Orissa High Court
Ashok Sahoo, Junul Gudia, Tuklu Kachhap ... vs State Of Orissa on 8 February, 2008
Equivalent citations: 2008(I)OLR984, 2008 (3) AJHAR (NOC) 717 (ORI.)
Author: L. Mohapatra
Bench: L. Mohapatra, B.K. Patel
JUDGMENT L. Mohapatra, J.
1. The appellants in all the four appeals have been convicted for commission of offences under Sections 341/376(2)(g) of the Indian Penal Code and each one of them has been sentenced to undergo R.I. for life and pay fine of Rs. 10,0007-for conviction under Section 376(2)(g) of the I.P.C. but not separate sentence has been awarded for their conviction under Section 341 of the I.P.C. by the learned Adhoc Additional District & Sessions Judge (Fast-Track Court), Rourkela in S.T. No. 93/13/2003.
2. P.W.9 is the victim and the informant. On 31.7.2002 she lodged an information before the O.I.C. Tangarpali Police Station, Rourkela alleging therein that at about 7.30 P.M. on that date she was taking "GUP CHUP" in the local Laxmi market. Accused persons Baya, Junul, and Tuklu with others namely Chhotu, Fagu, Deba, Tempo were standing nearby. Accused Baya enquired from her as to whether she returned from her work or not. She did not respond to such query and proceeded towards her house. Deba (P.W.11) followed her and informed her that she was required by Tuni of Nabakrishna Nagar. Since she was having love intimacy with said Tuni, she went towards the house of Tuni. On the way accused Baya, Junul and Tuklu met her and accused Baya challenged her saying as to why she did not answer to the query made by him while taking "GUP CHUP" and threatened to see her. Thereafter all the above three if) accused persons bodily carried her into the Nitrat Plant premises, gagged her mouth, undressed her and ravished her.
3. Wife of accused Baya shouted from a distance to leave her but they did not listen and took her to another room where she was again ravished by accused Ashok. After being raped by four persons, she lost her sense and when she regained sense, she found accused Junul and Tuklu who asked her to go to her house. They also came with her upto her house and went away. She having suffered severe pain slept in the night and informed her father's sister (P.W.10) about the incident since her father was absent in the house. After her father returned from jungle she informed about the incident to him and thereafter they came to the police station and lodged the information orally which was reduced to writing. She was sent for medical examination and investigation was initiated. On completion of investigation, charge-sheet was submitted for commission of the aforesaid two offences.
The prosecution in order to establish the charges examined 15 witnesses, whereas one witness was examined on behalf of the defence.
4. Plea of the defence was complete denial of the prosecution case and it is the case of the appellants that they were falsely implicated since wife of accused Baya witnessed the informant engaged in sexual relationship with others.
The trial Court relying on the evidence of the prosecutrix and other circumstances found all the appellants guilty of the charges and convicted them thereunder.
5. Mrs. Patnaik and other learned Counsel appearing for the appellants assail the judgment on the ground that the informant who is the victim was examined in Court as P.W.9 and her evidence is not trustworthy at all. She having made prevaricating statement at different stages in course of examination in Court, no conviction should lie solely on the evidence of such witnesses without corroboration from other sources. According to the learned Counsel, medical report completely negatived claim of P.W.9 that she was ravished by the appellants. There being no other evidence from the side of the prosecution to support claim of being ravished by all the four appellants, the order of conviction and sentence cannot be sustained.
6. Learned Counsel for the State relying on the statement of the victim (P.W.9) as well as the doctor (P.W.5) who examined her submitted that the victim not only said about the manner in which she was ravished in the Nitrate Plant premises by all the four appellants but also P.W.5 who examined her has not ruled out possibility of gang rape. In view of such evidence, there is no reason for this Court to interfere with the impugned judgment.
7. Law is well settled that in case of a rape, if the version of the prosecutrix is found to be trustworthy and acceptable, conviction can lie only on such statement of the prosecutrix. Keeping this in mind, we proceed to examine deposition of the victim (P.W.9). She has stated in her deposition that on 30.7.2003 at about 7 P.M. she had gone to Laxmi Market in Fertilizer town to take "GUP CHUP". At that time accused Baya enquired from her as to when she returned from work. She did not respond. In the meanwhile, Deba (P.W.11) told her that she was required by Tuni and accordingly she accompanied Deba to go to the house of Tuni. When they reached near the Fertilizer plant boundary wall, the appellants lifted her and took her inside a house in the premises, removed her dress and thereafter accused Junul committed sexual intercourse with her. Thereafter accused Baya and Tuklu committed rape on her one after the other. Wife of Baya shouted from outside to leave her, but those three accused persons did not listen and lifted her physically to another room where other accused Ashok committed rape on her putting her down on the ground. When she was shouting, accused persons pressed her neck and ultimately wife of Baya tried to restrain the appellants saying as to why they were sexually assaulting P.W.9 and because of her intervention Baya assaulted his wife. She has further stated that after the incident, she went to her house and slept and on the next day she disclosed about the incident before sister of her father Shanti Kerketta who has been examined as P.W.10. When her father came, they went to the police station and reported the matter.
