizure list Ext.7. The appellants were arrested and forwarded to Court on 21.11.1998. The I.O. received the the medical examination reports of the victim as well as the appellants from UGPHC, Khariar. The victim was sent for ossification test to District Headquarters Hospital, Bhawanipatna under police requisition. The seized exhibits were sent to Dy. Director, RFSL, Berhampur through JMFC, Khariar. The ossification test report of the victim was received by the I.O. and after completion of investigation, he submitted charge-sheet under section 376(2)(g) Indian Penal Code against the appellants on 6.1.1999.
4. After submission of charge-sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellants under section 376(G) of Indian Penal Code on 16.3.1999 and since the appellants refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.
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5. During course of trial, in order to prove its case, the prosecution examined seven witnesses.
P.W.1 Bayaja Nanda is the paternal uncle of the victim who is also the informant in the case. He stated to have received information regarding the occurrence from the mother of the victim on 19.11.1998 at his laundry. He further stated to have taken the victim to Mission Hospital as her condition was very serious.
P.W.2 is the victim.
P.W.3 Smt. Satyabati Nanda is the mother of the victim before whom the victim narrated about the incident. She has further stated that after hearing about the incident, she approached P.W.1 and informed him about the matter and then took the victim to Mission Hospital, Khariar.
P.W.4 Eshaq Dani is a witness to the seizure of the wearing apparels of the victim under seizure list Ext.2.
P.W.5 Dr. Sarita Behera who was attached to UGPHC, Khariar as Medical Officer examined the victim on 20.11.1998 and proved her report vide Ext.8.
P.W.6 Dr. Jadumani Sahu was the Medical Officer attached to UGPHC, Khariar who examined the appellant Sanjay Das @ Nilu on 20.11.1998 and proved the medical report vide Ext.9. 7
P.W.7 Balabhadra Dip was the officer-in-charge of Khariar Police Station who is the Investigating Officer.
The prosecution exhibited fourteen numbers of documents. Ext.1 is the F.I.R., Exts.2, 3, 4, 5, 6 & 7 are the seizure lists, Exts.8, 9 & 10/2 are the medical reports, Exts.11 & 12 are the command certificates, Ext.13 is the requisition for ossification report and Ext.14 is the copy of the forwarding letter of the exhibits for chemical examination.
The prosecution also proved some material objects. M.O. I is the salwar, M.O. II is the Punjabi, M.O. III is the Chadi, M.O.IV is the phial containing vaginal swab of the victim and M.O.V, VI & VII are the pubic hairs of the accused persons.
6. The defence plea of the appellants is one of denial. It is pleaded by appellant Sanjay Das @ Nilu that the father of the victim made a proposal of marriage of the victim with him as he and the victim were having close relationship with each other but as his parents did not agree to such marriage proposal, the case has been foisted.
The defence examined two witnesses.
D.W. 1 Binod Tandi stated that he had no financial relationship with the family of the victim.
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D.W.2 Dr. Puspakanti Ekka was the Lady Assistant Surgeon in Mission Hospital, Khariar who stated that on 19.11.1998 the police had sent requisition to their hospital for medical examination of the victim but as the victim did not agree for her examination, she reported back to the police.
From the side of the victim, the endorsement of D.W.2 on Ext.10 was marked as Ext.A and the chemical examination report was marked as Ext.B.
7. The learned trial Court vide impugned judgment and order dated 3.8.2000 held that the prosecution evidence is clinching and convincing and there is no reason to disbelieve the prosecution evidence and to place reliance on the evidence adduced by the defence. The learned trial Court further held that on overall consideration of the evidence on record, there is no doubt that on 19.11.1998 the victim was subjected to sexual assault by appellant Nilu @ Sanjaya Das against her will and consent and the other two appellants had helped the appellant Nilu to commit the offence of rape and accordingly held all the appellants guilty of the offence under section 376(2)(g) Indian Penal Code and sentenced them as noted above.
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8. Being dissatisfied with the impugned judgment and order of conviction, the instant appeals have been filed by the convicted accused-appellants.
