HIGH COURT OF ORISSA, CUTTACK CRIMINAL APPEAL No.47 of 1995 From the judgment and order dated 12.12.1994 passed by Smt. Madhuri Pattnaik, Special Judge-cum-Sessions Judge, Koraput, Jeyopore in S.C. No. 398 of 1993. ......
Sukru Gouda .... Appellant Versus State of Orissa .... Respondent For Appellant - Mr. D.R. Bhokta and H.K. Behera For Respondent - Mr. K.K. Mishra, Addl. Government Advocate. ...... PRESENT: THE HON'BLE SHRI JUSTICE PRADIP MOHANTY AND THE HON'BLE SHRI JUSTICE B.K.PATEL
Date of hearing & judgment : 17.12.2009
PRADIP MOHANTY, J. In this appeal remitted back by the apex Court the appellant
seeks to challenge the judgment passed by the learned Special Judge-cum-
Sessions Judge, Koraput, Jeypore on 12.12.1994 in S.C. No.398 of 1993
convicting him under Section 376 IPC read with section 3(2)(v) of the S.C. & S.T.
(P.A.) Act, 1989 and sentencing him to undergo imprisonment for life.
2. The case of the prosecution in a nut shell is that on 04.09.1993
P.W.4, the informant, lodged an F.I.R. alleging that on the said day at 1.00 P.M.
while his wife, P.W.1 was collecting firewood in a nearby jungle the appellant, who
was collecting cow dung in the said jungle, told her that a big piece of wood was
lying nearby in the jungle. The victim, P.W.1 refused to go there. Then the appellant
forcibly pulled her down on the ground and in spite of her resistance committed
rape on her inside that jungle by raising her saree and also removing the pad which
she was using as she was having her monthly menstruation. While the appellant
was committing rape, P.W.2 arrived at the spot and saw the appellant. Seeing
P.W.2, appellant left the victim and fled away. Due to rape on her, P.W.1 had
profuse bleeding. She narrated the incident to her husband P.W.4, who reported
the matter before the police. After investigation, the police submitted charge sheet
against the present appellant.
3. The plea of the appellant was of complete denial of the
occurrence. His specific plea was that a false case had been foisted against him,
as just before the alleged occurrence the appellant had a quarrel with the informant
(P.W.4) and the victim over cutting of a Nala inside his land.
4. In order to prove its case, the prosecution examined as many
as eight witnesses and exhibited eleven documents. P.W.1 is the victim. P.W.2 is
an eye witnesses to the alleged occurrence. P.Ws.3 and 5 are post occurrence
witnesses. P.W.4, the husband of the victim, is the informant. P.W.6 is the doctor
who examined the victim. P.W.7 is the A.S.I. of police who reduced to writing the
oral report of the informant. P.W.8 is the I.O.
The appellant in support of his plea examined his two co-
villagers as D.Ws.1 and 2.
5. The trial court after conclusion of trial found the appellant guilty
under section 376 I.P.C. read with section 3(2)(v) of S.C. & S.T.(P.A.) Act,
convicted him thereunder and sentenced to undergo imprisonment for life.
Aggrieved, the appellant preferred the instant appeal. By order dated 21.01.2004, a
Bench of this Court set aside the judgment of the trial court and acquitted the
appellant of the charges. Such order of acquittal was challenged by the State
before the Supreme Court in Criminal Appeal No. 2044 of 2008 (arising out of
S.L.P. (Crl.) No. 4833 of 2007). The Hon’ble apex Court vide judgment dated
16.12.2008 remitted the matter back to this Court for fresh hearing and disposal
keeping in view the correct legal principles.
6. Mr. Bhokta, learned counsel for the appellant assails the
judgment of the trial court on the following grounds:
(i) There is no evidence at all on record- either oral or
documentary- to convict the appellant under section 3(2)(v) of
the S.C. & S.T. (P.A.) Act.
(ii) The evidence of D.Ws.1 and 2 that informant and P.W.5 had
cut a Nala in the land of the accused and they quarrelled with
him has not been considered by the trial court in its proper
(iii) Medical evidence gives a complete go bye to the prosecution
case that PW.1 was raped and no semen stains were detected
in the wearing apparels of P.W.1 on chemical examination.
(iv) Alternatively, the victim appears to be a consenting party to the
sexual intercourse and has foisted the case against the
appellant in order to save herself as P.W.2 arrived at the spot.
