JUDGMENT
A.S. Naidu, J.
1. The appellants in all these Jail Criminal Appeals faced trial for alleged commission of offence under Section 376(2)(g) of the Indian Penal Code in the Court of the Addl. C.J.M.-cum- Assistant Sessions Judges, Rourkela in S.T. No. 224/60 of 1996.
2. On the basis of an FIR lodged by Laxmi Tirki (P.W. 1) the criminal action was set in motion. Shorn of all unnecessary details, the short facts alleged in the said FIR were that on 10.5.1996 at about 9 p.m. taking advantage of a beautiful moonlit night, P.W.I and her boy friend Birendra (P.W.7) along with her friend Marsha Lugun and her boy friend Sunil (P.W. 5) were chatting with each other in a field near the house of one Clara Kor.
The love birds were sitting apart from each other and were busy in the world of their own. After some time P.W. 1 and Marsha strolled towards a nearby hillock and P.W. 7 and P.W. 5 followed them. Near the hillock P.W.I and P.W. 7, so also Marsha and P.W. 5 again resumed their chatting. All of a sudden they heard the sound of some people approaching them. P.W.I requested her boy friend P.W. 7 to leave’ the spot, but he did not agree. P.W. 1 noticed that accused Sius alias Alexious Lakra (appellant in J. Cr. A. No. 201/98) approaching them. The said accused demanded to know what they were doing. Soon thereafter accused Nepali Binjhia alias Sekhar (appellant in J. Cr. A. No. 200/98) arrived there and threatened P.W.I and her friends saying that either he would take them to their houses or call their parents to that place. P.W.I requested them to desist from doing so and leave them alone. At that time, Lenga Oram (appellant No. 2 in J. Cr. A. No. 199/98), Fulchand Ahir alias Nag (appellant in J. Cr. A. No. 198/98), Pramod Baga (appellant No. 1 in J.Cr. A. No. 199/98), all belonging to village Rangamatia, and Siman alias Mangra Munda (appellant in J. Cr.A. No. 202/98) of Bartoli arrived there.
All of a sudden, accused-appellant Sius caught hold of both the hands of P.W. 1, gagged her mouth and dragged her towards a nearby stone quarry (Khadan). Though P.Ws. 5 and 7 protested, the accused-appellants threatened them. Accused- appellant Sius forcibly undressed P.W. 1, laid her down on the ground and had intercourse with her. After he finished his act, the other accused-appellants, namely, Nepali, Lenga, Fulchand, Mangra, Kishore and Pramod had sexual intercourse with P.W. 1 one after the other. They threatened P.W.I to kill her in case she reported the matter to police. Thereafter the accused-appellants brought P.W.I with them, left her near her house and left.
P.W. 1 sustained severe pain on her body and for 5/7 days could not move properly due to gang rape. She disclosed this fact, to Clara Ekka who advised her to report the matter to her parents. On 29.5.1996 P.W.I left for the house of her maternal uncle. She disclosed the incident to her maternal uncle and aunt who in turn advised her to report the fact to police.
But due to her illness P.W. 1 could not report the matter at the police station and after arrival of her father in the house of her maternal uncle, she disclosed the incident to him and they decided to report the matter to police and lodged FIR at 3 p.m. on 2.6.1996 at the Raghunathpalli Police Station.
P.W. 1 was examined by a medical officer on police requisition. The accused-appellants were also medically examined after their arrest on police requisition. The incriminating materials. viz. the wearing apparels of P.W. 1 as Well as of accused-appellants were seized by police and sent for chemical examination. The I.O. visited the spot, examined the witnesses, recorded their statements, seized the School Admission Register relating to P.W. 1 and after completion of investigation submitted chargesheet against the accused-appellants.
2. The plea of the accused-appellants was complete denial. They also pleaded that the father of P.W. 1 had demanded Rs. 20,000.00 from them on the allegation that they were spreading scandals against her daughter P.W.I and had threatened them that if they would not pay the demanded sum, he would rope them in a false criminal case. As they did not pay the amount, this case with all false and frivolous allegations was foisted against them.
3. Prosecution examined fourteen witnesses to prove its case. The prosecutrix was P.W.I, the I.O. was P.W. 12, the two medical officers who had examined the victim (P.W. 1) and the accused-appellants were P.Ws. 2 and 3 respectively, the medical officer who had conducted the ossification test of the victim was P.W. 14, the victim’s father was P.W.4, the Headmaster of the school where P.W. 1 was reading was P.W.9, the witnesses to seizure of different articles were P.Ws 8, 10, 11 and 13, the Constable who had accompanied the victim to hospital for medical examination was P.W. 6 and the occurrence witnesses were P.Ws. 5 and 7.
