Orissa High Court
Ram Hansada vs State Of Orissa on 16 August, 2017
Author: Biswajit Mohanty
Bench: Biswajit Mohanty
ORISSA HIGH COURT: CUTTACK
JAIL CRIMINAL APPEAL NO.77 OF 2011
Arising out of Judgment dated 27.07.2011 passed by Sri R.K. Sahu, Ad hoc
Additional Sessions Judge (F.T.C.-II), Balasore in Sessions Trial Case
No.70/107 of 2009.
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Ram Hansada ...... Appellant
-versus-
State of Orissa ...... Respondent
For appellant : Mr. Siba Prasad Mishra
For respondent : Ms. Saswata Pattnaik
(Addl. Government Advocate)
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Date of Judgment:16.08.2017
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
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The appellant has preferred the present appeal challenging the
judgment dated 27.7.2011 pronounced by the learned Ad hoc
Additional Sessions Judge (F.T.C.-II), Balasore in Sessions Trial
No.70/107 of 2009 convicting the appellant under Section - 376(2)(g),
I.P.C. The appellant has also challenged the sentence imposed on him
whereby he has been directed to undergo R.I. for 10 years.
2. A thumb nail sketch of the prosecution case is that the
victim/informant (P.W.5) is a married lady and she belongs to village
Bisipur under Udala Police Station in the district of Mayurbhanj. She,
her husband and her elder brother-in-law came to Gandibed village
under Khaira Police Station in the District of Balasore to do labour
work during harvesting season. P.W.5 and her husband were residing
2
in the house of the appellant. On 15.11.2008 at about 7.00 P.M., the
appellant told P.W.5 that her husband was lying in a drunken
condition at Hatpada (Gandibed) and asked her to accompany him to
that place. Accordingly, P.W.5 went with the appellant and found her
husband in a normal condition and not under influence of liquor. Her
husband sent her back to home with the appellant. While P.W.5 and
the appellant were returning, the appellant purchased a liquor pouch
and gave her to take the same. Then the appellant took her (P.W.5) in
a different route and ultimately took her inside a half constructed
thatched roof mud house. There, the appellant made her naked, laid
her down on the ground and forcibly committed rape on her. After
committing rape on her, the appellant called two acquitted persons,
namely, Gurubha Murmu and Ramesh Murmu, who also committed
rape on her. On being raped, she became unconscious. At around 3
A.M. in the morning, when she regained her senses, she found the
appellant sleeping by her side. She came back to the house of
appellant and searched for her husband. Around 11.00 A.M. of
16.11.2008, her husband reached the house and she (P.W.5) disclosed the incident to him. On 17.11.2008, around 12.00 Noon, P.W.5 lodged a written report which was registered as Khaira P.S. Case No.129 of 2008 under Section 376(2)(g), I.P.C. against the appellant and two above named acquitted persons. After completion of investigation, charge-sheet was submitted by P.W.6 against the appellant and two 3 other acquitted persons. Accordingly, the appellant and two acquitted persons were put to trial. The plea of the appellant was complete denial and false implication on account of previous ill feeling.
3. The prosecution in order to bring home the charge, examined as many as 9 witnesses and exhibited 15 documents. Sari and saya of P.W.5 and lungi of the appellant were marked as M.Os. on behalf of the prosecution. P.W.5 is the victim & informant in this case, P.W.8 the scribe of the F.I.R., P.Ws.9 & 6 respectively are the 1st and 2nd Investigation Officers in this case. P.W.6 has proved Forwarding Report under Ext.8 and Chemical Examination Report under Ext.9. P.W.3 is the Medical Officer, who examined P.W.5 and P.W.2 is the Medical Officer, who had examined the appellant and two other acquitted persons. P.Ws.1,4 & 7 are the seizure witnesses.
