Orissa High Court
Balia Alias Balaram Behera And Anr. vs State Of Orissa on 30 August, 1993
Equivalent citations: 1994CRILJ1907
JUDGMENT D.M. Patnaik, J.
1. In the above two appeals, appellants Balaram and his son Bhagirath assail their conviction under Section 376(2)(g) of the Indian Penal Code, and sentence of rigorous imprisonment for five years and ten years respectively.
2. Prosecution case is, on 17-11-1989 about 5 p.m. the prosccutrix (P.W. 1) an unmarried girl aged 22 years reached the village of appellants and demanded Rs. 600/- from appellant Balaram which the latter was obliged to repay. Since he did not pay the amount, there was altercation between the two. When night fell appellant Balaram asked her to stay in his house and take money in the morning. The prosccutrix slept on a cot in the passage room of the appellants. In the night about 10 p.m. it was alleged that she was raped by the appellants and three other unknown persons of that village in succession. She sustained injuries on her neck chest and breast. She could not report the matter during the night hours, but in the next morning about 9 a.m. on 18-11-1989 she reported the matter at Nimapara Police Station. She was sent to Puri for medical examination at 4 p.m. At Puri she could not be medically examined on that day but on. the next day at 10 a.m. she was medically examined. The doctor with reference to the injuries on her person opined that rape could not have been ruled out.
3. The appellants in their defence denied the prosecution allegation but stated that on 18-1)-1989 in she morning, P.W. I came to their house and complained before appellant Balaram that during the preceding night she was raped by some one and sought for his help. Since appellant Balaram expressed his inability to do anything in the matter, if was alleged that, this false case was lodged against them.
4. Mr. P.K. Dhal, learned counsel for the appellants submitted that in view of the highly, improbable nature of evidence of P.W. 1 and the inherent defect in the prosecution case, the conviction and sentence are not sustainable. Mr. Dhal argued on various points which will be discussed at the appropriate stage.
Mr. D. Das, learned Additional Standing Counsel for the State, on the other hand, supported the judgment of conviction.
5. Except the self-breath of the prosecutrix, there is no eye-witness to the occurrence. The trial court has believed the evidence of P.W. 1 as true. It also found her evidence duly corroborated by medical evidence, the doctor (P.W. 4). The point, is whether, in the facts and circumstances of the present case, the nature and extent of corroboration sought by the trial court is sufficient to prove the case against the appellants. I may state the law as on the point:-
It is well settled that the conviction can be maintained even on the sole testimony of the prosecutrix if believed to be true being wholly reliable and in such a case corroboration is not sought for. Corroboration becomes necessary when such evidence is neither wholly reliable nor wholly unreliable. It is in such case, "the court has to circumspect and (sic) look for corroboration in material particulars by reliable testimony, direct or circumstantial" (refer decision , Vadivelu Thevar v. State of Madras).
So far as the victim in the rape case is concerned, generally speaking she is not an accomplice. She is the victim of outrage. In such cases corroboration is not essential if her testimony is believed for securing a conviction. But the court normally looks for corroboration of her testimony to satisfy its conscience that she is telling the truth (vide decision , Gurucharan Singh v. State of Haryana, following the decision in ; but the nature of corroboration should be such so that it lends assurance that the evidence of the prosecutrix can be safely acted upon (vide decision , and this is not with regard to the act of rape alone but such testimony should be corroborated in some matter to connect the appellants (vide decision 1971 (III) SCC 927). Further, corroboration as a matter of prudence becomes necessary in a rape case since as has been held in (supra) that such cases of sexual offences are of exceptional nature since according to the apex court "these cases are, cases in which the oral testimony is by its very nature suspect being that of participators in a crime".
Let us see if the present case in hand satisfies the above requirements.
6. For the present, we may first deal with the Doctor's evidence and his opinion as to the injuries on the person of P.W. 1 (injury on private part being separately dealt with). Mr. Dhal submitted that such injury could not have been possible during ravishment. The doctor found a liner injury of the size of W at the right side of the neck. There were scratches and contusions of reddish blue colour multiple in number regular in shape present on both the side of the chest and the breast. The above injuries were simple in nature and, according to him, probably caused by finger nails and pressure by lips.
I may point out that presence of such injuries on the person of the victim does not conclusively prove rape but it may prove that the victim had put a resistance. In the present case doubt arises with regard to the injuries on the victim for the reason that, according, to her, all the three unknown persons of who one pressed her mouth, the other caught hold of her arms and the third the legs and it was appellant Bhagiratha who first competed rape. She admitted in her evidence that she was completely over-powered and thus could not struggle. So, putting up any resistance did not arise. Therefore, the question arises as to how she sustained these injuries. The Doctor opined that the injuries were probably caused by finger nails and pressure by lips. In her evidence, the prosecutrix stated that, Bhagirathi was the first person who committed rape and he squeezed the breasts. She nowherew stated that because of this sqeezing she received injuries on her breasts. She also did not state that the other four persons who committed rape caused injuries by their finger nails. When P.W. 1 herself did not state how she received these injuries and who caused the injuries and whether the injuries were caused during the act, the Doctor's opinion that such injuries were probably caused by finger nails and presssing of lips cannot be said to be corroborative evidence to the evidence of the prosecutrix. The Doctor's evidence in this regard is only an opinion. In the absence of the statement of F.W. 1 before the court, this opinion becomes hyphothetical.
