Orissa High Court
Sampad Alias Srustidhar Mallick And ... vs State on 12 December, 2000
Equivalent citations: 2001CRILJ793
Author: P.K. Patra
Bench: P.K. Patra
ORDER
1. The appellants have challenged the judgment dated 28-2-1994 in S.T.No.21/156of 1993 passed by Shri S.C. Chhatoi, Additional Sessions Judge, Balasore convicting the appellants under Section 376(2)(g) of the Indian Penal Code (for short 'IPC') and sentencing each of them to undergo rigorous imprisonment for ten years.
2. Briefly stated, the prosecution case is as follows :
In the night of 24-2-93 the prosecutrix (P.W. 4) had slept with her son, aged about 5 years, and a minor girl (P.W. 8), aged about 9 years, in her house in village Juari under Singla Police Station in the district of Balasore. Her husband, a fisherman by profession, had been to the sea for catching fish. It is alleged that at about 11.00 p.m. she got up hearing knocks at the door and aroused P.W. 8 and lighted the lamp and found that these two appellants forced their entry inside the room, breaking open the door and one of them caught hold of her son and the other threatened her with a knife and physically lifted her from the house and took her to the bank of the river situated at a distance of about 50 cubits from her house and committed rape on her. Thereafter the other person also committed rape on her. P.W. 4 was left on the spot and the culprits who were identified to be the appellants in this case by P.W. 4 due to previous acquaintance, left the place leaving behind the knife on the spot, P.W. 4 returned to her house and called P.W. 8 who had concealed her presence inside a cow-shed out of fear and both of them went to the house of P.Ws. 1 & 2 and reported the occurrence and took them to the spot where P.W. 2 collected the knife left by the appellants. P.W. 4 spent rest of the night in the house of P.W. 2. In the next morning she sent for her father-in-law (P.W. 7) who was residing in village Sartha. Though information was sent to the husband of P.W. 4, he did not returned to the village. P.W. 4 narrated the occurrence to P.W. 7 and accompanied him to the police out-post at Sartha under Singla Police Station and orally reported the occurrence before the Assistant Sub-Inspector of Police in the out-post, (P.W. 12) who reduced the same to writing and also entered the same in the Station Diary Entry No. 293 dated 21-4-1993 and sent the report (Ext. 6) to the O. I. C. of Singla Police Station (P.W. 9) who registered t he case and directed P.W. 12 to proceed with the investigation. During the investigation P.W. 12 sent the prosecutrix for medical examination, examined the witnesses, seized the wearing apparels and brokens pieces of bangles of the prosecutrix from the spot. He also seized the damaged bamboo tati and a lantern from the house of the prosecutrix (P.W. 4) and left the same in zima of P.W. 7. He arrested the accused persons on 22-4-93 and seized their wearing apparels, sent them for medical examination and thereafter forwarded the accused persons to Court in custody. He also seized on knife (M.O.I) on production by P.W. 4. On 24-4-93 P.W. 8 took over charge of investigation from P.W. 12. The wearing apparels were sent for chemical examination. After receiving the medical examination reports and chemical examination report, P.W. 9 completed investigation and submitted the charge-sheet against the appellants under Section 376(2)(g), I.P.C. for the alleged commission of gang rape and both the accused-appelants stood their trial.
3. The defence plea is one of denial and false implication due to the protest raised by the appellants to the prosecutrix for her illicit relationship with one Ratnakar Mandal and their threat to report the matter to the husband of P.W. 4.
4. In order to bring home the charge against the appellants prosecution has examined twelve withesses in all, of whom P.W. 4 is the prosecutrix and P.W. 8 is the minor girl who has slept with P.W. 4 in her house at the time of alleged occurrence. P.Ws. 1 & 2 are post-occurrence witnesses. P.W. 3 is a witness to the seizure of one lungi and one underwear from appellant No. 2 under seizure list Ext. 4 and one lungi from appellant No. 1 under seizure list Ext. 5. P.W. 5 is a medical officer of the District Headquarters Hospital who radiologically examined P.W. 4 and opined that she was aged about 25 to 40 years. P.W. 6 is another medical officer of District Headquarters Hospital, Balasore who medically examined both the accused persons and found no sign of recent sexual intercourse by any of them. P.W. 7 is the father-in-law of P.W. 4 who accompanied P.W. 4 to the out-post to lodge the F.I.R. PW. 9 is the O.I.C. of Singla Police Station who registered the case and submitted charge-sheet after completion of investigation. P.W. 10 is the medical officer who examined the urethral snear collected from both the accused-appellants. P.W. 11 is the medical officer who medically examined P.W. 4. P.W. 12 is the A.S.I. of Sartha out-post who investigated into the case. The defence has examined none.
