Dillu @ Dilip Kumar Swain vs State Of Orissa

S.K.Mishra, J

The convict-appellant has been convicted for the offence under Section 376(2)(g) of the Indian Penal Code (for short ‘Penal

Code’) read with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo

imprisonment for life by the learned Additional Sessions Judge, Bhubaneswar in C.T. Case No.1/63 of 2004, as per the judgment dated 19.01.2012.

The facts of the case, bereft of unnecessary details, are that the informant, being a Scheduled Caste parentless girl, was working as a labourer in a

stone quarry of Kantia and was staying with some of her villagers, at a nearer hamlet Budhabapada, in a rented house of one Bhaga Behera. In the

night of 06.09.2003, when she was sleeping in her house, at about 1.00 A.M. both the accused persons Dilu and Manua entered inside the house and

in order to satisfy their physical lust, forcibly ravished the victim one after another and left the place posing threat with dire consequence in case she

will divulge the fact to anyone. The victim sustained injuries on sensitive parts of her body due to the forced act of the accused persons. Thereafter,

she divulged the incident before her employer and along with him, she went to police station and lodged F.I.R. Accordingly, after registration of the

case, police investigated into the matter, examined the victim as well as the witnesses, visited the spot and conducted necessary seizure of material

object and upon completion of investigation, charge sheet was submitted on 03.01.2004 against both the accused persons.

The accused persons took the plea of complete denial and false implication.

In order to substantiate the case, prosecution examined as many as 19 witnesses and relied upon documents under Ext.1 to Ext.15. Out of the 19

witnesses, P.W.1, the prosecutrix (name withheld) is the victim-informant, P.W.2 one Prakash Mangaraj who accompanied the informant to the police

station. P.W.7, Dr. Pravakar Sahoo and P.W.13, Dr. Manaranjan Jena are the Medical Officers, who examined both the accused persons. P.W.18,

Harish Chandra Pandey and P.W.19, Ratnakar Das are the police personnel who conducted their part of job so far as the investigation is concerned.

Out of the remaining witnesses, some of them are witnesses to the seizure of wearing apparel of the victim and accused persons, some though

examined as independent witnesses do not support the case of the prosecution. P.W.9, Premananda Baliarsingh is a police constable who

accompanied the victim to hospital, brought the seized physical clues of the victim.

The accused persons adduced no oral and documentary evidence.

Relying upon the evidence of P.W.1, the prosecutrix victim and P.W.2, her employer, together with the contents of the medical examination report

as well as doctors’ opinion and accepting the statement of the prosecutrix recorded under Section 164 of the Code as public document and

substantive evidence, the learned Additional Sessions Judge, Bhubaneswar, even though most of the prosecution witnesses have turned hostile and the

prosecutrix has not named anybody in the Examination-In-Chief, came to the conclusion that prosecution has proved its case beyond reasonable doubt

against the sole appellant and convicted him under Section 376(2)(g) of the Penal Code read with Section 3(ii)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default to

undergo rigorous imprisonment for one year. However, she acquitted the co-accused Manua @ Manoj Kumar Behera holding that there is no

evidence against him.

Learned counsel for the appellant submits that the approach adopted by the learned Additional Sessions Judge, Bhubaneswar, in this case, is not

appropriate and that she has relied upon previous statement like the statement recorded under Section 164 of the Code which is not substantial

evidence and come to the conclusion that the appellant has committed the offence of gang rape. He further submitted that the learned Additional

Sessions Judge, Bhubaneswar should have acquitted the sole appellant along with co-accused of the offence under Section 376(2)(g) of the Penal

Code read with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and should have taken cognizance of

offence of perjury committed by prosecutrix. He, therefore, submitted that the appeal should be allowed and conviction should be set aside.