4. The defence examined two witnesses but did not exhibit any documents.
5. Learned counsel for the appellant submitted that a combined reading of the evidence of P.Ws.3,5 & 9 clearly throws a cloud on the entire story of rape. According to him as per fact situation, it is not a case of rape but is a clear case of sexual intercourse on consent. In this context, he mainly highlighted the contradictions brought out in the evidence of P.W.9 vis-à-vis P.W.5. He also put much stress on the deposition of P.W.3, who on examining P.W.5 has stated that she did not find any external injuries on P.W.5 and on the private parts of 4 P.W.5 appeared to be normal. There was no staining, bleeding or matting on pubic hair of P.W.5. Further, as per the opinion of P.W.3 sign of sexual intercourse was remote. In such background, learned counsel for the appellant contended that all these belie the prosecution story relating to rape. Accordingly, he contended that the learned court below has gone wrong in convicting the appellant. Secondly, he contended that since out of three accused persons only one namely the appellant has been convicted and other two have been acquitted, even conceding for the sake of argument but not admitting that the present is a case of rape, then it can only be a case of rape simplicitor under sub-section (1) of Section-376, I.P.C. and cannot be a gang rape under Section 376(2)(g), I.P.C. Thirdly, he contended that though semen has been found on saya of P.W.5 and semen stains are there on the lungi of the appellant as seized under Exts.5 & 7 respectively, however, there exists no connection between the seminal stains found on the saya of P.W.5 and the lungi of the appellant. In fact, the chemical examination report under Ext.9 does not connect the said stains. He further submitted that the semen found on the saya of P.W.5 may be the semen of her husband, who has not been examined in this case. In such background, learned counsel for the appellant submitted that judgment of conviction required to be set aside and the appellant, who is a poor tribal and has suffered incarceration for more than 8 years, should be set at liberty. 5
6. Ms. S. Pattnaik, learned Additional Government Advocate defended the judgment and submitted that there exists enough material on record for which order of conviction passed by the learned Ad hoc Additional Sessions Judge (F.T.C.-II), Balasore should not be interfered with. She also submitted that no lady, more particularly, a married lady would ever make a false allegation of rape in a society like ours so as to sully her own image. Lastly, she submitted that the core prosecution evidence of P.W.5 relating to rape has remained undemolished notwithstanding a lengthy cross-examination.
7. Before proceeding further, this Court thinks it proper to address at the outset to the second submission made by the learned counsel for the appellant with regard to non-making out of a case under Section 376(2)(g), I.P.C. after acquittal of other two accused persons. A perusal of records show that while initially three persons including the present appellant were charge-sheeted and stood trial; however, in the trial, the two other persons, namely, Gurubha Murmu and Ramesh Murmu have been acquitted. In such background, following the decision of the Supreme Court in the case of Rajesh v. State of Goa reported in (2003) 11 SCC 736, this Court has no hesitation to hold that the instant case cannot be termed as one of gang rape as other two accused persons have been acquitted. In that case like the present case, in view of acquittal of co-accused, the Supreme Court held that the said case cannot be a case of gang rape but would be a 6 case of rape simplicitor. Thus, sub-clause (g) of sub-section (2) of Section 376, I.P.C. goes out of picture. Now, we have to see whether the evidence on record justifies/proves the allegation of rape. In order to appreciate this, we have to refer to Section 375, I.P.C., which is quoted hereunder:
"375. Rape. - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First. - Against her will.
Secondly - Without her consent.
Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. - With or without her consent, when she is under sixteen years of age.
Explanation. - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception. - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
A perusal of the above would show that in order to convict of a person for having committed the offence of rape following things are to be proved:
(i) There is sexual intercourse between man and woman, 7
(ii) Such sexual intercourse must be under circumstances falling under any of the six clauses of Section 375, IPC,
(iii) The woman concerned is not the wife of the accused & if wife, she is below 15 years of age.
8. In order to see whether above ingredients are proved, this Court has to scan the evidence of P.Ws.3,5 & 9 keeping in mind well settled principle that conviction in a case of rape is possible on the basis of sole testimony of the victim if such testimony is reliable and inspires confidence.