Secondly, the glaring inconsistency with regard to the injuries is, omission in the F.I.R. It is strange to think if she was ravished by five persons one after the other in succession and sustained the injuries on her upper of the body, this material aspect could not have been omitted in the F.I.R., where she simply stated that she was feeling pain in her breast. So much so the investigating officer (P.W. 5) who at the first instance saw P.W.1 at the police station also did not state to "have seen any mark of injury on the neck or he stated that she complained about such injuries having been received during rape.
It is well settled in law that in case of rape and similar offences against females, the fact that the prosecutrix made a complaint soon after the outrage confirms her testimony so as to destroy the fact of consent. This is considered as a corroboration to her evidence in Court. But care must be taken not to consider all previous statements corroborative statements. The circumstance under which it was made the motive and all other facts must be carefully scrutinised in each particular case. The witness may have had sufficient motive for making false assertions. She may have done so with a distinct object of creating evidence. In such cases corroboration of such previous statements would be of varying character dependent upon circumstances of such case and a person may equally and persistently adhere to falsehood once uttered. In the present case, P.W. 1 had a motive to false implicate the appellants. It might have been a case of consent and being exposed she might have resorted to this course.
7. We may now go to the injuries on the private part of P.W. 1 and the opinion relating to those injuries. Question is whether the opinion corroborates the statement of P.W. 1.
The Doctor in his evidence stated that there was a scratch injury of the size of 1 1/2" drawn from downwards to upwards on the lateral aspect of the left vulva. The vulva was slightly swollen. There was no stains of discharge or bleeding. The pubic hair were not matted. The labia, majora and minora were swollen and tender on touch. She felt pain during separation. The hymen was torn but they were old tears. There was no fresh bleeding. The vaginal opening admitted one finger easily, but it was difficult to admit two fingers. The vaginal canal and the cervics were normal. On pathological examination of vaginal smear, there was presence of few pus cells, but no semen or spermatozoa. He opined, there was recent sexual intercourse. With regard to the rape, he stated as follows:-
"... I found there was recent sexual intercourse on her with injuries on her private parts, breast and chest. Semen and spermatozoa could not be detected in her vagina. She was not habituated to sexual intercourse. I opined that rape on her could not be ruled out. The rape might have been committed by more than one person."
8. The Doctor's opinion that there was recent sexual intercourse cannot be accepted for the following reasons:
Firstly, P.W. 1 stated in para 16 of her cross-examination that she had not sustained any bleeding injury in her private part except injuries on her person which I have already discussed. The Doctor also did not find any fresh bleeding. The vaginal passage admitted only one finger and, according to the opinion of the Doctor, she was not accustomed to sexual intercourse. In such a case it cannot be believed, that when all the four persons who were stated to be in the age group of 20 to 25 (except appellant Balia) committed rape in succession, there would not have been any bleeding at all particularly when the vaginal passage was found to be small enough to admit only one finger.
In the case , Pratap Misra v. State of Orissa, it was found that even though the prosecutrix was a fully grown up married lady and accustomed to sexual intercourse, there was bleeding from her vaginal passage when three young students allegedly raped her. Peculiar feature of that case, was even though forcible intercourse by three students was alleged, the court after considering various circumstances held that the alleged intercourse was with consent. In the case at hand, as I have indicated above, there would have seen bleeding and if that was not so; it could be well doubted as a case of consent by the prosecutrix. Since bleeding from the vaginal passage may depend on various other-factors, this however should not be accepted as an absolute proposition that in every case of rape, there must be bleeding from the vaginal passage, but it would depend on the facts and circumstances of the each case. Absence of bleeding in the present case makes the case of the prosecution doubtful. The Doctor stated in his evidence to have found a scratch injury near the vulva. But, according to P.W. 1 and also the Doctor, there was no bleeding. That apart, the Doctor did not give his opinion nor came forward with an explanation that this scratch injury was the result of forcible sexual assault.
Secondly, the Doctor stated to have examined the vaginal swab but did not find any spermatozoa. Detection of spermatozoa is a positive sign of recent sexual intercourse. It is almost accepted in medical science that presence of spermatozoa in the vagina after the intercourse could be detected from 30 minutes up to 9 days or even 17 days (vide Modi's Medical Jurisprudence and Toxicology, page 337-338, 20th Edition). In a case before the Supreme Court, , Madho Ram v. State of U.P., presence of spermatozoa was detected in the wearing apparel of the girl even after six days of the seizure of the garments and the report of the serologist was accepted as a corroborative evidence of rape.