Mr. Basanta Kumar Das, learned counsel appearing for the appellant Sanjaya Das @ Nilu contended that though the victim has stated that all the three appellants lifted her and took her to the old house of appellant Nilu and threw her on the cement verandah and thereafter the appellant Nilu raped her for about twenty minutes and there was full penetration of his private part into her vagina and she was trying her best to escape and avoid sex by moving her waist, back and head but the doctor P.W.5 who examined the victim did not find any injury on the back, buttock or thigh of the victim and even though the doctor found only one abrasion on the right side of the neck but he has stated that such injury on the neck can be self-inflicted. He further contended that even though the victim stated that she caused some nail bites on the hands of appellant Samuel Nag when he put his hands into her mouth but there is no medical evidence in support of the same. He further submitted that the conduct of the victim in not allowing the doctor (D.W.2) to examine her on police requisition at the earliest opportunity on the date of occurrence indicates that the victim deliberately avoided for 10 being examined on the same day apprehending that her false implication regarding gang rape might come to light. He further contended that scribe of the FIR namely Suryakanta Rao has not been examined by the prosecution and even though the investigating officer has stated that there are other residential houses nearer to the place of occurrence at the audible distance but the prosecution has not examined a single independent witness whose house was situated nearer to the place of occurrence. Finally the learned counsel for appellant submitted that even though the wearing apparels of the victim were seized at the hospital by the police and sent for chemical examination but no semen stain were detected and that is why deliberately the prosecution did not prove the chemical examination report which was ultimately proved by the defence as Ext.B. Miss Sonita Biswal, learned counsel appearing for the appellant Samuel Nag launching a scathing attack on the impugned judgment and order submitted that the prosecution case is doubtful and when the place of occurrence was surrounded by paddy fields and a pump house was situated at a little distance and the incident stated to have taken place during the harvest season at about 10.30 a.m. when other persons are expected to be working in the paddy field, it is not believable 11 that the appellants would dare to commit such an offence when there was every chance of their being caught by others. She further contended that the conduct of the victim in not raising any hue and cry or hullah when the appellants initially approached her is very suspicious. She further contended that when police requisitions were made for the medical examination of all the three appellants, it is not understood as to why only appellant Sanjaya Das @ Nilu was examined and not the other two. She further contended that the statement of the victim that she had been to the house of D.W.1 to bring some money for the purpose for filling up form for admission on the date of occurrence is not at all acceptable inasmuch as D.W.1 has not corroborated the same and the further statement of the victim that she had gone to bring money for her +2 admission in the month of November is also not acceptable as no +2 admission takes place at that time and particularly when her mother (P.W.3) has stated that the victim had been to the house of D.W.1 to bring money for the purpose of examination fee. Finally, it was contended that the conduct of P.W.3 in sending a grown up girl like the victim alone to the house of D.W.1 to bring money is also very difficult to accept.
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Learned counsel for appellant Bhujabal Bagh @ Baghel adopted the arguments of the learned counsels appearing for the appellants Sanjaya Das @ Nilu and Samuel Nag.
Mr. Janmejaya Katikia, the learned Addl. Govt. Advocate appearing for the State submitting conversely argued that the evidence of the victim is truthful, cogent and unblemished and no animus could be brought out by the defence to falsely implicate the appellants. He further contended that the evidence of the victim gets corroboration not only from the medical evidence but also from surrounding circumstances. He further contended that the contradictions appearing in the evidence of the victim are so trivial in nature that it does not shake the credibility of the statement of the victim and accordingly it can be safely relied upon. In a sense, it is urged by him that when these aspects are appreciated in a seemly manner, the cumulative effect would go to show that the appellants have appositely convicted by the learned trial Judge.
9. Section 376(2)(g) of Indian Penal Code prescribes punishment for commission of gang rape. In a case of gang rape, it is not at all necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim. Once it is established that the 13 accused persons had acted in concert then all of them can be held guilty. Actual act of rape by even one individual forming the group would fasten the guilt on other members although he or they have not committed rape on the victim.
In case of Ashok Kumar V. State of Haryana reported in 2003 (2) Supreme Court Cases 143 while dealing with the offence under section 376(2)(g) Indian Penal Code read with explanation, the Hon'ble Supreme Court held as follows:-
"8.........In order to establish an offence under section 376(2)(g) Indian Penal Code read with Explanation 1 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 order 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 offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence."
10. To appreciate the rival submissions raised at the bar, I have bestowed my anxious consideration to weigh and analyse the evidence brought on record for the purpose whether the 14 charge of gang rape as per the testimony of the victim deserves acceptance and ultimately the prosecution case deserves acceptance.
