PETITIONER:
GAGAN BIHARI SAMAL AND ANR.
Vs.
RESPONDENT:
STATE OF ORISSA
DATE OF JUDGMENT09/07/1991
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
AGRAWAL, S.C. (J)
CITATION:
1991 SCR (2) 839 1991 SCC (3) 562
JT 1991 (3) 63 1991 SCALE (2)89
ACT:
Constitution of India: Article 136-Special leave
petition-Concurrent findings of facts-Re-appraisal of
evidence-Whether could be considered.
Indian Penal Code, 1860: S.376-Rape-Trial-
Uncontroverted testimony of victim-Making out the offence
against the accused persons-Conviction and sentence awarded
by trial court-Maintained by appellate court and High Court
in revision-Validity of-Corroboration not the sine qua non
for conviction.
Evidence Act, 1872: S. 114A-Evidence-Victim girl
subjected to sexual assault forcibly-Protest and struggle by
victim-Absence of consent-Presumption of.
Criminal Procedure Code, 1973: S. 401-Revisional
jurisdiction-High Court-Whether could reappraise evidence.
HEADNOTE:
The appellants forcibly took P.W. 2 to a lonely place
on 19.3.1983, made her to drink liquor and committed sexual
assault on her. Thereafter they left her in a truck. While
the said truck was unloading materials near a village, the
victim stealthily left the truck and concealed herself near
a fence. P.W. 7 rescued her and took her to the house of
P.W. 8, one of her distant relative, from where her father
P.W. 1 took her back and lodged the report at the police
station. A case under ss. 363 and 376 read with s.
341.I.P.C. was registered against both the appellants.
After completion of the investigation, a charge sheet was
submitted and the appellants were tried for the aforesaid
offences.
The appellants denied the prosecution allegations and
pleaded that they were falsely implicated because of refusal
by one of them to marry the girl and previous enmity with
the other. The Assistant Sessions Judge rejected the
defence pleas, and found that the appellants committed rape
on the victim without her consent, and relying on s. 114A of
the Evidence Act, convicted the appellants under s.
376(2)(g), I.P.C. and sentenced each of them to rigorous
imprisonment for three
840
years. Since the victim was more than 16 years of age, the
appellants were acquitted of the charge under s. 363, I.P.C.
On dismissal of their appeal against the conviction and
sentence by the Addl. Session Judge, the appellants filed a
revision application before the High Court.
The High Court duly considered and appraised the
evidence and held that the appellants committed rape on PW 2
forcibly without her consent. Ultimately the appellants
came in appeal by special leave to this Court.
Dismissing the appeal, this Court,
HELD: 1. In cases of rape, generally it is difficult to
find any corroborative witnesses except the victim of the
rape. However, corroboration is not the sine que non for a
conviction in a rape case. In the Indian setting, refusal
to act on the testimony of a victim of sexual assault in the
absence of corroboration as a rule, is adding insult to
injury. [843D-F]
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR
1983 SC 753 and Rameshwar v. The State of Rajasthan, [1952]
SCR 377, relied on.
2. In the instant case, the victim girl clearly stated
in her evidence that she had been taken to a solitary house
in the hills by appellant no. 1 where she was made to drink
liquor and thereafter she was undressed and forcibly
subjected to sexual intercourse by both the accused-
appellants one after the other. Her uncontroverted
testimony was accepted by all the courts and they
concurrently found that she had been raped without her
consent. [844F-G]
3. Apart from the legal presumption that flows from the
provisions of s. 114A of the Evidence Act, it is clearly
evident in the instant case, that the victim girl protested
and struggled while she was subjected to sexual assault
forcibly by the accused persons and this clearly evinces
absence of consent on her part in such sexual intercourse.
[844H; 845A]
4. The High Court rightly held that it cannot be
expected to re-appraise the evidence as a court of appeal
while exercising its revisional power under s. 401 Cr. P.C.
[845E-F]
841
State of Orissa v. Nakula Sahu and Ors., AIR 1979 SC
663, relied on.
5. This Court hearing an appeal by special leave cannot
consider and re-appraise the evidence once again in the face
of concurrent findings of facts arrived at by all the courts
below. [845F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal appeal No.
383 of 1991.
From the Judgment and Order dated 17.7.1990 of the
Orissa High Court in Crl. Rev. No. 382 of 1986.
Janaranjan Das for the Appellants.
A.K. Panda for the Respondent.
The Judgment of the Court was delivered by
RAY, J. Special leave granted. Arguments heard.
