Gaya Rout vs The State

S. Acharya, J.—The Appellant stands convicted u/s 376, Indian Penal Code and has been sentenced thereunder to undergo R.I. for six years.

The prosecution case, is short, is that P.W. 4, a girl of 11-12 years old, was working in the house of the accused as a maid servant. The girl wanted to go to see her father, who was staying underneath a tree near the old station Bazar. On 8-7-1972 at about 8 p. m. the accused took the girl towards the railway lines at Bhubaneswar on the plea of taking her to father, and when they were passing near the railway lines, the accused forced P.W. 4 to lie down on the ground and there he committed rape on her. After committing rape, the accused brought back the girl to his house and threatened her not to divulge anything about that matter to anybody. On the next day at about 4 p. m. the victim girl anyhow managed to go away from the house of the accused and she met P.W. 3, the wife of P.W. 2, at a place near the old Station Bazar where P.W. 1. the father of P.W. 4, was staying. P.w. 1 of course was not present there at that time. Then P.W. 4 informed P.W. 3 that the accused committed rape on her on the previous evening. Within a short time thereafter the accused came to that place and forcibly took away P.W. 4 again to his house. At about 6 p. m. P.W. 1 came to his dwelling place near the Station Bazar, and then he learnt from, P.W.2 that P.W. 4 had been raped by the accused on the previous evening. On receiving that information p. w 1 went to the Capital Police-station and lodged the F.I.R. Ext. 13. P.w. 11, the then Sub-Inspector of Police in the Capital Police-station, after recording the F.I.R. (Ext. 13) on the statement made by P.W. 11. directed P.W. 10, another Sub- Inspector of Police, to take up investigation of the case. P.w. 10 went to the house of the accused near Laxmisagar and therefrom brought the girl P.W. 4. He also brought a cloth M.O.I. produced by the wife of the accused. The victim girl was later sent to the Capital Hospital for her examination where she was examined by P.W. 9, the Lady Doctor. The accused was arrested on 12-7-l972 by P.W. 10. After investigation and commitment proceeding the accused was charged in the trial Court for an offence u/s 976. Indian Penal Code, of which he stands convicted and sentenced as stated above.

The accused has completely denied the prosecution allegation against him. According to him, on the entreaties of P.W. 1. the father of P.W. 4, was kept in the house of the accused, and incidentally she was doing some house-hold work in the accused''s house. After a few days of her stay she committed theft of a gold ear ring belonging to the wife of the accused, and fled away from the house. So the accused went in search of the girl and brought her back to his house from a place near the Station Bazar. While questioning her about the ear ring the accused in rage assaulted her and in the process of assaulting her he gave her a few kicks with the pointed shoes which he was wearing, and as the pointed toe of the shoe struck against the vagina of P.W. 4 she possibly got some injuries on that part of her body. Thereafter in order to side track the case of theft of the earring by P.W. 4, P.W. 1 at the instance of the police and some of the enemies of the accused, initiated this false case against the accused.

There are various unsatisfactory, unconvincing and improbable features in the prosecution evidence, especially on the important aspects of the case, due to which the prosecution case does not inspire confidence.

P.w.4 is the alleged victim girl. Though she is a rustic girl and was aged about 11-12-years when she was examined in the case, I find from the answers given by her to the preliminary questions put to her by the Court below that she was capable and intelligent enough to understand questions and give rational answers to the same It cannot also be said that whilst being cross-examined she was haunted with a sense of nervousness and/or bewilderment. The Court below also finds that she was competent to and capable of understanding questions, she gave rational answers to the same and that she possessed sufficient knowledge to understand the nature and consequence of the oath administered to her.

P.w.4 is the only witness regarding the commission of rape on her. At the outset It must be mentioned that this witness in cross-examination admitted that she was taken to the Capital Police-station four days prior to her examination in Court, she stayed in that police station for all those days, and that during these days the police officers instructed her as to how she should depose in this case. She further admitted that she deposed as per the instructions given to her by the police. Her categorical admissions to the above effect seriously affect the reliability, credibility and authenticity of her evidence.

Apart from that fact, there are various other unconvincing, unrealistic and unsatisfactory features in her evidence, which create doubt about the prosecution case against the accused.