On behalf of defence, accused-appellant Situs alias Alexious Lakra examined himself as D.W.3 and two other witnesses were examined.
4. Out of the witnesses examined by prosecution the only two occurrence witnesses, namely, P.Ws. 5 and 7, turned hostile. The lady doctor P.W. 2 who had examined P.W.I after a good deal of time, i.e. twenty two days after the alleged occurrence, in her statement specifically stated that the hymen of the prosecutrix P.W. 1 was ruptured and old tears in the hymen were present. She also stated that the tears suggested rape and again she stated that the old tears on hymen could be possible by voluntary sexual intercourse also. She did not find any other injury on the back or other parts of the body of the victim P.W.I. The doctor P.W. 3 who had examined the accused-appellants did not find any injury either on the private parts of any of them or anywhere else on their body. P.W. 12 , the investigating officer, who seized the wearing apparels of the victim P.W. 1 as well as that of the accused-appellants vide seizure-lists Exts. 2 and 16 to 21, stated in his deposition that the seized wearing apparels were sent for chemical examination, but the same were not produced in Court. The prosecutrix P.W.I in her deposition in Court clearly and unambiguously reiterated the allegations made by her in the FIR.
The Court below evaluating the evidence of the prosecutrix arrived at the conclusion that her evidence was cogent and clear. The Court below observed that the evidence of P.W.I got a set back as the eye-witnesses to the occurrence did not support her testimony. Though P.W. 1’s statement revealed that three persons, namely, P.W. 5, P.W. 7 and P.W. 1’s girl friend Marsha, were present at the spot all along when the occurrence took place, P.Ws. 5 and 7 have not supported the version of P.W. 1 in Court. It is also held that the medical evidence is of little help to the prosecution. Relying on the sole testimony of the prosecutrix, the Court below arrived at the conclusion that the prosecution had proved the charge under Section 376(2)(g) IPC against all the accused-appellants beyond all reasonable doubts, found them guilty of the said charge and convicted them thereunder. Each of the accused-appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000.00 each, in default to undergo further rigorous imprisonment for three months.
5. No doubt the solitary and uncorroborated testimony of a prosecutrix is sufficient to base a conviction for offence under Section 376 IPC. But then, such evidence of a solitary witness should inspire confidence in the judicial mind and should be of such nature that the Court must be able to certify that the testimony is wholly reliable. This being the settled position of law, I, being the final Court of facts, once again scrutinised the evidence, both oral and documentary adduced in the case.
6. In the FIR as well as in her deposition P.W. 1 has clearly stated that on 10.5.1996 at about 9 p.m. she along with her firnd Marsha were having a gala time in the field near the house of Clara Kor in village Rangamati. The said Clara Kor surprisingly has not been examined as a witness for the prosecution. The incident was alleged to have occurred near a quarry called “Roshan Khadan” which was hardly 140 to 150 feet from the houses of several other persons, but none of the persons residing there has been examined as a witness in the case. P.Ws. 5 and 7 who were stated by P.W. 1 to be the occurrence witnesses and to have seen the episode have denied the incident in Court. Marsha, the girl friend of P.W. 1 who was also stated by P.W. 1 to be present during the occurrence has not been examined as a prosecution witness. Clara Ekka before whom P.W. 1 claims to have disclosed the incident has also not been examined. P.W. 3, the lady doctor who had medically examined P.W. 1 after twenty two days of the alleged occurrence found an old tear in her hymen. Though at one stage she deposed that the said tear would suggest rape, at the next breath she said that the tear was possible even without rape and the old tear found could also be possible by voluntary sexual intercourse. Though it was alleged that the victim was undressed and laid down on the ground near a quarry which must have been rough and uneven, nor a scratch was found on the back or other parts of the body of the victim. According to P.W. 1, the accused-appellants, seven young men, raped her forcibly one after the other and soon thereafter she could walk to her house and more surprisingly two of the accused-appellants accompanied her up to her house. At this juncture, a doubt occurs in my mind that while two young girls being P.W.I and Marsha were available, why the accused-appellants only raped one and did not touch the other girl.