This appeal by special leave is directed against the
judgment and order dated July 17, 1990 passed by the High
Court of Orissa in Criminal Revision No. 382 of 1986
dismissing the revision and affirming the concurrent
findings of the courts below. The prosecution case in
short is that on 19th March, 1983 at about 7.p.m. while the
victim girl Srimanthini Samal (P.W. 2) was going to the
house of Rama Samal, for study, the appellant Gagan informed
her that the other appellant Prafulla and others had tied
her tutor Rabi Babu in a nearby mango grove and her father
was present there. Having believed the version of the
appellant Gagan, her agnatic uncle, she accompanied him and
ultimately the appellants forcibly took her to a lonely
house in hills where she was made to sit on a chair and the
appellant Gagan forcibly thrushed in her mouth a liquor
bottle and she was made to drink the liquor. Thereafter
both the appellants after having undressed her committed
sexual assault on her. Then she was brought to expression
highway from where she was bodily lifted to a truck standing
there and left her in the truck. While the said truck was
unloading materials near village Kurujanga, the victim girl
stealthily left the truck and concealed her presence near a
fence. Subsequently, one Purusottam Mohanty rescued her and
brought her to his house and then she was left to the house
of one Niranjan Rout (P.W. 8), who was distantly related to
her and took shelter till her father took her back on being
842
informed. On the information lodged by her father (P.W. 1)
in the police station of Badachana a case under sections 363
and 376 read with section 34 of the I.P.C. was registered
against the accused appellants and after investigation the
I.O. sent the victim girl as well as the appellants for
medical examination and after completion of the
investigation a charge sheet was submitted against the
appellants to stand their trial. The pleas of the
appellants were a total denial of the prosecution case. The
appellant Prafulla took the plea the there was a marriage
proposal of the victim girl with him but when it was
disclosed that she had illicit relationship with her tutor
Rabi, he refused to marry her for which this false case was
foisted against him. The plea of the other appellant Gagan
as suggested to the informant, was that due to his previous
enmity he was falsely implicated with the alleged crime.
The appellants were committed to the Court of Sessions.
The learned Assistant Sessions Judge after considering the
evidences on record rejected the defence pleas, and found
that the accused appellants committed rape on the victim
girl without her consent relying on the provisions of
Section 114(A) of the Evidence Act, and convicted them under
section 376(2)(g) I.P.C. and sentenced each of the accused
appellants to rigorous imprisonment for three years
considering the young age of the appellants. The Assistant
Sessions Judge, however, acquitted the appellants from the
charge under section 366 I.P.C. as the victim girl was more
than 16 years of age at the time of occurrence.
Against this judgment and order of conviction the
appellants filed an appeal being Criminal Appeal No. 153 of
1984 in the Court of First Additional Sessions Judge,
Cuttack. The Additional Sessions Judge considered the pleas
of the appellants as well as duly scrutinized and appraised
the evidences on record and found that the accused
appellants committed rape on the victim girl without her
consent and affirmed the conviction and sentence imposed by
the Trial Court dismissing the appeal.
The appellants thereafter filed a Revision Case being
Criminal Revision No. 382 of 1986 in the High Court of
Orissa at Cuttack against the said judgment and order passed
by the First Additional Sessions Judge, Cuttack. The High
Court duly considered and appraised the evidences of all the
9 P. Ws. including the deposition of the victim girl
Srimanthni Samal (P.W. 2), the evidence of her father (P.W.
1) as well as the evidence of her mother (P.W. 3) and the
evidences of the two Doctors (P.W. 4) and P.W. (5) and held
that the accused persons committed rap on P.W. 2 forcibly
without her con-
843
sent. It has been further found from the reliable evidences
of P.Ws. 1 and 3 that as soon as P.W. 2 met her mother, P.W.
3, P.W. 2 told her mother about both the accused persons
committing rape on her in a solitary house and also about
the accused persons taking her away to the highway and
keeping her in a truck, and corroborate the version of P.W.
2 regarding the occurrence of rape committed n her by both
the accused persons. It has been further observed that even
though the P.Ws. 7 and 8 became hostile still then their
evidences can be safely relied on as the same fully
corroborates the version of P.W. 2 that on the relevant
night the she, with the help of P.W. 7 had taken shelter in
the house of P.W. 8 P.W. 6 who the driver of the truck No.
ORG-4839 also stated in his evidence that the accused
persons and two others took the victim girl and left her in
the truck. P.W. 6 further admitted that as he stopped the
truck at village Ambura for unloading the boulders, the girl
had stealthily left his truck and inspite of his searching
her, he could not trace her. This fully supports the
version of P.W. 2 that she left the truck and concealed
herself near a fence in darkness. The learned Judge,
therefore, held “Hence, on a careful scrutiny of the
evidences of the hostile witnesses P.Ws. 6 and 8 it is seen
that even they corroborate the evidence of the victim gild,
P.W. 2 on material aspects of the prosecution case.”
