Niran Ho vs State Of Odisha

S.K. SAHOO, J

The appellant Niran Ho faced trial in the Court of learned Asst. Sessions Judge, Karanjia in S.T. Case No.23/28/72 of 2006-05 for commission of offences punishable under sections 341/323/376/506(II) of the Indian Penal Code on the accusation that on 10th December 2004 at about 7 p.m. he wrongfully restrained the victim, voluntarily caused hurt to her and committed rape on her and also committed criminal intimidation by threatening her to kill with intention to cause alarm to her.

The learned trial Court vide impugned judgment and order dated 14.12.2006 has been pleased to hold that the prosecution has failed to establish the charges under sections 341/323/506(II) of the Indian Penal Code against the appellant, but found the appellant guilty under section 376 of the Indian Penal Code and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.1000/- (rupees one thousand), in default, to undergo further R.I. for one month.

The prosecution case, in short, as per the first information report lodged by Sitaram Ho (P.W.3), the husband of the victim before the I.I.C., Karanjia police station on 11.12.2004 is that on 10.12.2004 evening at about 7.00 p.m., the victim, who was his wife had been to attend the call of nature to the backyard of the house where the appellant committed rape on her and assaulted her. It is further stated in the F.I.R. that after returning from Karanjia, the informant came to know about the occurrence from the victim. P.W.3 also came to know from the victim that the appellant also threatened her with dire consequences.

P.W.3 lodged the written report (Ext.1) before the Inspector in-charge of Karanjia police station on 11.12.2004. On the basis of such first information report, Karanjia P.S. Case No.201 dated 11.12.2004 was registered against the appellant under sections 376/323/506 of the Indian Penal Code.

P.W.12 Nrusingh Charan Swain, I.I.C. of Karanjia police station after registration of the case, took up investigation of the case, examined the informant, the victim and other witnesses, sent the victim and the appellant to Sub-Divisional Hospital, Karanjia for their medical examination. On the same day, at about 8.30 p.m. he visited the spot and prepared the spot map (Ext.8) and also arrested the appellant on 11.12.2004. He seized the wearing apparels of the victim as per seizure list vide Ext.2 and also the biological sample of the appellant, which were collected by the Medical Officer on production by the constable as per the seizure list vide Ext.6. Similarly the biological samples of the victim were also seized as per the seizure list vide Ext.7. The wearing apparels of the appellant was seized as per the seizure list vide Ext.8. On 12.12.2004, the appellant was forwarded to Court and on 13.12.2004 the exhibits were dispatched to S.F.S.L., Rasulgarh through Court and on completion of investigation, charge sheet has been submitted.

After submission of charge sheet, the case was committed to the Court of Session and after following the due formalities, the learned trial Court framed the charges against the appellant on 23.08.2006 and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prove the guilt of the appellant.

The defence plea of the appellant is one of denial. It is pleaded that in order to harass him, a false case has been foisted.

During course of trial, in order to prove its case, the prosecution has examined as many as twelve witnesses.

P.W.1 Benudhar Patra, who was working as an Advocate's clerk has stated that while he was working in Court, at that time Sitaram Ho (P.W.3), his wife (P.W.2) and village Ward Member came to him and requested him to scribe the F.I.R. as the appellant raped the victim. He read over the contents of the F.I.R. to the informant and thereafter he signed the F.I.R. Ext.1.

P.W.2 is the victim. She supported the prosecution case and stated about the appellant forcibly dragged her from her backyard side and committed rape on her.

P.W.3 Sitaram Ho is the informant of the case and he is the husband of the victim. He stated that the victim who was his wife had been to attend the call of nature to the backyard of the house where the petitioner committed rape on her and assaulted her. It is further stated that after returning from Karanjia, he came to know about the occurrence from the victim and the appellant also threatened the victim with dire consequences.

P.W.4 Kisan Ho is the father-in-law of the victim who stated that the occurrence took place about three years back and after returning from Karadiha, he heard from his son and daughter-in-law that the appellant committed rape on his daughter-in-law and on the next day, they reported the matter at police station.

P.W.5 Jaunra Ho who was the Ward Member of that village and he stated that on the next date of occurrence, Sitaram Ho (P.W.3) told before him that the appellant committed rape on his wife and then he advised him to go to police station.