9. P.W.5 in her examination-in-chief has stated that at the relevant time she and her husband had come to Gandibed village in search of labour work during harvesting and they were staying in the house of the appellant. On the date of incident, i.e., during evening hour of 15.11.2008 at 7.00 P.M. while her husband had gone with the tractor and she was in the house of the appellant; the appellant informed her that her husband was lying in a drunken state at Hatpada and asked her to accompany him to that place. Accordingly, she went with the appellant and found her husband in a normal condition and not under influence of liquor. Her husband asked her about the reason of her coming and told her to go back home with the appellant. While the appellant and P.W.5 were returning, on the way, the appellant purchased a liquor pouch and forced her (P.W.5) to take the liquor. After taking liquor, she felt intoxicated. Thereafter, the appellant took her in a different route and ultimately took her inside a half 8 constructed thatched-roof mud house. There, the appellant made P.W.5 naked and laid her on the ground and forcibly committed rape on her despite her objection and despite her giving him a push. But as she was intoxicated, she could not resist him. After committing rape on her, the appellant shut her mouth and called two acquitted persons, namely, Gurubha Murmu and Ramesh Murmu, who reached there and forcibly committed rape on her one after another. After committing rape, both the acquitted persons went away. After being raped, she lost her sense and at about 3 A.M. in the morning she regained her sense and found herself in naked condition by the side of the appellant. She put on her saree and came back to house of the appellant alone. On account of rape, she sustained injuries on her back, knee joint and on left hand. After coming back, she could not find anybody in her house and waited for her husband. While waiting for her husband, the appellant came there and offered her money to leave the area. She refused to accept the offer and waited for her husband. At about 11.00 A.M. of 16.11.2008, when her husband arrived, she (P.W.5) disclosed the incident to him. After hearing the incident, her husband refused to keep her as his wife. Further, when P.W.5 asked him to accompany her to the Police Station, though initially reluctant; he accompanied her to Khaira Police Station and on her request one person scribed the F.I.R. at Police Station. Police sent her for medical examination. In her cross-examination, she stated that 9 when she was taken to the spot, she was intoxicated and was walking abnormally. When she was being taken to the spot, which is situated in front of a Bank, though initially, she stated that she had seen some persons in front of the Bank, however, in the next breath, she stated that she had not seen any persons in front of the Bank. While the appellant was taking her to the spot, she told him to leave her as he had accepted her as his daughter. According to her, the appellant committed sexual intercourse twice with her, which was continued for about one hour. Thereafter, the two acquitted persons committed rape on her one after another for about 30 minutes. When the appellant pushed her into the spot, she had shouted. But while the appellant was committing rape on her, she could not shout. All the three persons, according to her, committed sexual intercourse for about two hours. During that two hours, she never shouted for any help. She further stated that though she was reluctant to go with the appellant, however, she did not run away and also that while passing by the Bank, she had not called the persons, who were present in front of the Bank. Initially, when the appellant removed her saree, she objected and shouted once but the appellant gave her a push and she fell down facing onwards. Thereafter, she did not shout. She has also stated that she did not try to run away from the spot and did not try to bite the appellant while he was committing rape on her except giving him a push. While the appellant was committing rape, he had pressed his 10 both hands on her hands and kissed her. Place of incident was a rough surface and her yellow colour saree was stained with blood. At that point of time she was wearing a yellow colour saree, one white colour saya and one red colour blouse. Such saree and saya were seized by the police. She further stated that she was examined by the police on the date of lodging of the F.I.R. She denied the suggestion that she had not stated to the police that as she was intoxicated she could not resist the appellant and that the appellant had offered her money to leave. She denied the suggestion that the appellant & Ramesh Murmu had not committed rape on her and that she was deposing falsehood.
