Dina @ Dinabandhu Pradhan and Another vs State of Orissa

The appellants Dina @ Dinabandhu Pradhan and Kapi @ Kapila Pradhan faced trial in the Court learned Addl. Sessions Judge, Sambalpur in

Sessions Trial No. 47/21 of 1991 for offence punishable under sections 376/34 of the Indian Penal Code on the accusation that on 04.10.1990 at

about 12 noon at Ganjermal forest, they committed rape on the victim (P.W.1) in furtherance of their common intention.

The learned trial Court found the appellants guilty under section 354 of the Indian Penal Code and accordingly convicted thereunder imposing

sentence on each of them to suffer rigorous imprisonment for a period of two years.

The prosecution case, in short, is that on 04.10.1990 the victim had been to tend cattle towards the river side where both the appellants were

also tending cattle at a nearby place. At about 12 noon, the appellant Dinabandhu came near the victim and told her to allow him to enjoy with her

for some time to which the victim refused. Then the appellant Dinabandhu dragged the victim by holding her hand to a low lying land by the side of

the river. The victim protested and struggled to escape but the appellant Dinabandhu fouled her as a result of which she fell down on the ground.

When the victim raised alarm, the appellant Kapila caught hold of her hand and told her not to shout and shut her mouth by means of Saree which

the victim was wearing. The appellant Dinabandhu first committed rape on the victim and then the appellant Kapila also committed rape on the

victim. After committing rape, both the appellants left the spot and the victim returned back to her home and narrated the incident before her

mother (P.W.2). The victim and her mother approached the Ward member of the village namely Biranchi Pradhan (P.W.3) and told him about the

incident. A meeting was convened in the village and the village gentlemen attended the meeting but since most of the villagers had consumed liquor,

the meeting could not be held on that day. After a few days, the meeting was again held but the appellants did not attend the meeting. The

gentlemen imposed a fine of Rs.300/- on the appellants. The appellants paid the fine amount to the gentlemen but they did not give such amount to

the victim for which on 27.10.1990 the victim went to Katarbaga police station and orally reported the matter before the officer in charge of the

police station namely Abhiram Kar (P.W.7) which was reduced to writing, on the basis of which Katarbaga P.S. Case No. 94 of 1990 was

registered under sections 376/34 of the Indian Penal Code.

P.W.7 took up investigation of the case. He examined the victim and her mother and recorded their statements, visited the spot and seized the

broken pieces of bangles under seizure list Ext.1/2. He examined the other witnesses, arrested the appellants and forwarded them to Court on

29.10.1990. The victim girl was sent for medical examination. The Investigating Officer made certain query to the Medical Officer, Sambalpur. He

received the medical examination report of the victim as well as of the appellants. On completion of investigation, charge sheet was submitted on

23.01.1991 under sections 376/34 IPC.

The defence plea of the appellant Kapi @ Kapila Pradhan is that there was a marriage proposal between him and the victim and since he did

not agree to marry the victim suspecting her character, a false case has been foisted against him.

The defence plea of appellant Dina @Dinabandhu Pradhan is one of denial.

After filing of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure and it was

transferred to the learned trial Court where charge under sections 376/34 of the Indian Penal Code was framed on 09.05.1991. Since the

appellants refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish

their guilt.

In order to prove its case, the prosecution examined seven witnesses.

P.W.1 is the victim. She is the informant in the case.

P.W.2 Gharamani Bag is the mother of the victim and she stated about the disclosure made by the victim on the date of occurrence relating to

commission of rape on her by both the appellants and also about the meeting held in that connection.

P.W.3 Biranchi Pradhan and P.W.4 Sambhulal Pradhan did not support the prosecution case for which they were declared hostile.

P.W.5 Biranchi Narayan Padhi was the Medical Officer, Circle Jail, Sambalpur who examined both the appellants and found them capable of

committing sexual intercourse but did not find any mark of injury on their private parts. He proved the medical examination reports vide Exts. 2 &

3.