In cases of rape, generally it is difficult to find any
corroborative witnesses except the victim of the rape. It
has been observed by this Court in Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat, AIR 1983 SC 753 as follows:
“Corroboration is not the sine qua non for a
conviction in a rape case. In the Indian setting,
refusal to act on the testimony of a victim of
sexual assault inthe absence of corroboration as a
rule, is adding insult to injury. Why should the
evidence of the girl or the woman who complains of
rape or sexual molestation be viewed with the aid
of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion? To do so is to
justify the charge of male chauvinism in a male
dominated society.
A girl or a woman in the tradition bound non-
permissive society of India would be extremely
reluctant even to admit that only incident which is
likely to reflect on her chastity had ever
occurred. She would be conscious of the danger of
being ostracized by the society or being looked
down by the society including by her own family
members,
844
relatives, friends, and neighbours. She would face
the risk of losing the love and respect of her own
husband and near relatives, and of her matrimonial
home and happiness being shattered. If she is
unmarried, she would apprehend that it would be
difficult to secure an alliance with a suitable
match from a respectable or an acceptable family.
In view of these and similar factors, the victims
and their relatives are not too keen to bring the
culprit to book. And when in the face of these
factors the crime is brought to light there is a
built-in assurance that the charge is genuine
rather than fabricated.”
The above observation has been made by this Court relying on
the earlier observations made by this Court in Rameshwar v.
The State of Rajasthan, [1982] SCR 377 with regard to
corroboration of girl’s testimony and version. Vivian Bose,
J, who spoke for the Court observed as follows:
“The rule, which according to the case has hardened
into one of law, is not that corroboration is
essential before there can be a conviction but that
the necessity of corroboration, as a matter of
prudence, except where the circumstances make it
safe to dispense with it, must be present to the
mind of the judge, ……………….The only rule
of law is that this rule of prudence must be
present to the mind of the judge or the jury as the
case may be and be understood and appreciated by
him or them. There is no rule of practice that
there must, in very case, be corroboration before a
conviction can be allowed to stand.”
In the instant appeal as had been stated hereinbefore
that P.W. 2, the victim girl has clearly stated in her
evidence that she had been taken to a solitary house in the
hills by the appellant no. 1 Gagan Bihari Samal and there
she was made to drink liquor and thereafter she was
undressed and forcibly subjected to sexual intercourse by
both the accused appellants one after the other. He
uncontroverted testimony has been accepted by all the courts
and the courts concurrently found that she was raped without
her consent. It has been tried to be contended on behalf of
the appellants that the amended section 114(A) was brought
into the Evidence Act after the commission of the offence
for which the appellants were charged and as such no
assumption can be made on the basis of this provision. This
submission is of no avail in as much as it is clearly
evident that the victim girl protested and
845
struggled while she was subjected to sexual assault forcibly
by the accused persons and this clearly evinces absence of
consent on part of the victim girl in such sexual
intercourse apart from the legal presumption that follows
from the provisions of Section 114(A) of the Evidence Act.
The learned counsel on behalf of the appellants further
tried to argue on the basis of some minor discrepancies in
the evidences of P.W. 2 that the prosecution case was a
false one and it has been foisted on the appellants due to
enmity and also due to accused Prafulla, one of the
appellants, having disagreed to marry the victim girl. The
courts below have clearly found that the defence case was
not at all sub-stantiated by any cogent evidence. So this
contention is not at all tenable.
It is apropos to mention here the observation made by
this Court in the case of State of Orissa v. Nakula Sahu and
Ors., AIR 1979 SC 663 which are set-out herein:
“Although the revisional power of the High Court
under Section 439 read with section 435 is as wide
as the power of Court of appeal under Sec. 423 of
the Code, it is now well settled that normally the
jurisdiction of the High Court under Section 439 is
to be exercised only in exceptional cases when
there is a glaring defect in the procedure or there
is a manifest error on a point of law which has
consequently resulted in flagrant miscarriage of
justice. Inspite of the wide language of Section
435, the High Court is not excepted to act under
Section 435 or Section 439 as if it is hearing an
appeal.”
The High Court of Orissa referred to the said observation
and rightly held that the High Court cannot be expected to
re-appraise the evidence as a court of appeal. This Court
hearing an appeal by special leave cannot consider and re-
appraise the evidences once again in the face of concurrent
findings of facts arrived at by all the courts below.
For the reasons aforesaid we dismiss the appeal and
uphold the conviction and sentence as found by the High
Court.
R.P. Appeal dismissed.
846