10. P.W.3, who examined P.W.5 on 19.11.2008, i.e., almost four days after the occurrence, has stated that she did not find any external injuries on the person of P.W.5 and her private parts gave a normal look. She did not find any staining, bleeding or matting on pubic hair and she did not find any foreign substance on her pubic hair. Hymen was completely absent with surrounding radiating fibrous tears. It admitted two fingers easily. On pathological examination of vaginal swab, she did not find any dead or alive spermatozoa. As per her opinion, there was remote signs of sexual intercourse but sexual assault could not be ruled out. P.W.5 also stated before her that she had already changed her clothings and used toilets and bathed repeatedly. In her cross-examination, P.W.3 11 stated that in case of forcible sexual intercourse by more than one person to a lady, there might be injuries on her private parts. If rape is committed on a lady on a rough surface, there must be injuries on the person of the lady.
11. P.W.9, who happens to be the 1st Investigating Officer, admitted Ext.10 to be the F.I.R. Ext.10 was proved by P.W.8. In his deposition, P.W.9 has stated that he seized the wearing apparels of P.W.5, i.e., saya with semen stain and light yellow colour saree in presence of witnesses and accordingly, seizure list vide Ext.5 was prepared. He visited the spot and noticed mark of violence and found one pair of green and white colour Chapal of P.W.5 and one pair of blue colour Chapal alleged to be belonging to the appellant. He seized both the pairs of Chapals. The seizure of said Chapals were witnesses by P.W.1 and the seizure list was marked Ext.11. He arrested the appellant on 18.11.2008 and sent him for medical examination vide medical requisition under Ext.13. He also sent P.W.5 for medical examination vide Ext.14. On 27.2.2008, he handed over the charge of investigation to the O.I.C., Khaira Police Station on his retirement. In his cross- examination, he stated that he has not examined P.W.8. she has not shown the pair of Chapal either to the appellant or P.W.5. He denied a suggestion that he has not noticed violence at the spot. However, with reference to P.W.5 he made it clear that she never stated before him that as she was intoxicated, she could not resist and about giving a 12 push to the appellant. He also made it clear that P.W.5 has not stated that the appellant offered money to her, which was refused by her and after hearing the incident, her husband refused to keep her as his wife. On further cross-examination, he made it clear that P.W.5 has not stated before him that the appellant forced her to take liquor but she had only stated that the appellant gave her liquor to drink.
12. A collective analysis of evidence of P.Ws,3,5 & 9 would make clear that certain parts of deposition of P.W.5 cannot be believed on account of contradictions like her depositions relating to she being forced to take liquor, she giving a push to the appellant during rape, she being offered money by the appellant and refusal of her husband to keep her as wife. But that she felt intoxicated after taking liquor has been reiterated by her in her cross-examination. In her cross- examination, she clearly stated that on being intoxicated, she was walking abnormally. Similarly, her objection to rape as stated in Paragraph-3 of examination-in-chief has been reiterated in her cross- examination. In her cross-examination she has stated that "x x x Initially when accused Rama Hansada removed my saree, I objected, saying that how he could do the same being accepted me as his daughter. Thereafter, I shouted once. x x x". With regard to actual commission of offence while in examination-in-chief, P.W.5 stated that "x x x accused Rama Hansada made me naked and laid me on the ground and forcibly committed rape on me. x x x"; in cross- 13 examination, she has reiterated that "x x x Accused Rama Hansada committed sexual intercourse twice on me and it continued for about one hour. x x x x When the accused Rama Hansada pushed me into the spot house, I shouted. x x x". Thus, notwithstanding some contradictions, the version of P.W.5, a tribal lady relating to forcible commission of the offence of rape on her by the appellant remains undemolished. In other words, the core prosecution story relating to rape committed against the will of P.W.5 and without her consent remains intact. The various contradictions do not shake the core prosecution story as deposed by P.W.5. Her various statements such as not shouting for help while rape was being committed, her not trying to run away from spot and not biting the appellant while rape was being committed have to be appreciated in the undisputed background of her intoxicated state after taking liquor. Once this background is kept in mind, there remains nothing unnatural about the above noted behavior of the appellant. Further P.W.3 has made it clear that though signs of