P.w.4, admitted that the accused, before committing rape on her in the night of occurrence, had never misbehaved with her in any manner on any previous occasion. If that was so it is not understood why P.W. 4 entertained suspicion against the accused that while taking her to her father the accused might commit rape on her on the way, as stated by her at another place in the cross-examination. To a query made by the Court she further stated that when the accused wanted to take her out of the house in the night of occurrence she told the wife of the accused that the accused was taking her away to commit rape on her, but the wife of the accused pleaded her helplessness In the matter. If the accused never misbehaved with the girl, why did she entertain any such fear against the accused. Moreover, it sounds improbable that the wife of the accused would have pleaded helplessness in a matter of this nature even when a tender girl of 11-12 years old complained to her as stated above.

According to P.W. 4 there were some residential houses near about the place where the accused allegedly committed rape on her; and that she raised "loud hullah" when the accused took her towards the railway lines. She also shouted loudly when the accused asked her to he down on the ground, and when the accused was in the process of committing rape on her. She has further stated that while the accused was committing rape on her she was struggling hard to extricate herself from the accused, and at that time a train passed on the railway line close to the piece of occurrence. It sounds most improbable that the accused would have selected such a place to commit rape on a tender girl like P.W. 4, especially in the early hours of the evening, when she was resisting and protesting against that act in the aforesaid manner.

The manner and the Posture in which the accused allegedly committed rape on P.W. 4, as stated by her, far from inspiring confidence on the prosecution case, create doubt on the same. P.w. 4 stated that the accused committed rape on her while she all through was keeping her thighs and legs closed to each other and parallel to the ground. The lady Doctor P.W. 9. who examined P.W. 4, stated that the male organ of the accused could not have penetrated two inches inside the vagina of a minor girl unused to sexual intercourse, when her thighs and legs were kept closed to each other and parallel to the ground. The posture in which the act of rape was stated to have been committed appears to be a most unrealistic proposition.

From the evidence of P.W. 4 it appears that the said act of rare continued for a long time (according to her for about two hours), and throughout that time she struggled her best to get up from the ground where she was made to lie down. Her evidence to the above effect is not corroborated by anything else on record. If she really struggled that way for a long time it was expected that she would have sustained numerous injuries on her back, buttocks and other parts of her body. But no such injury was found on her body, as is evident from her medical examination by p. w.9. P.w. 9 also did not find any injury, tenderness, or sign of inflammation on the breasts of the girl. It sounds improbable that a girl of 11-12 years was forcibly raped by the accused at a rough and rugged place near the railway lines for a long time and all the time she was struggling hard to extricate herself from the clutches of the accused, but she did not sustain any injury indicating any such struggle. The Investigating Officer, who on the next day visited the shot where the rape allegedly had been committed, did not find any mark or sign of struggle or violence at that spot. As stated ear her, evidence, that she was raising hullah all the time she was being raped, is also most unconvincing and unrealistic.

According to P.W. 4, after the completion of he act of rape, the accused took her back to his house, left her there which the accused''s wife, and went out to take his food in a hotel, and came back to the house by about midnight. According to her, she did not disclose about the rape committed on her to the wife of the accused at any time, and that she disclosed about that incident for the first time only to P.W. 3 at about 4 P.W. on the next day near the old Station Bazar. It is not understood why P.W. 4, a young girl, did not disclose about that incident to the wife of the accused during the time when the accused was away from his house in the night of occurrence, and why she kept quiet till the next day evening. Her evidence to that effect throws a cloud of doubt on the prosecution allegation against the accused. It also sounds improbable that the wife of the accused also would not mark any signs or impressions of violence and/or of recent act of rape on P.W. 4 after she was brought back and left in the accused''s house. Moreover, according to P.W. 4, when she narrated about that incident to P.W. 3 on the next day there were 10 to 15 other persons present at that place. But none other than P.W. 3 has been examined to support evidence. The evidence of P.W. 3 to that effect again is not worthy of credence. Though P.W. 3 stated that very soon her husband, P.W. 2. came back from his work she (P.W.3) Informed him about the above-mentioned fact told to her by P.W. 4, but P.W. 2 very categorically stated that his wife did tell him anything about the above fact. P.w. 2 of course was declared hostile, and in his cross-examination by the prosecution it was suggested to him that in his statement before the police he had stared that his wife P.W. 3 told him about the above fact, which suggestion was stoutly deemed by him. Even after that denial the prosecution did not prove that P.W. 2 really had made any such statement before the police. The above facts only intensify the cloud of doubt on the prosecution case.