P.W.6 Rasananda Ho who is the co-villager of the informant stated that on the next day of occurrence, Sitaram Ho (P.W.3) told him that the appellant committed rape on his wife and then he told the informant to call the Ward Member of the village and to report the matter at police station.

P.W.7 Sabitri Ho who was the co-villager of the informant stated that the informant told in her house that the appellant committed rape on his wife.

P.W.8 Dr. Asis Ranjan Mohanty was the Gynocology Specialist at Karanjia Hospital, who medically examined the victim on police requisition and noticed some injuries on the left cheek and left scapula of the victim and she did not notice any injury on her heap or on her buttock and thigh and there was no sign and symptom of recent sexual intercourse.

P.W.9 Dr. Debendranath Parida was the Asst. Surgeon at S.D. Hospital, Karanjia who medically examined the appellant on police requisition and noticed that the appellant was capable of committing sexual intercourse and his clothings had no physical clue of alleged sexual intercourse. There were no bodily injury suggestive of forcible sexual intercourse and there were no sign and symptom of recent sexual intercourse.

P.W.10 Gopal Krushna Khuntia, who was working as Constable at Karanjia police station, is a witness to the seizure.

P.W.11 Hav. Munsi Khan was working as Havildar attached to Karanjia police station and he stated that on the date of occurrence, woman constable pama Dei produced sample blood, pubic hair, saliva and vaginal swab of the victim before the I.I.C., Karanjia P.S. who seized the same and he proved his signature on the seizure list.

P.W.12 N.C. Swain was the Investigating Officer of the case.

The prosecution exhibited nine numbers of documents. Ext.1 is the first information report, Exts.2, 3, 6 and 7 are the seizure lists, Ext.4 is the medical examination report of the victim, Ext.5 is the medical examination report of the appellant, Ext.8 is the spot map and Ext.9 is the forwarding report of exhibits to S.F.S.L., Rasulgarh for examination.

No witness was examined on behalf of the defence.

The learned trial Court after assessing the evidence on record, has been pleased to hold that the evidence of the victim is sufficiently corroborated by the medical evidence regarding sustaining of any injury on the person of the victim by the accused at the time of commission of rape. It was further held that the sole testimony of the prosecutrix goes to show that her evidence is trustworthy and reliable one and even though, there are some minor discrepancies but the evidence of prosecutrix cannot be discarded as she has proved the substratum of the prosecution story against the appellant beyond all reasonable doubt. However, the learned trial Court did not find any cogent evidence relating to the commission of offences under sections 341/323/506 of the Indian Penal Code and therefore, acquitted the appellant of such charges but found him guilty under section 376 of the Indian Penal Code.

Smt. P. Mishra, learned counsel appearing for the appellant contended that the impugned judgment and order of conviction is not sustainable in the eye of law and the learned trial Court has not properly assessed the evidence on record and the victim appears to be a consenting party and her evidence relating to commission of rape on her is not corroborated by the medical evidence and therefore, it is a fit case where the benefit of doubt should be extended in favour of the appellant.

Mr. J.P. Patra, learned Addl. Standing counsel for the State, on the other hand, supported the impugned judgment and submitted that the victim after the occurrence had disclosed about the occurrence before her husband (P.W.3) and some injuries were also noticed on the person of the victim by the doctor (P.W.8) when she was medically examined on police requisition on the very next day of occurrence. It is further argued that had she been a consenting party, she would not have disclosed about the occurrence to her husband as no one had seen the occurrence and therefore, it cannot be said that there are no materials on record to establish the charge under section 376 of the Indian Penal Code against the appellant and thus, the appeal should be dismissed.

The evidence of a victim of a sexual offence is entitled to great weight. Corroboration to the testimony of the victim is a guidance of prudence under given circumstances to satisfy judicial conscience. Solitary testimony of the prosecutrix is sufficient to base the conviction, if it inspires the confidence of the Court and it does not suffer from any basic infirmity.