5. The trial Judge found the statement of prosecutrix (P.W.4) to be trustworthy and reliable and based the conviction of the appellants on her statement holding that P.W. 4 has been amply corroborated by P.Ws. 1, 2, 7 & 8.
6. Shri A.K. Acharya, learned counsel for the appellants and Shri Pradhan, learned Additional Standing Counsel were heard at length. Shri Acharya contended that the trial Judge has erred in fact and law and hence the impugned judgment cannot be sustained and is liable to be set aside. The learned Addl. Standing Counsel supported the impugned judgment contending that the trial Court has reached the correct conclusion that the appellants committed gang rape on the prosecutrix.
7. The rival contentions of the parties require careful consideration. In the present case prosecutrix (P.W. 4) is a married woman aged about 22 to 25 years and has been blessed with a son, aged about five years. Her husband is a fisherman by profession gong to the sea for catching fish and returning to the home at times after about a fortnight. During his absence P.W. 4 was alone residing in the house with her son. Her father-in-law (P.W. 7) was also residing in a different village. While appellant No. 2, Gadadhar Pattayat was a co-villager of P.W. 4 being a resident of village Juari, appellant No. 1, Sampada alias Srutidhar Mallik was a resident of village Alumeda which is a nearby village. P.W. 4 has stated that both the appellants who were watching boats in the ferry ghat in the nearby river, had come to her house in the previous evening and had requested her to supply drinking water and also further requested her to come to the nearby village Alumeda to witness Yatra but she had turned down their request. It is the defence case that since the husband of P.W. 4 was remaining absent from home, she had developed illicit relationship with co-villager Ratnakar Mandal and the appellants had threatened P.W. 4 to report the matter to her husband. P.W. 8, the child witness who is the daughter of a neighbour and had slept in the house of P.W. 4 in the night of occurrence, has stated in her cross-examination that the said Ratnakar Mandal alias Balasoria, a co-villager, had come to the house of P.W. 4 in the night of occurrence and both the appellants had picked up quarrel with him that night. This statement of P.W. 8 lends support to the defence plea. That apart, P.W. 8 admitted in cross-examination that she had deposed regarding the occurrence as per the instruction of P.W. 7. In the above circumstances, the sole testimony of prosecutrix (P.W. 4) require careful scrutiny before placing reliance on her to base conviction of the appellants.
8. The medical evidence on record does not support the prosecution case. The Medical Officer (P.W. 11) who examined the prosecutrix (P.W. 4) on police requisition on 22-4-93 at 8.30 p.m. and submitted the report (Ext. 13) found as follows :
(i) there was no sign or symptom of recent sexual intercourse. No foreign body or hair was present in her private part;
(ii) an abrasion (Linear) 2 cm. long present on her forearem;
(iii) the victim lady is not suffering from any veneral disease. V.D. report was attached. Vaginal swab was colleged and sent to Pathologist of the Hospital for examination and opinion.
The opinion report of the Pathologist reveals absence of spermatoza and presence of R.B.C. She sent the victim lady for ossification test. Hymen was absent. Her vaginal canal was admitting more than two fingers on P.V. examination. Cervical erosion was present on the upper lip of the cervix from which there was bleeding. On 5-6-93 she answered the query of the I.C. and submitted her report, Ext. 15 as to whether there was any sign and symptom of any recent sexual intercourse of the victim and she replied that there was no sign or sympton of recent sexual intercourse and that the lady was married and was habituated to sexual intercourse and therefore it could not be said definitely as to whether she had any sexual intercourse or not. In her statement in cross-examination P.W. 11 stated that the abrasion noticed on the forearm of the victim was possible by self-infliction or by friendly hands. The medical officer (P.W. 5) who radiologically examined P.W. 4 has opined that she was between 25 to 40 years as per his report Ext. 7. The medical officer (P.W. 6) who medically examined the appellants found no local injury on their private parts or sorrounding it, no foreign hair or foreign substance and no matting of pubic hair and no sign of recent sexual intercourse as per his reports Exts. 8 & 9. The medical officer (P.W. 10) who examined the urethral smear collected from the appellants found no espermatoza as per report Ext. 11. He also examined the vaginal swab of P.W. 4 and found no living or dead spermatoza as per his report Ext. 12. Thus the medical evidence on record does not support the prosecution case.