7. Though defence has taken a positive plea that as the accused-appellants did not cater to the demand of money by the father of P.W.I this case was falsely foisted against them and examined three witnesses in support of such plea, the Court below did not discuss the evidence of the said witnesses. On the whole, the conviction of the accused-appellants was based only on the solitary and uncorroborated testimony of P.W.I, the prosecutrix.
8. In the facts and circumstances, the only thing which needs to be examined is as to whether the testimony of P.W. 1 inspires confidence and is of such nature that the Court is convinced that the same is wholly reliable. In order to arrive at such conclusion, I meticulously scrutinised the evidence on record. On such scrutiny, I found the following infirmities:
(1) Though the occurrence took place on 10.5.1996, the FIR was lodged twenty days after, i.e. on 2.6.1996. No acceptable explanation has been offered for such inordinate delay.
(2) The occurrence witnesses i.e. P.W.5 and P.W.7, stated by P.W. 1 to be present at the time of the occurrence have not corroborated the testimony of P.W. 1.
(3) The medical evidence does not support the prosecution case and rather throws a cloud of suspicion.
(4) The statement of the lady doctor P.W.2 that the rupture and tears of hymen of P.W.I were old ones is of no assistance to the prosecution.. The age of such rupture and tears having not been clarified, the possibility of the same having been caused even prior to the alleged incident cannot be ruled out.
(5) No external injury was found on the person of the prosecutrix though according to her she was laid down on a rough surface and brutally ravished by seven accused-appellants, who were all tribal persons.
(6) P.W. 3, the doctor who had medically examined the accused-appellants found absolutely no injury either on their private parts or anywhere else on their person.
(7) Though the wearing apparels of P.W. 1 stated by her to have been stained with blood were seized by police as per the seizure-list Ext.2. the same were not produced in Court. The chemical examination report also was not produced. Similarly the wearing apparels of the accused-appellants though seized by police and sent for chemical examination, the reports were not produced.
(8) No materials were produced to show that the victim after being raped by seven young tribal men suffered any physical pain or was treated by any doctor.
(9) Marsha, the girl friend of P.W.I, who was stated to be all along with P.W. 1 and was a witness to the entire alleged occurrence was not examined as a witness for the prosecution.
(10) Clara Ekka before whom P.W. 1 stated to have narrated the incident has not been examined.
(11) Clara Kor near whose house the incident allegedly occurred or any other inhabitants staying near the place of alleged occurrence has not been examined as a witness.
(12) P.W.5 and P.W.7, the two boy friends of P.W.I and her friend Marsha, did not resist the action of the accused-appellants.
(13) Though P.W. 1 stated that all the three persons namely P.W.5, P.W.7 and Marsha were unguarded when the accused-appellants were ravishing her one after the other, none of the said persons either tried or cried out for help.
(14) Though the seven accused-appellants allegedly ravished her one after the other, P.W. 1 could walk to her house soon after the said occurrence.
(15) P.W.I has stated that two of the accused-appellants after the alleged rape on her escorted her to her house, which appears to be improbable.
(16) Though Marsha, friend of P.W.I, a young girl like P.W. 1, was throughout present at the time P.W. 1 was being ravished by the accused-appellants one after the other, even at that passion moment the accused- appellant did not touch Marsha; and
(17) The alleged incident was not narrated to any of the villagers or the near and dear ones, or even the family members of P.W. 1 by herself for long twenty one days.
9. On an analysis of the testimony of the prosecutrix P.W. 1 from different angles as highlighted above, 1 am unable to arrive at the conclusion that the said testimony is wholly reliable, basing on which seven young men like the accused- appellants can be convicted of the charge of gang rape and can be sentenced to undergo R.I. for ten valuable years of their life. According to me, the testimony of P.W. 1 cannot be accepted without a pinch of salt. The testimony of P.W. 1 raises several doubts and improbabilities. Keeping in mind that “a miscarriage of justice which may arise from the acquittal of the guilty is no less than the conviction of an innocent”, I am unable to confirm the conviction and sentence passed against the accused-appellants.
10. In the result, all the aforesaid Jail Criminal Appeals (Nos. 197 to 202 of 1998) are allowed. The conviction and sentence passed against the accused-appellants by the Addl. C.J.M.-cum- Asst. Sessions Judge, Rourkela in S.T. No. 224/60 of 1996 are set aside. The accused-appellants are acquitted of the charge under Section 376(2)(g) IPC. They be set at liberty forthwith if their detention in custody is not required in connection with any other case.