Visit of the victim to the house of D.W.1 The victim has stated in her evidence that on 19.11.1998 at about 10.30 a.m. she had been to the house of D.W.1 Binod Tandi to bring some money for the purpose of filling up form for admission. Such statement of the victim was seriously criticized by the learned counsels for the appellants as D.W.1 has not stated that the victim had been to his house on the date of occurrence.
It appears that though the victim has stated that on the date of occurrence she had been to the house of D.W.1 but she has further stated that as she found D.W.1 to be absent, she immediately returned to her house. D.W.1 was working as a Ward Attendant in Mission Hospital, Khariar and he has stated that on 19.11.1998 his wife was also working in the Mission Hospital and usually both of them go to the hospital at a time by locking the house and their children also go to the school at that time. D.W.1 has further stated that he had no knowledge whether the victim came to his house on 19.11.1998. Analysing the evidence of the victim as well as D.W.1, I find no ambiguity 15 as contended by the learned counsels for the appellants. Since the victim had been to the house of D.W.1 at a time when he and his wife were not there and they had been to Mission Hospital where they were working, the victim obviously could not meet D.W.1 and accordingly returned to her house. Purpose of visit to the house of D.W.1 The learned counsels for the appellants contended that the purpose for which the victim stated to have visited the house of D.W.1 on the date of occurrence i.e. for bringing some money for the purpose of filling up form for admission in the month of November 1998 cannot be accepted as usually no +2 admission takes place at that point time. It is further contended that victim's mother (P.W.3) has stated that victim had been to the house of D.W.1 to bring money for the purpose of examination fee.
P.W.2 had failed in the +2 examination and as on the date of occurrence, she was a college student who was prosecuting her studies in Khariar College. When the victim has specifically stated that for a particular purpose she visited the house of D.W.1 on the date of occurrence and the defence has not brought anything contrary by examining the authorities of Khariar College that as on the date of occurrence there was no 16 scope for any student to take admission in +2, the hypothetical argument advanced by the learned counsels for the appellants cannot be accepted. Similarly P.W.3 is an illiterate lady and as such even if she has stated the purpose of visit of the victim to the house of D.W.1 in a different manner, it does not create a doubt about the visit of the victim to the house of D.W.1 on the date of occurrence.
Sending the victim alone to the house of D.W.1 The conduct of P.W.3 in sending the victim alone to the house of D.W.1 as was criticized by the learned counsels for the appellants cannot be a factor to doubt her evidence as both the victim and D.W.1 belonged to the same village and it was during day time when victim visited the house of D.W.1 after taking permission from her mother.
Examination of independent witnesses of the vicinity No doubt the incident stated to have taken place during the day time and there is evidence on record that there were paddy fields at a distance from the spot and there were also residential houses situated nearer to the place of occurrence in an audible distance but there is absolutely no evidence that anybody was present at that point of time either in the paddy fields or in the vicinity where the occurrence took place. Thus the 17 contention of the learned counsels for the appellants that the prosecution should have examined some independent witnesses and for non-examination of such witnesses, the prosecution case should be viewed with suspicion is fallacious and accordingly not acceptable.
Ocular evidence of victim vis-à-vis the medical evidence Coming to the contentions raised by the learned counsels for the appellants regarding discrepancies between the ocular evidence of victim vis-à-vis the medical evidence, it is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration and the Court can convict the accused on the sole testimony of the prosecutrix. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the victim. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version if it is otherwise reliable and inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. 18
The victim has stated that while she was returning to her house, on the way near the house of appellant Nilu, appellant Samuel suddenly appeared and caught hold of her wrist and when she tried to raise her voice, he put his hand in her mouth. Appellant Nilu caught hold her waist and the other accused caught hold her legs and then all the three appellants lifted her and took her to the old house of the appellant Nilu. Then the appellants threw her on the verandah. The appellant Nilu then undressed her by removing her clothes, appellant Bhujabal pressed her legs, appellant Samuel put her hand in her mouth and then appellant Nilu committed sexual intercourse against her will.
In the cross-examination, the victim has stated that she was completely naked when she was raped. She tried her best to escape and avoid the rape but she could not. She moved her waist and back and head while protesting the sexual assault. She has further stated that the appellant raped her for about 20 minutes and the appellant Nilu had a full penetration of his private part into her vagina. She has further stated that she had no sexual intercourse with anybody prior to the occurrence. She stated that she was raped on a cement verandah. 19
At this juncture, scanning the medical evidence would indicate that P.W.5 Dr. Sarita Behera examined the victim on 20.11.1998 at UGPHC, Khariar and she detected one 'V' shape abrasion (nail mark) on the right side of the neck and on external genitalia, there was no injury mark but on the examination of hymen, she found two redial tears, one at 12 O' position and another at 9 O' position so also congestion of fourchette. She did not find any blood stain, dry stain or any foreign body on the private part or thighs of the victim. The I.O. made certain queries to the Medical Officer and she gave her reply.