9. The prosecutrix (P.W. 4) has stated that she got up hearing the sound of knocking of door and so also P.W. 8 who had slept with her got up and all of a sudden these two appellants entered inside the house and one of them pointed a knife at her chest and the other lifted her son and threatened to kill him in case she raised hullah. Further she has stated that her mouth was gagged by a piece of cloth by the person who had pointed the knife at her chest and she was bodily lifted from her house and taken to the river side where she was made to lie down and was revished after removal of her wearing apparels from her body and she resisted that person by biting and assaulting him and tried to escape from his clutch and that the other person who had carried her son, handed him over to the first person and then ravished P.W. 4 despite her resistance. In her statement in cross-examination she has stated that the she also resisted the first rapist by inflicting injuries on his chest, face and other parts of the body and on the second rapist on different parts of his body, by means of nail and that she sustained injuries on her shoulder, head and leg, but this does not find corroboration from the medical evidence on record. P.W. 4 has also stated that after returning to her house from the spot she did not call her neighbours. This conduct of the prosecutrix in not reporting the incident to the immediate neighbours, but reporting the incident to the distant neighbours like P.Ws. 1 & 2, cannot be held to be in the normal course of human conduct. According to P.W.4, her saree and blouse (M.Os. II & III respectively) were stained with blood and she sustained bleeding injuries during the incident.The I.O. seized the M.Os. III & III under the seizure list Ext. 1 and sent the same for chemical examination, but no blood stain was detected in them as per the chemical examination report (Ext. 20). Though stains of semen were detected on the saree, no semen was detected on the blouse and the Serologist's report Ext. 21 reveals that semen of human origin was detected in the saree. If the statement of P.W. 4 that her wearing clothes were removed from her body at the time of commission of rape, is believed to be true, her wearing saree could not have been stained with semen. Regarding the seizure of the knife, P.W. 4 has stated that the knife was picked up from the spot by P.W. 1 and was produced before police but the I. O., P.W. 12 has stated that he seized the wearing apparels and the knife on production by P.W. 4 as per seizurelist Ext. 1. Though P.W. 1 has stated to have found a knife lying on the spot, he has not stated to have picked up the same and to have produced it before the I.O., but has stated that the I. O. seized the wearing apparels and the knife in his presence under the seizure list Ext. 1. This goes to show that a knife (M.O.I.) has been produced by P.W.4 before the I. O. for the purpose of strength ening her case against the appellant and the same cannot be believed to have been left at the spot by the appellants. The seizure of one lantern and one broken bamboo tati under the seizure list Ext. 2 and two pieces of broken bangles under the seizure list Ext. 3 is also found to have been made with a view to strengthen the case against the appellants. The I.O. P.W. 12 has stated that he did not notice and mark of violence on the spot where P.W. 4 was allegedly raped. The statement of the prosecutrix (P.W. 4) that she struggled to escape and that she inflicted injuries on the appellants, have been belied by the statement of the I.O. (P.W. 12) and the medical evidence on record. Had the prosecutrix (P.W. 4) and her son been bodily lifted from the house to the river side in presence of P.W. 8, in normal course of human conduct, P.W. 8 would have rushed to her house to inform to the inmates of the house or could have aroused the immediate neighbours of the P.W. 4 in order to bring to their notice that P.W. 4 and her son had been physically lifted from the house to the river side at the point of a knife; but she has not done so and instead has stated to have concealed her present inside a cow-shed till the return of P.W. 4 to the house. As admitted by P.W. 8 she deposed regarding the occurrence as instructed by P.W. 7. Hence the statement of P.W. 8 cannot be relied upon for the purpose of corroboration of the statement of P.W. 4.
10. In view of the above materials on record and specially when the statement of the prosecutrix, (P.W. 4) is found to be bristling with inconsistencies and infirmities, it will be quite hazardous to place reiance on her to base a conviction of the appellants. It cannot be held that the appellants committed gang rape on the prosecutrix. On the other hand if at all the appellants had sexual intercourse with the prosecutrix, it might have been with her consent and not against her will. THe trial Court overlooked these aspects of the case and has failed to properly appreciate the evidence on record, which resulted in erroenous conclusion of guilt of the appellants. In view of the discussions made above, the appellants cannot be held guilty of the charge under Section 376(2)(g) I.P.C. and they will be entitled to acquittal and the impugned judgment is liable to be set aside.
11. In the result, the Criminal Appeal is allowed and the impugned judgment dated 28-2-1994 passed by the Additional Sessions Judge, Balasore in S.T.No. 21/156 of 1993 convicting the appellants under Section 376(2)(g) I.P.C. and sentencing each of them to undergo rigorous imprisonment for ten years is set aside and the appellants are found not guilty and are acquitted of the charge. They be set at liberty forthwith, if their detention is otherwise not required in any other case.