Orissa High Court
Basudev Pujari And Others vs State Of Orissa on 23 September, 2013
Author: B.K. Patel
Bench: B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
CRLA No.497 of 2006
From the judgment and order dated 21.9.2006 passed by Sri G. Ch.
Panigrahi, Additional Sessions Judge, Jeypore in Crl. Trial No.42 of 2005
(Crl. Trial No.127 of 2005 of the Sessions Judge, Jeypore).
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Basudev Pujari and others ...... Appellants.
- Versus-
State of Orissa ...... Respondent.
For Appellants : M/s J.R. Dash, K.L. Dash,
D.N. Patnaik and M. Rout
For Respondent : Government Advocate.
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PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of hearing-18.9.2013 : Date of judgment- 23.9.2013
B.K. PATEL, J.By the impugned judgment and order passed by learned Additional Sessions Judge, Jeypore in Crl. Trial No.42 of 2005 (Crl. Trial No.127 of 2005 of the Sessions Judge, Jeypore) the appellants stand convicted under Section 376(2)(g) of the I.P.C. for having committed gang rape on informant-victim P.W.5. Each of the appellants has been sentenced to undergo R.I. for ten years and to pay a fine of Rs.5,000/- (Rupees five thousands) in default to undergo R.I. for two years. It has also been directed that out of the fine 2 amount, if realized, a sum of Rs.5,000/- (Rupees five thousands) shall be paid to P.W.5 by way of compensation.
2. Prosecution case in brief is as follows:
Occurrence took place on 19.1.2005. Victim P.W.5 is a married woman aged more than 40 years having two children. During the period of occurrence her husband had gone outside for doing labour work. On the date of occurrence at about 8.00 P.M. when P.W.5 was sitting alone on the outer veranda of her house, the three appellants and one Iswar Bhumia, who was being tried as a juvenile delinquent, came to her. When P.W.5 objected to their presence in absence of her husband, the appellants and the juvenile delinquent gagged her mouth and carried her to the backside of her house where they committed rape on her one after another after removing her clothes. Thereafter, they left. Being injured, P.W.5 became senseless. After regaining her sense, P.W.5 narrated about the occurrence to one of her co-villager P.W.1 who came there hearing her crying. After feeling better, the victim went to her parents' village and apprised them about the occurrence. She was taken to village Kusumi for treatment. After getting treatment, the victim went back to her village and reported the incident to P.W.4, the village 'Ganda' and others, and requested them to convene a meeting. However, no meeting was convened. Hence, on 25.1.2005 P.W.5 lodged First Information Report 3 Ext.6, scribed by P.W.6, and submitted to P.W.11, the O.I.C. of Kotpad P.S. P.W.11 registered the case and took up investigation. In course of investigation, P.W.11 visited the spot, effected seizure of articles and examined the witnesses. The appellants and the victim P.W.5 were medically examined by P.Ws.9 and 10 respectively. On completion of investigation, charge-sheet was submitted against the appellants.
3. The appellants took the plea of denial and false implication.
4. In order to establish the charge, prosecution examined eleven witnesses. P.Ws.1, 4, 5, 6, 9, 10 and 11 have already been introduced in course of narration of the prosecution case. Of them, P.W.1 turned hostile. P.W.2 is a witness to seizure of broken bangles from the spot and other articles. P.W.3 is the cousin brother and P.W.7 is the brother of P.W.5 before whom P.W.5 narrated the occurrence. P.W.8 is a police Havildar who assisted the investigating officer P.W.11 with the investigation. Prosecution also placed reliance on the documents marked Exts.1 to 20.
No defence evidence, oral or documentary, was adduced.
5. On an appraisal of evidence on record, the trial court held the evidence of victim P.W.5 to be cogent, credible and trustworthy and also found the evidence of P.W.5 corroborated by the testimonies 4 of post-occurrence witnesses P.Ws.3, 4 and 7; medical evidence of P.W.10; and circumstance of seizure of broken bangles from the spot. Accordingly, prosecution was held to have established the charge against the appellants and the impugned judgment of conviction was passed.
6. Learned counsel for the appellants submitted that in course of her cross-examination P.W.5 admitted that in the night of occurrence she slept in the house of one Asumati who has not been examined by the prosecution. P.W.5 further admitted that she did not disclose regarding the occurrence to said Asumati. In view of such non-disclosure by P.W.5 to the person whom she met immediately after the occurrence, the trial court should not have relied on the evidence of P.W.5. It was further contended that there has been inordinate delay of seven days in lodging the First Information Report. It was also argued that in absence of any injury on the private part of the victim lady as is evident from the testimony of P.W.10, allegation of gang rape made by P.W.5 should have been disbelieved. Alternatively, it was submitted by the learned counsel for the appellants that the appellants have already served more than eight years of rigorous imprisonment. Though they have been directed to serve minimum sentence of imprisonment for ten years, each of the appellants has been directed to pay a fine of Rs.5,000/-. The 5 appellants being poor persons residing in a tribal region, the amount of fine imposed on them ought to be reduced.
7. Learned counsel for the State supported and defended the impugned judgment. It was strenuously argued that evidence of P.W.5 itself is free from any inconsistency and infirmity. There being adequate corroboration to the evidence of P.W.5, there is no scope to interfere with the impugned judgment of conviction.