Ms. Saswata Patnaik, learned Additional Government Advocate, on the other hand, submitted that in this case, the learned Additional Sessions

Judge, Bhubaneswar was aware of the evidences available on record and after taking into consideration, the judgment of conviction has been passed

for which it should not be set aside. As far as the issue of committing perjury by the prosecutrix-P.W.1 is concerned, the learned Additional

Government Advocate submitted that the prosecutrix belongs to the Scheduled Tribe category. She is illiterate and earns her livelihood by manial

labour. She has been raped by two persons. Therefore, the learned Additional Government Advocate submitted that initiation of a proceeding against

this victim of rape would amount to harassment of the victim.

A careful examination of the evidence of the prosecutrix P.W.1 reveals that she has stated that she has been raped on the date and time alleged.

However, she has not implicated the appellant. She was cross-examined by the prosecution after obtaining permission from the court under Section

154 of the Evidence Act. She stated that her statement was recorded by the Magistrate under Section 164 of the Code on 12.09.2003 but she does not

remember what she stated before the Magistrate. Thereafter, she denied all the leading questions put by the prosecution and stated that she has been

raped by two persons in the night of occurrence. She has stated in her Section 164 statement that she could identify one of them i.e. Dillu @ Dilip

Kumar Swain but could not identify the other person. The learned Additional Sessions Judge has not taken this statement as a substantial evidence or

direct evidence, but she has taken it as a circumstance. Together with such circumstance and statement of P.W.2 and medical report marked as

Exhibit-10 without examination of the doctor learned Additional Sessions Judge has come to a conclusion that prosecution has proved its case under

Section 376(2)(g) of the Penal Code and Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act beyond

reasonable doubt. The approach adopted by the learned Additional Sessions Judge is clearly not tenable. It is no more res integra that statement

recorded under Section 164 of the Code is only a previous statement. It is not a substantial piece of evidence. Such a previous statement can be used

both for contradiction and corroboration. However, statement or evidence given in the court in course of trial in the presence of the accused and his

counsel is substantial evidence. Such evidence can be corroborated by the prosecution relying upon the statement recorded under Section 164 of the

Code to the evidence of the prosecutrix deposed in the court. The statement recorded under Section 164 of the Code can supplement the evidence

given in the court but it cannot supplement it.

In that view of the matter, we are of the opinion that there is no substantial evidence in this case and only on the basis of retracted statement made

under Section 164 of the Code, the learned Additional Sessions Judge should not have convicted the appellant. Hence, the conviction requires to be set

aside.

As far as the argument advanced by Mr. Ashok Kumar Sarangi, learned counsel for the appellant regarding initiation of perjury proceeding against

the prosecutrix is concerned, as in the meantime almost 8 years have elapsed, the prosecutrix belongs to a very unprivileged class and she is an

illiterate lady depending mainly on manial labour to eke out her livelihood, we are not inclined to initiate any perjury proceeding against her.

On the basis of aforesaid discussions, we come to the conclusion that the prosecution has not proved its case beyond all reasonable doubt. It has

failed to establish a case under Section 376(2)(g) of the Penal Code and Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act. Hence, the appellant is entitled to an order of acquittal.

In the result, the appeal is allowed. The impugned judgment of conviction and consequent sentence passed by the learned Additional Sessions

Judge, Bhubaneswar in C.T. Case No.1/63 of 2004, convicting the appellant-Dillu @ Dilip Kumar Swain under Section 376(2)(g) of the Penal Code

read with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentence to undergo imprisonment for life,

are hereby set aside. The petitioner is acquitted of the offence under Section 376(2)(g) of the Penal Code and Section 3(ii)(v) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act. It is stated that the appellant is in custody. The appellant be set at liberty forthwith, if his

detention is not required in any other case.

Accordingly, the CRLA is disposed of.

The T.C.Rs be returned back to the trial court forthwith.

As the restrictions due to resurgence of COVID-19 are continuing, learned counsel for the parties may utilize the soft copy / downloaded copy of this

order available in the High Court’s website or print out thereof at par with certified copies, subject to attestation by concerned Advocate along

with seal, in the manner prescribed, vide Court’s Notice No.4587, dated 25.03.2020 as modified by Court’s Notice No.4798 dated 15.04.2021.

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