P.W.6 Dr. Geetanjali Rath was the lady Asst. Surgeon, Sambalpur Headquarters Hospital and she examined the victim and proved her report

Ext.4. She also answered to the query made by the Investigating Officer and the query report has been marked as Ext.7

P.W.7 Abhiram Kar was the officer in charge of Katarabagh Police Station who is the Investigating Officer.

The prosecution exhibited ten documents. Ext.1/2 is the seizure list, Exts. 2 & 3 are the medical examination reports of the appellants, Ext.4 is the

medical examination report of the victim, Ext.5 is the report of the pathologist, Ext.6 is the report of the radiologist, Ext.7 is the query report of

P.W.6, Ext.8 is the first information report, Ext.9 is the statement of P.W.3 before the Investigating Officer and Ext.10 is the statement of P.W.4

before the Investigating Officer.

The prosecution also proved the broken bangles as M.O.I.

The learned trial Court after analysing all the evidence on record has been pleased to hold that since the victim had stated that she was in a cross

legged position at the time of occurrence and continued to be lying in such position, it ruled out the possibility of the victim being raped. It was

further held that the age of the victim on the date of occurrence was more than 18 years and the conduct of the victim in coming to her house and

narrating the incident before her mother rules out the possibility of consent of the victim for the occurrence. It was further held that the absence of

any injury on the person and private part of the victim cannot be used to discredit her testimony particularly when she was examined after a long

lapse of time. The learned trial Court further held that the delay in lodging the first information report has been properly explained.

Mr. Bijaya Kumar Ragada, learned counsel appearing for the appellants contended that the occurrence in question took place on 04.10.1990

and the first information report was lodged on 27.10.1990 which was more than three weeks after the alleged occurrence and delay in lodging the

first information report has not been satisfactorily explained and therefore, the possibility of an exaggerated or concocted story being put forth by

the prosecution cannot be ruled out. It is further contended that when the learned trial Court has disbelieved the commission of the major offence

i.e. under section 376 of the Indian Penal Code, the conviction of the appellants under section 354 of the Indian Penal Code basing on the self

same evidence is not justified. It is further contended that even if this Court upholds the conviction of the appellants under section 354 of the Indian

Penal Code, since during investigation as well as during pendency of the appeal, the appellants have remained in custody for a substantial period,

the sentence be reduced to the period already undergone.

Mr. Priyabrata Tripathy, learned Addl. Standing Counsel on the other hand supported the impugned judgment and contended that the delay in

lodging the first information report in a case of this nature is not fatal to the prosecution and moreover the victim and her mother have stated as to

how they reported the matter before the Ward member and the meetings were convened in the village on two occasions and how the fine amount

which was imposed by the gentlemen was not paid to the victim for which the first information report was lodged and therefore, the delay, if any,

has been satisfactorily explained. The learned counsel for the State further contended that the conduct of the appellants at the time of the

occurrence clearly makes out the ingredients of the offence under section 354 of the Indian Penal Code and the sentence which has been imposed

cannot be said to be excessive in the facts and circumstances of the case and therefore, no interference is called for.

Charge has been framed against the appellants under sections 376/34 of the Indian Penal Code. When it is the prosecution case that both the

appellants committed rape on the victim on 04.10.1990 in furtherance of their common intention, charge should have been framed under section

376(2)(g) of the Indian Penal Code which deals with ''gang rape''.

In case of Ashok Kumar -Vrs.- State of Haryana reported in A.I.R. 2003 S.C. 777, it is held as follows:-

Charge against the appellant is under Section 376(2)(g) IPC. In order to establish an offence under Section 376(2)(g) IPC, read with

Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if

rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it

is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision

embodies a principle of joint liability and the essence of that liability is the existence of common intention that common intention presupposes prior

concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly,

but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offer. In such cases, there must be

criminal sharing marking out a certain measure of jointness in the commission of offence.