8. In cross-examination, she has stated that near the factory wall there was darkness. There were not many persons near the Bhati. She had seen the accused persons and identified them near factory wall. There were chips, cement and earth inside the room and there was no light inside the room. There were three half constructed rooms in the factory premises and there are residential houses in the four sides of the factory wall. She has further stated in cross-examination that three accused persons removed her garments forcibly but the dress was not damaged. She has also stated that she did not loose sense after she was sexually assaulted. She again said in cross-examination that 7 to 8 persons raped her and she cannot give the name of other boys. She again changed her statement and stated that the four appellants committed rape and other boys helped the appellants. She admitted in cross-examination that there was no station of blood on her garments and she returned to her house at about 11 to 12 P.M. She has also stated that after she returned home, P.W.10 asked her about cause of delay and she disclosed the incident before her. On the next day, she reported the matter before police. On analysis of evidence this witness, it appears that even though she was aged about 18 years as disclosed by her and four persons committed rape on her one after other, she did not lose her sense. Though in examination in chief she says that she disclosed the incident before sister of her father (P.W.10), in cross-examination she denies to have disclosed the incident before her. Though in examination-in-chief she states to have reported the matter before the police being accompanied by her father and P.W.10, in cross-examination she says that she had reported the matter to police, but does not say that she was accompanied by her father or P.W. 10. Apart from above, in examination-in-chief she stated to have been ravished by all the four appellants, but in cross-examination at one point of time she stated that she was ravished by 7 to 8 persons. No where in the F.I.R. or in her examination-in-chief she stated about the presence of anybody else except the four appellants, but in cross-examination she stated that she was ravished by 7 to 8 persons including the appellants, but subsequently she changed her version and stated that these four appellants had ravished her and others were helping.
9. These major contradictions found in her statement make the witness untrustworthy to a large extent. P.W.5 who examined her on 1.8.2002 was of the view that sexual intercourse might have been committed or might not have been committed on the victim. She has further stated that P.W.9 disclosed before her that she had sexual intercourse with another boy six months prior to the incident. The doctor did not find any spermatozoa in the vagina. Though the victim (P.W.9) claimed that the room in which offence was committed contained chips, earth and sand, P.W.5 opined that if a woman is raped on the stony surface by three or more persons, she is likely to come across injury on her person. Dr. also opined that the victim would suffer injury on her private parts. Surprisingly, though the victim was aged about 18 years and it is alleged that four persons committed rape on her she had not sustained any injury on her private parts or any other part of the body. Opinion of the doctor also negatives to some extent the claim of the victim that she was ravished by the appellants. P.W.10 who is the sister of father of the victim has stated that she was informed by the victim about the incident, but P.W.9 (victim) herself in cross-examination admits that she had not disclosed the incident before her. P.W.11 who is supposed to have informed the victim that she was called by Tuni turned hostile and did not support the case of the prosecution. On analysis of the evidences the following facts emerge:
(1) Though the victim (P.W.9) claimed to have been ravished by the four appellants in a half constructed room, there was no injury on her private parts or any other part of the body, even though she was aged about 18 years.
(2) In F.I.R. and in examination-in-chief she did not say about presence of any other person except the four appellants, but in cross-examination in Court she stated that she had been ravished by 7 to 8 persons and again charged her statement saying that though she was ravished by these four appellants, other persons were helping the appellants.
(3) Though in F.I.R. she stated to have lost her consciousness immediately after the incident, in cross-examination she has admitted that she did not lose her sense ever after four accused persons ravished her.
(4) The doctor did not find any injury on her private parts or existence of sperm.
(5) The victim herself stated that her wearing apparrels were not blood stained.
(6) Though in F.I.R. and in examination-in-chief she stated to have informed the incident to P.W. 10, in cross-examination she stated not to have informed P.W.10.
(7) Medical evidence is not positive about the allegation of rape and the doctor is of the opinion that rape might or might not have been committed.
10. In this connection, reference may be made to a decision of the Apex Court in the case of Dilip and Anr. v. State of M.P. reported in 2001 (II) OLR (SC) 703 : (2001) 21 OCR (SC) 629. The reported case relates to a case of gang rape. The Apex Court on examination of evidence found that the testimony of the prosecutrix suffered from infirmities and her statement was contradicted by medical evidence, serological and forensic reports. The Court on these grounds held that conviction under Section 376(2)(g) I.P.C. is not sustainable. Similarly in the case of Jayasena Pradhan and Ors. v. State reported in 2001 (I) OLR 316 : (2001) 20 OCR 141, this Court in a case under Section 376(2)(g) of the I.P.C. observed that medical evidence does not support the prosecution case and the statement of the husband of the prosecutrix is full of infirmities, improbabilities and inconsistencies. Holding thus the appellant in the said appeal were acquitted. As observed earlier, the testimony of the prosecutrix (P.W.9) is not trustworthy as she has made prevaricating statements at different stages as indicated in the judgment and the allegation of the prosecutrix having been gang raped is not supported by medical evidence. Considering these circumstances, we are of the view that the story put forth by the victim is unbelievable, improbable and contrary to medical evidence. We have, therefore, no hesitation to set aside the impugned judgment.
11. We, accordingly, allow all the four appeals and set aside the impugned judgment and order of conviction and sentence. It is stated that all the appellants are in custody. The appellants be set at liberty forthwith, unless their detention is required in any other case.
B.K. Patel, J.
12. I agree.