Dismissed

Dola@Dolagobinda Pra v. State

Orissa HC10 May 2017CRA/267/1992

Case brief

AI extract

What is this about?

High Court dismissed criminal appeal against conviction and sentence for rape. Court held that victim's testimony was trustworthy and reliable despite lack of corroboration from husband. Injuries to cheek and broken glass corroborated the incident. Sexual assault on a married woman requires healed mucosa and special medical evidence.

What did the court decide?

Criminal appeal dismissed. Impugned judgment of conviction and sentence confirmed. Criminal Reference sent back forthwith.

Dola@Dolagobinda Pra Vs State — Medical Negligence | Orissa HC (2017)

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ORISSA HIGH COURT, CUTTACK

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CRA NO. 267 OF 1992

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From the judgment dated 20.07.1992 passed by Shri S.K. Mohapatra, Asst. Sessions Judge, Bonai in S.T. No.65/2 of 1991-92.

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Dola @ Dolagobinda Pradhan & another .....…. Appellants -VersusState of Orissa ……… Respondent For appellants - M/s. D.P. Pattnaik, Advocate & his Associates For respondent - Mr. A.N. Das, Additional Government Advocate

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PRESENT:-

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THE HON’BLE SHRI JUSTICE SATRUGHANA PUJAHARI

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------------------------------------------------------------------------------------Date of Judgment : 10.05.2017

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S.PUJAHARI, J. The appellants in this appeal challenge the

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judgment of conviction and order of sentence dated 20.07.1992 passed by the learned Asst. Sessions Judge, Bonai in S.T. No.65/2 of 1992-92 holding both of them guilty under Section 376(g) of the Indian Penal Code, 1860 (for short “the IPC”) and sentencing each of them to undergo rigorous imprisonment for ten years.

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2. The factual matrix of the prosecution case, in short compass, is that on 24.03.1990 around 8 p.m. when the victim was enroute home from her road side “Eating House” near Khuntagaon Weekly market, it is alleged no sooner she reached

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Talanali road, the appellants apparently concealed behind a “Mahula tree” suddenly emerged and finding her alone obstructed her movement, gagged her mouth by a napkin and in an erotic impulse they physically carried her to a road side date-palm clump where appellant – Akshya Pradhan at a knife point threatened her to kill if she dare to shout. Trembling in fear, the victim could not venture to raise alarm. The appellants laid her on the field. While appellant – Dolagobinda Pradhan pulled her hand upto head and gagged her mouth, appellant - Akshya Pradhan raised her legs and inserted his male organ inside the female genitalia of the victim, bite her cheeks and ravished her. After satisfying his sexual lust, appellant – Akshya Pradhan caught hold the victim by her arms to facilitate the appellant – Dolagobinda Pradhan to commit such bestial act. Being satisfied with their sexual appetite, the appellants left the place leaving the victim at high and dry. The crestfallen victim in paroxysm of despair and frustration rushed to her house at village- Nuadihi and immediately on reaching home narrated the entire horrendous episode before her husband. She also shown her torn inner garments worn at the time of occurrence and the injuries she sustained on her cheeks to her husband. The Police Station being at a considerable distance and that being night hours, on the following day at around 11

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a.m. the victim and her husband reached Police Station and

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lodged F.I.R. (Ext.1). P.W.7 took up investigation of the case, seized the wearing apparels of the victim worn at the time of incident and her broken glass bungles as per seizure list (Exts.5 and 6 respectively). The victim was referred for medical examination at C.H.C., Lahunipada, the appellants were arrested and after completion of due investigation, charge-sheet was submitted. The case was committed to the Court of Sessions in accordance with law where they pleaded not guilty to the charge. As such, in order to prove its case, the prosecution examined 8 witnesses, exhibited 14 documents including the medical reports, Chemical examination report and also produced Material Objects viz. M.Os.I to V. No evidence, however, adduced on behalf of the appellants who have taken a plea of false implication on account of animosity with the husband of the victim.