In case of Hanuman Prasad and Ors. -Vrs.- State of Rajasthan reported in (2009) 42 Orissa Criminal Reports 284, it is held as follows:-

The important expression to attract Section 376(2)(g) is `common intention''. The essence of the liability in terms of Section 376(2) is the

existence of common intention. In animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC

have clear application. In order to bring in the concept of common intention, it is to be established that there was simultaneously consensus of the

minds of the persons participating in the act to bring about a particular result. Common intention is not the same or similar intention. It presupposes

a prior meeting and pre-arranged plan. In other words, there must be a prior meeting of minds. It is not necessary that pre-concert in the sense of a

distinct previous plan is necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between

a number of persons which has to be gauzed on the facts and circumstances of each case.

Section 376(1) of the Indian Penal Code prescribes punishment for rape which shall not be less than seven years but which may extend to ten

years or which may be for life and shall also be liable to fine. Section 376(2) of the Indian Penal Code on the other hand makes certain categories

of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to ""gang rape"". The minimum punishment

prescribed for such offence is ten years which may be for life and the accused shall also be liable to fine. This is how the words ""except in the cases

provided for by sub-section (2)"" occur in section 376(1) of the Indian Penal Code. The Explanation 1 to section 376(2) of I.P.C. indicates that

when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have

committed ""gang rape"". By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape

even if only one member of the group in furtherance of the common intention has committed rape. Therefore, in a case of gang rape, the proof of

completed act of rape by each of the accused on the victim is not required. Once it is established that accused persons who are two or more in

number had acted in concert and thereafter, the victim was actually raped by one of them then all of them can be prosecuted and even held guilty

for ""gang rape"". Therefore, charge should have been appropriately framed under section 376(2)(g) of the Indian Penal Code.

Coming to the evidence of the victim, she has narrated the incident in detail. She has stated in her chief examination that the appellant

Dinabandhu dragged her by holding her hand and took her to a low lying land by the side of the river and when she protested and struggled to

escape, appellant Dinabandhu fouled her for which she fell down and then she raised alarm. Then the appellant Kapila caught hold of her hand and

asked her not to shout and shut her mouth by the edge of her Saree. She has further stated that the appellant Dinabandhu opened his half pant and

pulled her saree and saya up to her waist and then committed sexual intercourse with her and thereafter, the appellant Kapila also committed

sexual intercourse with her and at that time the appellant Dinabandhu was holding her head and gagging her mouth for which she could not raise an

alarm. In the cross-examination, the victim has stated that when the appellant Dinabandhu came towards her while she was tending cattle, she did

not suspect his movement. She further stated that the appellant Dinabandhu physically lifted her by keeping her on his shoulder and then threw her

at the spot where she was ravished. She further stated that she made an attempt to runaway but the appellant Dinabandhu pounced upon her and

at that point of time, she struggled to escape herself but the appellant Dinabandhu opened his pant and appellant Kapila caught hold of her hands.

She has further stated that appellant Kapila caught hold of her right hand by his right hand and her left hand by his left hand but neither of the

appellants caught hold of her legs and that she was struggling by her legs. The victim has further stated in the cross-examination that when appellant

Dinabandhu opened his pant, she could know that he would have sexual intercourse with her, so at that time she crossed both of her legs. She

further stated that when appellant Dinabandhu came to penetrate his penis into her vagina, she tightened her legs and stifled her vagina. She further

stated that till both the appellants finished their sexual intercourse with her, she was lying in a crossed legged position. She further stated that neither

the appellant Kapila nor the appellant Dinabandhu squeezed her breast and none of them touched her breast nor gave kisses on her cheek nor

snatched her blouse. The learned trial Court held that the position in which the victim was lying at the time of occurrence rules out the possibility of

her being raped and accordingly, the offence of rape was disbelieved. It appears from the evidence that the victim was aged about twenty years at

the time of occurrence and even though according to her evidence, her hands were caught hold of by one of the accused while the other was

committing rape on her but it is apparent that none of the accused was holding her legs and in order to prevent sexual intercourse by the appellants,

she not only crossed both her legs but also tightened her legs and stifled her vagina and she was in such a position till end. She has not stated that

any of the appellants tried to separate her legs to commit sexual intercourse.