Coming to the evidence of the victim (P.W.2), it appears that in the chief-examination, she stated that the occurrence took place behind her bari at about 4.00 p.m., but again she stated that while she had been to her bari to attend the call of nature at about 7.00 p.m., the occurrence had taken place. In the chief-examination, the victim has stated that the appellant forcibly dragged her and committed rape on her in the backyard. However, in the cross-examination, she stated that the appellant happened to be her 'Debar' and on the date of occurrence in the evening hours, the appellant had come to her house when she was alone with her children and talked with her for about ten minutes and then when she went to her bari, the appellant also talked with her there for some time. She further stated in the cross-examination that the appellant undressed her by removing her wearing apparels for which she became naked and then the appellant pulled her there, embraced her and slept upon her. She stated that the appellant dragged her on the ground and it was a paddy field having rough surface. She stated that the occurrence continued for about one hour, however, she stated that at that time, she herself protected her body but remained silent. She stated that she had not assaulted the appellant nor gave tooth bite to him but nailed him. She further stated that she sustained injury on her buttock but she had not called any of the villagers. Though she stated that her bangles of the right hand were broken but she had not shown the broken bangles to the police and she further stated that when her husband (P.W.3) knew that she had got relationship with the appellant, he used to abuse her.

From the evidence of Investigating Officer (P.W.12), it appears that the victim was an Adibasi and healthy lady. According to the I.O., there were other houses situated near the house of the victim and according to the spot map, there were two spots but there was no mark of violence in any of the spots.

The doctor (P.W.8) examined the victim on the very next day of the occurrence and he found no sign or symptoms of recent sexual intercourse and he did not find any fresh injury on the private parts of the victim. She did not notice any injury on her hip or on her buttock and thigh. However, the doctor found one bruise on the left cheek and another bruise on the left scapula.

The doctor (P.W.9) who examined the appellant on the next day of occurrence stated that there was no physical clue of alleged sexual intercourse from the clothing and there was no bodily injury suggestive of forcibly sexual intercourse by the appellant and there was no sign or symptoms of recent sexual intercourse.

In view of the evidence on record, when the occurrence took place in the backyard of the house of the victim and there were other houses nearer to the spot and the occurrence continued for about one hour and there is no evidence that the mouth of the victim was gagged during the occurrence, in such a scenario, the conduct of the victim in remaining silent and not trying to draw the attention of any of the co-villagers to save her goes to show that she was a consenting party. Her evidence that she nailed the appellant during the occurrence does not find any support from the medical examination report of the appellant. Her evidence that she was made to lie on the paddy field having rough surface where the occurrence continued for about one hour is not corroborated by her medical examination report. Being a healthy and married lady, the victim could have resisted the appellant vigorously in committing rape on her. The victim had neither tried to assault the appellant nor gave any tooth bite to him. The place of occurrence was such that had the victim attempted to draw the attention of others, the appellant would not have been successful in his mission. The materials on record rather indicate that the victim was having consent to the act committed by the appellant on the date of occurrence. It is correct that the appellant has not specifically pleaded about the consent but law is well settled that in absence of any specific plea being taken, if the materials available on record suggest that the victim was a consenting party, the Court can take into account the same. Whether there was consent or not, is to be ascertained on a careful study of all relevant circumstances. Consent does not mean submission under the influence of fear or terror. A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be a consent, as envisaged in law.

The argument advanced by the learned counsel for the State that had the victim been a consenting party, she would not have disclosed about the occurrence before her husband (P.W.3) when no one seems to have noticed it, has got some force, but it is not always possible on the part of an accused to put forth the reasons of his false implication by reading the mind of the victim

In view of the foregoing discussions, I am of the humble view that the prosecution has failed to establish the charge under section 376 of the Indian Penal Code against the appellant.

Accordingly, the Jail Criminal Appeal is allowed. The impugned judgment and order of conviction of the appellant under section 376 of the Indian Penal Code and the sentence passed thereunder is hereby set aside. If the appellant is still in jail custody, he shall be released forthwith, if his detention is not required in any other case.

Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.

Before parting with the case, I would like to put on record my appreciation to Smt. P. Mishra, the learned counsel for rendering her valuable help and assistance towards arriving at the decision above mentioned. Smt. P. Mishra, learned counsel for the appellant shall be entitled to her professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only)..

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