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3. The learned counsel for the appellants contended that the husband of the victim having not supported the case of the prosecution and the appellants and the husband of the victim being in loggerheads on some issue or others and admittedly, on the morning of that alleged date of occurrence, the appellants and the husband of the victim having fought with each other, no implicit reliance can be placed on the

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uncorroborated testimony of the victim who had a strong motive to implicate the appellants in serious crime.

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4. On the contrary, the learned Addl. Government Advocate submitted that the evidence of the victim cannot be tested with suspicion. She having deposed a factum of rape affecting her own chastity, that does not render testimony of the victim unreliable. Hence, this criminal appeal is devoid of merit, submitted by the learned Addl. Government Advocate.

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5. To appreciate the rival contentions raised at the Bar, I have carefully scrutinized the evidence of the victim and other witnesses examined on behalf of the prosecution as well as documentary evidence brought on record keeping in view the settled law on the subject as held in the case of Bharwada Bhoginbhai Hirjibhai vrs. State of Gujarat , AIR 1983 S.C. 753, wherein the Apex Court in paragraphs-10 & 11 have held as follows;

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“ 10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :- (1) A girl or a woman in the tradition bound non-permissive

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society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred, (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands’ family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent.

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11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the

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form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hang-over). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of selfpreservation. Or when the ‘probabilities factor’ is found to be out of tune.”

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Here, the victim is a married lady having two children, the elder being around 7 years old. She has given a detail narration of the events. She in this regard stands corroborated by the version indicated by her in the F.I.R. lodged at her earliest opportunity. She has stated as to how she was obstructed at a lonely place at that hour of the night in a rural area and how she was forcibly taken behind a road side date palm clump where she was subjected to rape by the appellants. Her evidence also revealed that the appellants inserted their male organs inside her female genitalia and how despite her visible reaction and struggle she could not extricate herself from the two able bodied rapists. Her

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evidence also disclosed that while committing sexual assault, the appellant – Akshya Pradhan bit her cheeks and how her wearing glass bungles got broken when he attempted to avoid sexual assault on her. It is also stated that her ‘Saya’, M.O.II got stained with semen. Her evidence also revealed that immediately on arrival home she narrated before her husband how she was sexually ravished. The Police Station at Lahunipada being at a distance of 20 K.ms. from her village she could not proceed to the Police Station in that hour of night and on the following morning she proceeded to Police Station accompanied with her husband and lodged report (Ext.1). She has identified her wearing apparels and broken glass bungles (M.Os.I to IV). The victim was subjected to some searching and incisive crossexamination where she almost remained firm and the defence failed to demolish her testimony on oath so far sexual ravishment is concerned. The defence has elicited the topography of the area where she was sexually assaulted. However, presence of person, if any, at the relevant time not brought on record despite such searching cross-examination. That apart, she made struggle to get rid from the clutches of the appellants also brought in course of such examination of the victim where broken glass bungles lend assurance to her version. Turning to the evidence of the husband of the victim,

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who is examined as P.W.3, I find he has deposed as to why he left the eating house at 6 p.m., with his children leaving his wife (victim) to handle the business in that evening. His evidence also revealed that around 8 p.m. her wife reached home weeping and being asked she disclosed an occurrence committed against her. However, this witness as reflected in his deposition could not narrate what he heard from his wife because he felt ashamed to speak what he heard from his wife. He has also stated to have accompanied his wife to the Police Station on the following morning when she lodged F.I.R.. With the permission

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of the Court, this witness was cross-examined by the prosecution where he has stated that on the date of occurrence during morning hour the appellants along with a group of persons had assembled in his hotel and assaulted him when he denied to shift his hotel from that place. Admittedly, this witness had sustained injury in his left eye as evident from the evidence of the doctor (P.W.2) who had the occasion to examine this P.W.3 on 24.03.1990 at Lahunipada PHC and proved his report, Ext.2. P.W.4 is the Medical Officer of C.H.C., Lahunipada. He had examined the victim on police requisition on 25.03.1990 where he noticed 4 numbers of bruises of size ½ cm on the left cheek and another 4 numbers of bruises of such size on the right cheek of the victim. He has opined that the