The first query was that whether the victim girl had been raped? The doctor replied that it cannot be said that the victim was not raped since the injury in the vagina was within 48 hours.
The second query was made as to whether any sign and symptom of rape were seen on the person of the victim? The doctor replied that from the sign and symptom, it cannot be said that the victim was not raped.
The third query was that as to whether the hymen of the victim was ruptured due to such rape on her? The doctor replied that the hymen of the victim was ruptured radically at 12 O' 20 clock and 9 O' clock position with congested fourchette which suggested that she was subjected to assault which was clarified to be sexual assault.
The fourth query was that whether the victim girl had sustained injuries on her genital area? The doctor replied that except the injury on hymen, there was no other injury on the genital area.
The fifth query was that whether injuries were available on the neck, chest, wrist, legs waist, and back of the victim due to violence and nail marks etc.? The doctor replied that except the injury on the neck, no other injury was found on the face, breast and abdomen.
The sixth query was that whether any foreign body like blood, semen, saliva, hairs etc. were available on the private parts and other parts of the body or on the seized wearing apparels? The doctor replied that there was no sign of blood stain or semen on the wearing apparels or on the body of the victim.
The doctor has stated that she had not found any spermatozoa in the private part of the victim and injury on the hymen as well as neck can be self-inflicted. She has further stated that she found no injury on the back, buttock or thigh of 21 the victim and the injury found on the hymen of the victim can also be possible on consented sexual intercourse.
Analysing the evidence, it is found that it is not a case where there is absolutely no injury or sign or symptom of rape on the victim. Not only an abrasion was noticed on the right side neck but also two redial tears were found on the hymen and the fourchette was found to be congested. The injury on the vagina was within 48 hours. It is not to be forgotten that according to the victim's version, rape was committed by appellant Sanjaya Das @ Nilu while appellant Bhujabal was pressing her legs and appellant Samuel was putting his hand in her mouth. Thus the movement of the victim to protest vigorously was restricted and in such a situation merely because no injury was found on the back, buttock or thigh of the victim, it would not falsify the evidence of rape. The victim has stated that she tried her best to escape and avoid the rape but could not escape. Obviously when three persons were restricting her movement, she could not escape or avoid rape. The victim has also stated to have moved her waist, back and head while protesting the sexual assault but even if in such a situation, it cannot be said that there would have been injury on the back or waist because the movement, if any would not have been much in view of the participation of 22 number of persons in the crime. When the doctor has made specific statements that in view of the injuries sustained by the victim on her private parts, congestion of fourchette and injury on the neck, the commission of rape cannot be negatived, the contention of the learned counsel for the appellants that there were discrepancies in the ocular evidence of the victim vis-à-vis medical evidence cannot be accepted.
Findings in the chemical examination report The victim stated that she was completely naked when she was raped and appellant Nilu undressed her by removing her clothes. In such a situation, if after commission of rape, she wore her dresses, the non-finding of semen stain on her wearing apparels as per the chemical examination report cannot be a factor to doubt the commission of rape.
Scribe of FIR not examined The learned counsels for the appellants submitted that one Suryakant Rao who was the scribe of the FIR has not been examined which cast a shadow of doubt on the prosecution story.
According to my humble view, the non-examination of the scribe does not affect the prosecution case. The FIR has been proved by the informant himself who had put his signature on 23 the FIR which has also been proved. When the informant as well as the investigating officer have proved the first information report, it was not at all necessary to examine the person who had scribed the same. The non-examination of the scribe of the First Information Report cannot be a ground to doubt the prosecution case and it can at best be treated as mere irregularity, but if it is otherwise proved, then it can be said that irregularity has been cured.
Medical reports of other appellants not proved The I.O. sent all the three appellants for medical examination to UGPHC, Khariar but it appears that only appellant Sanjay Das @ Nilu was examined by the doctor P.W.6 and his medical examination report was proved during trial. No specific questions in that respect have been put either to the I.O. or the doctor. It may be that when the allegation was against appellant Sanjay Das @ Nilu only to have committed rape on the victim whereas the other two appellants assisted him, the doctor might not have examined the other two appellants. Without putting questions to the relevant witnesses who could have explained the same, the contentions raised deserves to be rejected outright.