In the present case, P.W. I stated that four persons, except appellant Balia, while committing the act had full penetration and all relesed the sperm inside the vagina. Could it be believed that P.W. 1 scrubbed her private part so carefully and thoroughly so as to completely wipe out the vaginal fluid so that no spermatozoa could be detected from the vaginal swab even though the same was examined only two days after the occurrence. She did not state anywhere in her statement to have washed or cleaned her private part, but rather stated that when she left the house of the appellants in the morning, she had not finished her daily work and further did not take her bath. Though it cannot be conclusively held that she did not have a wash at all, in the absence of her statement in assertion of such fact, the prosecution case becomes doubtful.
9. Mr. Dhal, with reference to the decision reported in (1985) 59 Cut LT 488, Nimai Kurmu v. State of Orissa, submitted that in the absence of any evidence that the under-wears of the lady were not kept in sealed cover, the evidence of the prosecution that these articles contain seminal stains should be disbelieved. In the case referred to by the learned counsel for the appellants, there was inordinate delay in sending the articles for chemical examination. But this is not the case here.
It was submitted by Mr. Dhal, since the Dhoti (M.O. II) which was claimed to have been spread on the cot did not contain any stain, that would show that P.W.1's version was false. There is force in the contention of the learned counsel since P.W. 1 admitted in her cross-examination that she had spread the Dhoti on the cot which was sized by the police and the same contained seminal stain. This also makes her case doubtful.
I am unable to agree with the submission of the learned counsel that it could not have been possible on the part of five persons to have raped P.W. 1 during that hour of the night since the female members of appellants Balaram and Bhagirathi were sleeping in the adjacent rooms. In view of her evidence that she was over-powered and further threatened, it could not have been possible on her part to raise shout and there was no material to believe that the family members were still awake.
The contention of the learned counsel is that the prosecution case becomes highly improbable for non-prosecution of the three unknown persons, who were alleged to have raped P.W. 1 has force. It is really mysterious that when P.W. 1 stated to have fully known those three unknown persons by their face as they were neighbours of the appellants and further they had come to the place of altercation in the previous evening, yet the police failed to book them under the law. There is no explanation to that effect. There is no quarrel over the proposition as held by the apex court in the case , Lakshmi Singh v. State of Bihar, referred to by the learned counsel that "fouler is the crime, highly is the proof."
Besides, of my own I would like to point out that that there is a reason to believe that P.W. 1 had a motive to implicate the appellants and this was because of the vexed issue of nonpayment of dues by appellant Balia in spite of repeated demands for which it must be held that P.W. 1 was harbouring a smouldering bitterness against the appellants.
10. For the above reasons it can be well said that evidence of P.W. 1 was evidence of a tainted witness, and therefore, it certainly needed corroboration in other material particulars and they are as follows:-
The very fact that the alleged occurrence took place in the house of appellant Balaram it was incumbent for the prosecution to prove that P.W. 1 in fact stayed in the night in the house of appellant Balaram. The case diary shows that the I.O. examined one Raghunath Behera and Somonath Behera of that village who disclosed about that stay of P.W. 1 in the house of the appellants in that night. But for reasons best known to prosecution, none of them was examined. Adverse inferference is therefore drawn for non-examination of such material witness.
Another important corroboration is wanting that is, when she left the house of the appellants in the following morning, she did no disclose the mecabre act of rape in the previous night to any one in the village. This would have been admissible under Section 157 of the Evidence Act as corroboration. The aftermath of the previous night's occurrence must have turned her face lurid with fear and shock and she-must have borne a dismal look. It was strange that neither blushing nor swaggering she calmly went to the police station, five kilo-meter away. Such a conduct was inconsistent with a girl who was a recident of Puri town with five years of service in a photo studio without least hestitation going alone to the village of the appellants, demanding money and facing altercation with the appellants and yet deciding to spend the night in the house of the appellants in spite of the quarrel over the immediate issue. She admitted that in the morning she borrowed Rs. 10/- from appellant Balia and left for police station. This would show that she was never under the stress of any threat.
There was yet another glaring inconsistency in her evidence when compared with her F.I.R. In the F.I.R. she did not name appellant Bhagirathi as the first person to commit rape which is considered as a contradiction as positive omission of a material fact, but in the evidence she stated that it was appellant Bhagirathi who first raped her. It is highly improbable that she would omit to mention the name of Bhagirathi with whom she had close association since she admitted that her family and the appellants lived together as neighbours in Puri for about 20 years.
Besides, in the cross-examination in para 12 she stated that during the altercation between herself and appellant Balaram, the three unknown persons who committed rape on her came to the house of the appellants on hearing their altercation. In para 13 of her cross-examination she stated that she found the unknown persons entering the room but admitted that she did not feel anything since they were the neighbours of the appellants and further thought that they might have come there with some 'other affairs'. Such a statement with regard to the unknown persons also makes her version doubtful.
For the above reasons, the case against the appellants becomes doubtful.
11-12. In the result, the appeals are allowed. The orders of conviction and sentence of the trial court are set aside and the appellants are acquitted of the charge.