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injuries were caused within 24 hours and could have been caused by teeth bite. Ext.4 is the said report. Nothing substantial elicited in the cross-examination to discard the opinion of the Medical Officer. It is consistent with the oral evidence of the victim that while committing rape, appellant – Akshya Pradhan bit her cheeks. The husband of the victim having not supported the oral testimony of the victim in material particulars and she having not sustained any injury on her vagina, the learned counsel for the appellants strenuously contended to discard the testimony of the victim in this peculiar facts and circumstances of the case where she apparently having a motive to seek revenge against the appellants, particularly when the evidence of the victim is not free from blemish. In this regard, he has drawn the notice of this Court to the evidence of the victim indicating the fact that the victim’s evidence with regard to the identification of the appellants was unworthy of credence as she stated that she could not identify their faces, coupled with the fact that no spermatozoa was found evidencing the recent sexual intercourse and also there was no injury on her person. It has been further submitted that no doubt, solely relying on the version of the victim, a conviction can be recorded, but the same must be reliable. When the evidence of the victim in this case is not reliable, coupled with

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the fact that she had a motive to implicate the appellants, the trial court committed gross error in appreciation of the evidence on record to record a conviction believing the version of the victim. In this regard, the learned counsel for the appellants has placed reliance on a decision of this Court in the case of Manas Ranjan Thakur vrs. State, (2001) 20 OCR 176, wherein this Court has held that “It is also well settled in law that absence of injury on the private part of the victim or stains of semen or spermatozoa is of no consequence and cannot negative the offence of rape, but where the medical evidence is to the effect that there was no sign of recent intercourse or injury on the girl’s private part and where it is clear that the prosecutrix is not a reliable witness or is a willing party to sexual intercourse, it would not be safe to convict the accused, on her uncorroborated testimony.

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6. So far as the contention with regard to the identification is concerned, no doubt in that particular event she could not have clearly identified the faces of the appellants, but she actually having acquaintance with them inasmuch as in her evidence she stated that both the appellants having their “eating house” near the “eating house” of the victim and about the incident preceding the aforesaid, it cannot be said that she had not identified the appellants. Her saying that she had no prior

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acquaintance cannot be interpreted to understand that she did not know them at all as in her evidence earlier she has clearly stated about the role of the appellants in the incident and the incident that has occurred. So, the contention advanced with regard to identification of the appellants is of no consequence, more so when the absence of acquaintance must have been answered by the victim with regard to closeness of her with the appellants. When the appellants are known and the occurrence had taken place in the darkness of the night, there is no manner of doubt that the victim’s identification with regard to the appellants is acceptable one.

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7. Coming to the next contention that absence of noncorroboration from the injuries on the private part or person of the victim is concerned, it cannot be lost sight that the victim was having two children acquainted with sexual life. So, absence of injury on the female organs of the victim does not affect her testimony with regard to the sexual assault. In this regard, a reliance can be placed on a decision of this Court in

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the case of Lakhia @ Laxmidhar Sahu vrs. State, (1997) 12

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OCR 259, wherein it has been held as follows :-

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“…….It must also be remembered that the reaction of the vaginal mucosa to a penetrating foreign body is to lubricate, and therefore even in non-consenting intercourse there will be a certain amount of lubrication produced during the act, even if lubrication was lacking on initial penetration. The

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frequently repeated myth that the vagina will remain dry in non-consenting intercourse with the resulting production of serious abrasion and bruising is entirely untrue.

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In the case of sexually experienced women, and those who have born children, signs of even the most minor vaginal injury may well be absent.

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This Court in the case of Dinabandhu Behera vrs. State of Orissa, reported in (1995) 8 OCR 123 , has held as follows :-

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“Absent of injuries on the person of the victim may not be fatal to the prosecution and corroborative evidence may not be an imperative component of judicial credence in rape cases.”

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Thus absence of injury cannot be a factor to rule out the allegation of rape.”