8. On reappraisal of evidence on record in the light of the rival contentions, it is found that the victim P.W.5 while deposing in court has given a vivid account of the manner in which she was gang raped by the appellants. She testified that when she was sitting on her veranda, the appellants and the juvenile delinquent came there. Thereafter, they caught her legs, gagged her mouth and carried her to the backside of her house. They forcibly removed her clothes and also inner loin cloths. She was laid down on the ground in naked condition. The appellants and juvenile delinquent committed sexual intercourse on her one after another without her consent. After committing rape, all of them left. P.W.5 alleged to have sustained injuries on her back. There was vaginal discharge also caused by forcible sexual intercourse. P.W.5 testified to have narrated the occurrence to P.W.1 when he came there when she was crying. P.W.5 further stated that she went to her father's place on the next day and 6 narrated the entire occurrence to her parents. She was taken to village Kusumi for treatment. On the following Monday after recovery from her injuries, P.W.5 went back to her village with her brother P.W.7 and reported the matter to P.W.4. Despite her request, no village meeting was convened. On the following day she informed regarding the occurrence to her cousin brother P.W.3. P.W.5 deposed to have gone to the police station with P.Ws.3 and 7 and lodged First Information Report. She further testified to have medically examined in course of investigation. P.W.5 also stated regarding seizure of broken bangles from the spot and her wearing apparels. Evidence of P.W.5 has not been discredited in any manner in course of cross- examination. Contents of the First Information Report Ext.6 materially corroborate the evidence of P.W.5. That apart, though P.W.1 turned hostile, evidence of all the three post-occurrence witnesses P.Ws.3, 4 and 7 materially corroborates the evidence of P.W.5 who narrated the occurrence to them. P.W.4 testified that P.W.5 showed him the injuries she had sustained. P.W.7 corroborated the evidence of P.W.5 with regard to her statement to have reported the matter to P.W.4. P.W.10, the medical officer of C.H.C. Kotpad testified to have found multiple linear abrasions on the back side of P.W.5. However, he did not find any sign or symptom of recent sexual intercourse on her. Existence of multiple linear abrasions on P.W.5's back side is 7 consistent with the manner in which P.W.5 alleged the appellants to have committed forcible sexual intercourse on her. P.W.5 in course of her cross-examination admitted that in the night of occurrence she slept in the house of Asumati who happens to be the mother of juvenile delinquent. P.W.5 added that due to fear and shame she did not narrate the occurrence to anybody in the village in the night of occurrence and also the next day. Such conduct of non- disclosure by P.W.5 due to fear and shame is perfectly normal for a woman of P.W.5's background. It has to be borne in mind that P.W.5 is a married woman having two children. After such a ghastly incident affecting her dignity, it is natural that P.W.5 would be in trauma and psychological imbalance. However, having overcome the initial shock P.W.5 had immediately rushed to her parents and disclosed regarding the occurrence. Not only P.Ws.3 and 7 who are her close relations but also P.W.4 supports P.W.5 in this regard. P.W.5 has also given cogent explanation for not having lodged the First Information Report soon after the occurrence. In absence of her husband she went to her parents. Thereafter, she made an attempt to put forth her grievance before the village 'Ganda' P.W.4. Thereafter only she was able to lodge the First Information Report. Under the facts and circumstances of the case particularly considering the tendency of Indian women to conceal sexual assault, delay in lodging the First Information Report 8 on the part of P.W.5 is inconsequential. Absence of sign or symptom of recent sexual intercourse on P.W.5 as deposed by the medical officer P.W.10 also does not affect the veracity of the prosecution case. The occurrence took place on 19.1.2005 and P.W.5 was medically examined on 26.1.2005. Apart from the time gap, the age and marital status of the victim have also to be borne in mind. Despite absence of sign or symptom of recent sexual intercourse, injuries on her person fortifies the allegation of forcible intercourse on P.W.5. Therefore, there is no merit in any of the contentions raised on behalf of the appellants and there is no scope to differ with the finding of the trial court that cogent, credible and trustworthy evidence of P.W.5 has been corroborated by medical evidence and circumstance of seizure of broken bangles. The appellants have rightly been convicted for commission of offence under Section 376 (2)(g) of the I.P.C.
9. While sentencing the appellants to undergo minimum period of R.I. for ten years which may be imposed for commission of offence under which the appellants stand convicted, each of the appellants has been directed to pay fine of Rs.5,000/-. It is not disputed that the appellants belong to economically weaker section of the society and hail from tribal area of Koraput district. In such circumstances, considering the fact that the appellants have served substantial custodial sentence imposed on them, imposition of fine 9 amount of Rs.2,000/- on each of the appellants shall serve the ends of justice.
10. In view of the above discussions, while dismissing the appeal and maintaining the conviction of the appellant for commission of offence under Section 376 (2) (g) of the I.P.C. as well as maintaining the custodial sentence to undergo R.I. for ten years, the sentence to pay fine is modified to the extent that instead of paying a fine of Rs.5,000/- each, each of the appellants shall pay a fine of Rs.2,000/-, in default, each of them shall undergo R.I. for two years. Fine amount, if realized, shall be paid to the victim P.W.5 by way of compensation.
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B.K. Patel, J.
Orissa High Court, Cuttack, Dated the 23rd Sept.,2013/B. Jhankar