The victim has stated that after the appellant Kapila had sexual intercourse with her, he cleaned his semen by her saya from her private part as well

as from his private part and the semen fell on her saree and saya. The victim has further stated that he showed her saree, saya and kacha to her

mother and so also to the Ward member and she kept those saree, saya and kacha in her house to show it to the police, if necessary. The wearing

apparels of the victim girl were neither seized nor sent for chemical analysis.

So far as the delay in lodging the first information report is concerned, it appears that immediately after the occurrence, the victim came to her

house and narrated the incident before her mother and both of them went to the Ward member and disclosed about the occurrence. The ward

member who has been examined as P.W.3 has not supported the prosecution case. The victim and her mother have stated that a meeting was

convened in the village on the date of occurrence but no decision could be taken and four days thereafter, another meeting was held and even

though the appellants did not attend that meeting but their fathers attended the meeting and the panchayat imposed a fine of Rs.300/- on the

appellants. It is further stated by the victim and her mother that the panchayat members realized the fine amount of Rs.300/- from the appellants but

refused to give that money to the victim and accordingly, the first information report was lodged. In view of the nature of accusation and the

statements of the victim and her mother regarding convening of meeting in the village on two occasions to decide the matter, imposition of fine on

the appellants, non-payment of fine to the victim, I am of the view that the delay in lodging the first information report has been satisfactorily

explained. Merely because P.W.3 has not supported the prosecution case, the entire prosecution case cannot be disbelieved.

The doctor who had examined the victim on 06.11.1990 which is a month after the incident has stated that the hymen of the victim was

ruptured and there was an old tear in her hymen and she found no other injury present in her private part or other parts of the body. The

ossification test was conducted and the doctor opined that the probable age of the victim would be above eighteen and below twenty years. The

doctor gave her opinion that the old tear mark which was found in the hymen of the victim was due to sexual intercourse. However in the cross-

examination, she has stated that once the tear in the hymen is healed up, it is not possible to say, the exact time or as to how many days back there

was tear. She further stated that in absence of dead or alive spermatozoa, it cannot be said definitely whether there was sexual intercourse or not.

The vaginal swab of the victim was examined and the report vide Ext.5 indicates that no living or dead spermatozoa was present. Therefore, not

only there is delay in the medical examination of the victim but also the medical examination report no way helps the prosecution.

Coming to the offence under section 354 of the Indian Penal Code, there are ample materials available on record to show that the appellants

outraged the modesty of the victim. The essential ingredients of the offence under section 354 of the Indian Penal Code are that the assault must be

to a woman or the accused must have used criminal force on the woman and such assault or criminal force must have been used on the woman

intending thereby to outrage her modesty or having knowledge that her modesty will be outraged. The culpable intention of the accused is the crux

of the matter and the reaction of the woman is also relevant. The manner in which the victim was dragged, lifted, stripped off her clothing and some

immoral act was committed with her in spite of her protest, even if the charge under section 376 of the Indian Penal Code is found to be not

proved by the learned trial Court and neither the State of Odisha nor the victim has challenged the acquittal of the appellants of such offence but

there are sufficient materials on record against the appellants for commission of offence under section 354 of the Indian Penal Code.

The learned trial Court has imposed the maximum punishment prescribed for such offence which is two years. The appellants were forwarded to

Court on 29.10.1990 and they were released on bail by the learned trial Court on 27.04.1991. During pendency of the appeal before this Court,

non-bailable warrant of arrest was issued against both the appellants and the learned trial Court was directed to execute the non-bailable warrant

of arrest, by virtue of which the appellants were taken into custody on 11.05.2004 and they were released on bail by this Court on 26.06.2004.

Therefore, it appears that the appellants have remained in custody in connection with this case for seven months and few days. The occurrence in

question took place in the year 1990 and in the meantime more than twenty seven years have passed. Both the appellants were aged about twenty

years when the crime was committed. Therefore, at this stage, it would not be proper to send the appellants again to jail custody to serve out the

remaining period of sentence.

In view of the foregoing discussions, while confirming the order of conviction of the appellants under section 354 Indian Penal Code, the

sentence imposed by the learned trial Court is reduced to the period already undergone.

With the modification of the sentence, the Criminal Appeal stands dismissed.