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8. It is also well settled law that if the version of the prosecutrix in her evidence is believable, the basic truth in her evidence is ascertainable and it is found to be credible and consistent, there is no law that itself cannot form the basis of conviction. Corroboration, as has been often held by the Apex Court and this Court, is not a sine-qua-non for a conviction in a rape case. It has been repeatedly pointed out by the Apex Court that the evidence of the victim of a sexual assault stands at par with the evidence of an injured witness and is entitled to a great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factor” does not render it unworthy of

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credence, as a general rule, there is no reason to insist on corroboration, except from the medical evidence, where, having

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regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown-up and married woman gives evidence on oath in Court that she was raped, it is not proper judicial approach to disbelieve her outright, if only because of absence of corroboration from the oral testimony of her husband and because of absence of medical evidence in the facts and circumstances like the present one where it is brought on record that the appellants having also a hotel near Weekly market and they having threatened the victim’s husband to shift his hotel from that place but he having not succumbing to their pressure did not pull down the shutter, he was assaulted on that very morning. It is probable as well as reasonable that either out of fear of the appellants of further retaliation if he deposed against them in support of his wife, or he is an emotional and sentimental person who does not like to further stake the reputation of his wife, he having a second wife who is no other than the sister of the victim living under the same roof, he might not have deposed in support of his wife’s version. This probability factor is not totally inconsistent with the version of the victim and does not render it unworthy of credence. No doubt abstract or hypothetical question like why a prosecutrix would implicate innocent person is not conclusive to guilt of the accused. I have given my anxious consideration to

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the probability factors in this peculiar circumstances, but do not find any motive of falsely implicating the appellants which is not apparent on record. The totality of the circumstances do not disclose any strong motive to falsely involve the persons charged. A woman will not ordinarily stake her reputation by leveling a false charge of rape which tends to spoil her own chastity. In such circumstances, when a woman comes forward and says that she was raped and when nothing substantial elicited to doubt her testimony, her evidence should carry the same weighed as is attached to the evidence of an injured witness who is victim of violence. A woman in rural surroundings like the victim would attach maximum importance to her chastity and would not easily be a party to facilitate her husband to continue business at that place which otherwise would jeopardize her reputation and lower her in the esteem of others when the record reveals that she managed business in their eating house throughout the day. Though her evidence appears seemingly incredible on the surface, but it is inherently probable and is not studded with any falsehood. There is sufficient corroboration to her testimony from the medical evidence. The victim having sustained injuries on her cheek and when her glass bungles broken while she was struggling, those are intrinsic corroboration and symbol of

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struggle. She has also identified her wearing apparels and her broken glass bungles. Probability factors do not render her evidence unworthy of credit on any count. The learned trial court has discussed all such issues thread are in its long judgment and I find the conclusion reached is in accordance with law and proved fact and does not call for any second opinion.

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9. Consequently, I find the victim being a trustworthy and when her evidence inspires confidence and particularly when there is no basic infirmity and probabilities factor do not render it unworthy of credence, there is no reason to discard her testimony only because her husband for some reason or others expressed his reservation to describe in details as to what the victim had narrated before her in that fateful evening. The immediate conduct of the victim in disclosing about the incident before her husband is also admissible under Section 6 of the Indian Evidence Act as res gestae. It is a spontaneous statement connected with the fact in issue and there was no time interval for fabrication and concoction which has been considered at length by the learned trial court. The plea of the appellants was a plea of despair not worthy of credence. After all, it is appellants and not the victim of sex crime who is on trial. ‘Rape’ is not only a crime against the person of a woman it

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is a crime against the entire society. It despairs the entire psychology of a woman and pushed her into a deep emotional crisis. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape looks down upon her in duration and contend. In such a situation when a woman like the victim comes forward and depose, there is built-in-assurance that the charge is genuine rather than fabricated. Testimony of the victim inspires confidence, on the basis of which alone, conviction can be safely sustained.

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10. Consequently, for the foregoing reasons, I find no merit in this criminal appeal and, accordingly, it stands dismissed. The impugned judgment of conviction and order of sentence recorded by the learned Asst. Sessions Judge, Bonai are hereby confirmed.

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L.C.R. received be sent back forthwith along with a copy of the Judgment.

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S.Pujahari, J.

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……………………..…

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Orissa High Court, Cuttack, The 10^th day of May, 2017 /MRS

Dola@Dolagobinda Pra v. State

Case brief

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Dola@Dolagobinda Pra v. State

Case brief

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