sexual intercourse is remote but she has not ruled out the sexual assault. Further one should not forget the fact that P.W.5 was made to leave her house (which ultimately led to rape) by the misleading and false statement of the appellant that her husband was lying drunk at a distance place and asking her to accompany him to that place. All these show evil intention of the appellant. Thus, a holistic view of the matter would be that though 14 she initially objected and shouted, but later she could not do anything on account of intoxication. With regard to non-existence of external injuries on the body of P.W.5 as found by P.W.3, nothing much can turn on that as there was great delay in carrying out the medical examination of P.W.5. It may be noted here that while the occurrence took place on 15.11.2008, P.W.5 was medically examined only on 19.11.2008. Further, P.W.3 has nowhere opined that even if there is great delay in medical examination of the victim, still then the external injuries can be easily discernible. For all these reasons, the submission of the learned counsel for the appellant relating to this being a case of sexual intercourse on consent merits no acceptance and is liable to be rejected. Similarly non-connection between seminal stain appearing in saya and lungi cannot be a decisive factor for rejecting the testimony of the victim, i.e., P.W.5, when the core prosecution story as narrated by her relating to commission of rape remains undemolished. Moreover, it may be noted here that though the occurrence took place on 15.11.2008, the relevant saya and lungi were forwarded on 13.3.2009 vide Ext.8 for forensic examination. Ultimately, the chemical examination report under Ext.9 was sent on 28.1.2010. Thus, there was great delay in sending the specimen. Further, there exists no reason why a married lady like P.W.5 would raise false accusation of rape in a society like ours affecting her own image. In fact she has clearly denied the suggestion relating to false 15 implication of appellant. Thus, the learned trial court has rightly come to a conclusion that a woman would not foist rape charge with a stranger unless clear motives come out from the evidence. Further, P.W.2 the doctor, who examined the appellant on 20.11.20008 has stated that he found nail scratch mark on back of the appellant and such injury was suggestive of forcible sexual intercourse.
13. Thus, the prosecution has succeeded in proving that there was sexual intercourse between the appellant and P.W.5 and such sexual intercourse which was clearly against her will and consent and there is no doubt that P.W.5 is not the wife of the appellant. For all these reasons, this Court does record a finding that P.W.5 was ravished by the appellant and accordingly finds the appellant guilty under Section 376(1), IPC. It appears from the records and particularly from the statement recorded under Section 313, Cr.P.C. of the appellant that he was aged about 60 years on 7.6.2011. Therefore, at present, he must be around 66 years of old. The minimum sentence prescribed under Section 376(1), I.P.C. is seven years. Here the appellant has already undergone incarceration for more than seven years. In such background, keeping in mind the age of the appellant, this Court reduces the sentence of the appellant to the period already undergone. Thus, in the net, while setting aside the conviction of the appellant under Section 376(2)(g), I.P.C., this Court convicts him under Section 376(1), I.P.C. and sentences him to the period of incarceration which 16 he has already undergone. In so far as punishment of fine is concerned, the learned trial court has not imposed the punishment of fine taking into account the economic condition of the appellant. However, with regard to such condition, there exists no evidence on record. In such background, this Court imposes on the appellant a fine of Rs.500/- (Rupees Five Hundred). In case, the appellant fails to pay the same he shall undergo rigorous imprisonment for a further period of five days. The sentence is accordingly modified.
14. It appears from the evidence on record that P.W.5 was a young woman of 23 years at the time of rape. Thus, P.W.5 has suffered indignity and mental trauma at a very young age despite being a married lady which might have also taken a toll on her married life. In such background, this Court is of the opinion that proper compensation should be paid to P.W.5 after due enquiry by District Legal Services Authority, Balasore in accordance with law as per the Victim Compensation Scheme. The entire exercise for this purpose should be completed within the time stipulated in the Scheme. Copy of this judgment be sent forthwith to the District Legal Services Authority, Balasore for compliance.
The Jail Criminal Appeal is disposed of.
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(Biswajit Mohanty, J.) High Court of Orissa, Cuttack Dated 16th August, 2017/ amit