In the private parts of P.W. 4 the Lady Doctor P.W. 9, who examined the girl, only found that the vagina was inflamed and her hymen was torn and there was some bleeding from that injury. She conducted pathological examination of the vaginal discharge of the girl and of the white stains on her left thigh, but she (P.W.9) did not find therein any live or dead spermatoza in the different examinations conducted by her. P.w. 9 has opined that girls having Itching disease or girls intending to masturbate may move their fingers violently inside the vagina and thereby cause injury to the introitus resulting in the tearing of the hymen. She has further stated that if a girl is hit near her vagina by a pointed shoe repeatedly, there may be tearing of the hymen. The girl was examined by the doctor two days after the alleged occurrence. From the above evidence of the doctor it cannot be definitely stated that the injury on the private parts of the girl was due to the alleged act of rape by the accused and not due to any other possible cause as stated by P.W. 9. On the above-mentioned evidence of the doctor, the defence suggestion that the said injury was possibly caused when the accused, being enraged with the girl due to the theft of his wife''s ear rings, dealt a few kicks on the girl with his pointed shoes which accidentally struck her private parts and possibly caused the above injuries, cannot be completely brushed aside as flimsy or fictitious.

There is nothing in the evidence on record to show that the accused had any marks of injury on his private parts or on any other parts of his body. In the case reported in Rahim Beg and Another Vs. State of U.P., , it has been observed that if a virgin girl of 10 or 12 years with her hymen intact is subjected to rape by a fully developed man then that man would be expected to suffer injuries on his male organ. It has been further observed that on the above facts absence of injuries on the male organ of the accused would point to his innocence. If really, P.W. 4. a tender girl of 11 or 12 years, was subjected to rape by the accused for a long time, specially when she was keeping her thighs and legs closed to each other and parallel to the ground, and she was struggling all the time to extricate herself from the clutches of the accused, then it was expected that the accused would have suffered some injuries on his male organ and also on other parts of his body, especially as the act was allegedly committed on a rugged hard ground near the railway lines. Absence of any such injury on his body points to the innocence of the accused, more so because of the other unconvincing and unrealistic features in the prosecution evidence already discussed above.

It is alleged that on serological examination the Kasta (Saree), worn by P.W. 4 at the time of the occurrence, was found to have stains of blood and semen. The Kasta (M. Order 1) was allegedly seized by P.W. 10 from the house of the accused during his absence. It is stated that the wife of the accused produced this Kasta before P.W. 10 when the girl was taken out of that house by the police. None of the witnesses in whose presence the said Kasta was allegedly seized by P.W. 10 examined by the prosecution. Apart from P.W. 4, nobody else says that the said Kasta belonged to P.W. 4 and that she was putting on the same at the time of the alleged occurrence. The uncorroborated evidence of P.W. 4 to the above effect does not inspire confidence in view of her admission that she was kept at the police-station for four days prior to her deposition in Court and that she deposed in this case as per the instructions of the police. Moreover, the finding of semen on M.O.I. is not of much consequence especially in view of the doctor''s finding that there was no trace of semen on the vagina or on the vaginal discharge of the girl.

The evidence of the other witnesses is not of much importance or consequence. P.w. 1 is the father of the girl and his evidence is of no effect. P.w. 5 was the radiologist who conducted the X-Ray examination of the victim girl to determining her age. That the, girl was about 11 to 13 years old was not challenged. P. ws. 6 and 7 were the two Magistrates who recorded the statements of PWs. 3 and 4 u/s 164, Criminal Procedure Code. P.w. 11 is the Sub-Inspector of Police who recorded the F.I.R. There is no other evidence on record to lend convincing corroboration to the evidence of P.W. 4, or to lend truth and conviction to the prosecution case. On the unconvincing, improbable and unsatisfactory features in the prosecution evidence it becomes difficult for me to hold that the charge u/s 376, Indian Penal Code has been brought home against the accused beyond reasonable doubt. The accused, therefore, is entitled to the benefit of doubt, and hence his conviction u/s 376, Indian Penal Code cannot be maintained.

In the result, the conviction of the Appellant u/s 376 Indian Penal Code and the sentence passed against him thereunder are set aside and he is acquitted of the same.

The appeal accordingly is allowed.