24Victim's refusal for medical examination at the first instance As it appears, requisition was sent by the I.O. to the Director, Evangelical Hospital for medical examination of the victim under Ext.10. D.W.2 has stated that the victim did not agree to be examined. She states that the she cannot say as to why the victim refused to get examined by her.
When requisition was sent by the I.O. to the Director and the Director has not given any direction to D.W.2 to examine the victim, no exception can be found in the conduct of the victim in refusing to be examined in the hands of D.W.2.
Medical examination of the victim of rape can be done only with her consent or of a person competent to give such consent on her behalf and the report should specifically indicate about obtaining such consent.
Defence plea of appellant Sanjaya Das @ Nilu The defence plea of the appellant Sanjaya Das @ Nilu that he had been falsely entangled in the case as his parents did not agree with the marriage proposal of the victim given by her parents is too difficult to accept. The victim has denied in her evidence that any marriage proposal was given by her father. No suggestion in that respect has been given to P.W.3. The parents 25 of appellant Sanjaya Das @ Nilu have not been examined to depose about any such marriage proposal. It is very absurd to suggest that the victim or her parents would put forth a false charge of rape against appellant Sanjaya Das @ Nilu because of non-approval of the marriage proposal by his parents.
11. On the overall analysis, I am of the view that there is no inherent improbabilities and infirmity in the evidence of the victim or other evidence adduced by the prosecution which lends credibility to the statement of the victim. The manner in which the appellants have acted in concert and committed the offence, the conduct of the victim after the occurrence in disclosing before her mother, the prompt lodging of the FIR, the seizure of torn salwar of the victim coupled with the medical evidence clearly establish the offence against the appellants. The learned trial Court seems to have correctly assessed the evidence and there is no flaw in the impugned judgment and order of conviction of the appellants under sections 376(2)(g) Indian Penal Code and accordingly I have no hesitation to give stamp of approval to the same.
The learned trial Court has imposed the minimum sentence prescribed for such heinous offence. The measure of punishment in a case of rape depends upon the conduct of the 26 accused, the state and age of sexually assaulted female and the gravity of the criminal act. The learned trial court considered all the relevant facts and circumstances bearing on the question of sentence and proceeded to impose the minimum sentence commensurate with the gravity of the offence. Though the section provided for imposition of lesser sentence than ten years for any adequate and special reasons but the learned trial court found no extenuating or mitigating circumstances available on the record to justify imposition of any sentence less than the prescribed minimum to the appellants. To show mercy in a case of heinous crime like this would be travesty of justice and the plea of leniency would be wholly misplaced.
12. Consequently, the impugned judgment and order of conviction of the appellants for the offence under section 376 (2)
(g) Indian Penal Code and the sentence of R.I. for a period of ten years and payment of fine of Rs.10,000/- each, in default of payment of fine to undergo further R.I. for a period of one year as was imposed by the learned trial Court is hereby confirmed.
13. Accordingly, the appeals being devoid of merit stand dismissed.
As it appears that the appellant Sanjaya Das @ Nilu and Samuel Nag are on bail granted by this Court during the 27 pendency of the appeal. Their bail bonds stand cancelled and they are directed to surrender forthwith before the learned Trial Court within one week to serve out the remaining period of their sentence, failing which the learned trial Court shall take appropriate steps for their arrest. So far as the appellant Bhujabal Bagh @ Baghel is concerned, though he was on bail during trial but after the pronouncement of the judgment on 3.8.2000 by the learned trial Court, he was taken into custody and he was not released on bail during pendency of Jail Criminal Appeal No.43 of 2002. Thus he has already undergone the sentence imposed by the learned trial Court which is confirmed by this Court. If the appellant Bhujabal Bagh @ Baghel has not been released from jail custody in the meantime, he should be released forthwith, if his detention is not required in any other case.
Before parting, I would humbly say that rape is not the fault of the victim. It is a crime of physical and psychological violation. The after effects are the nightmare, sleeplessness, depression, agitation, irritation with sudden outburst of anger. The victim carries the traumatic experience throughout her life. Rape is an outrage that cannot be tolerated in a civilized society. 28
Lower Court's records with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 29th June, 2015/Sisir.