7. Mr. Mishra, learned Additional Government Advocate
vehemently contends that the evidence of P.W.1 is very clear, cogent and
consistent. There is no infirmity to disbelieve her evidence. P.W.2 has corroborated
the evidence of P.W.1 in material particular. He further submits that victim is an
Adivasi lady. Therefore, the trial court has rightly convicted the accused-appellant
under section 376 I.P.C. read with section 3(2) (v) of S.C. & S.T. (P.A.) Act.
8. Perused the LCR. P.W.1 is the victim. She stated that on the
date of occurrence while she was carrying fire wood, she saw the accused-
appellant in the Dobiri forest. The appellant told her that fire wood were lying inside
the forest and asked her to go and collect the same. But she did not go. Then the
appellant came, caught hold of her waist and dragged her to a distance. The victim
(P.W.1) was all along protesting. The accused-appellant felled the victim down,
undressed her and forcibly committed sexual intercourse. While she was shouting,
the accused gagged her mouth. In course of occurrence P.W.2 came to the spot
and on his protest the accused-appellant fled away. Then she went to the house of
P.W.3 and narrated the occurrence before her. P.W.3 accompanied the victim to
her house and after reaching there the victim narrated the occurrence before her
husband P.W.4. P.W.1 has also stated in her evidence that she had worn glass
bangles which were broken when the accused dragged her and committed rape on
her. In cross-examination, P.W.1 has clarified that hearing her shouts P.W.2 came
to the spot and soon after he came the accused left her and fled away. P.W.2 is an
eye witness. He stated in his evidence that while he was returning from his land
through Dobiri jungle he heard shouts of P.W.1, immediately rushed to the spot and
found that P.W.1 was lying on the ground and the accused-appellant was on her.
When P.W.2 shouted, the appellant left P.W.1 and fled away. In cross-examination
he specifically stated that he saw the accused was on P.W.1 who was lying on the
ground. Nothing has been elicited from his cross-examination to discredit his
testimony. P.W.3 is a post occurrence witness. She stated in her evidence that
P.W.1 came weeping to her (P.W.3’s) house and told her that the accused
committed rape on her. She admitted in cross-examination that there was dispute
between the accused and P.W.4, the husband of the victim. P.W.4 is the informant
and husband of the victim. He in his evidence stated that he heard the occurrence
from the victim, went to the police station and lodged FIR. He denied about the
dispute with the appellant. P.W.5 is another post occurrence witness. He stated
that P.W.4 came to his house and stated about the occurrence. He went to the
house of P.W.1 and also heard the occurrence from her. P.W.6 is the doctor. She
stated that on 07.09.1993 she examined the victim on police requisition and found
no external or internal injury. The victim had already attended bath and toilet before
her examination. In cross-examination she specifically stated that she found no
dead or living spermatozoa and sign of commission of sexual intercourse within 24
hours. P.W.7 is the A.S.I. of police who registered the case, investigated the
matter, seized the broken bangles from two places, prepared the seizure lists under
Exts. 2 and 3 and arrested the accused. He handed over the charge of
investigation to P.W.8 on 06.09.1993. P.W.8 tested the witnesses examined by
P.W.7, received the reports of the Medical Officers, sent the wearing apparels of
the accused and the victim for chemical examination and submitted charge sheet.
9 On scrutiny of the evidence on record it transpires that the
victim P.W.1 has unequivocally stated that on 04.09.1993 she had been to Dobiri
jungle for collecting firewood. There, the present appellant forcibly dragged her
and committed rape on her in spite of her protest. When she raised hullah, the
appellant gagged her mouth with his hand. P.W.2, who came to the spot hearing
the hullah of the victim, witnessed the occurrence. On being protested by P.W.2,
the present appellant left the victim and fled away from the spot. There is no reason
to disbelieve the evidence of P.Ws. 1 and 2. Immediately after the occurrence,
P.W.1 came to the house of P.W.3 and narrated the incident. P.W.3 accompanied
her to her house and narrated the incident before P.W.4, the husband of the victim.
P.W.5, the seizure witness, has categorically proved seizure of broken bangles and
also seizure of the wearing apparels of the victim as well as the accused under
Exts.2 and 3. P.W.6 is the doctor, who examined the victim three days after the
occurrence. She specifically stated that the victim had already attended bath and
toilet before her examination. She also admitted in cross-examination that there
was no sign of commission of sexual intercourse within 24 hours. Thus, it cannot
be said that the medical evidence militates against the prosecution case inasmuch
as the alleged rape had been committed on P.W.1 three days ago. From the above
medical evidence, it cannot be conclusively said that no rape had been committed
on the victim on the date of occurrence.
10. As regards commission of offence under Section 3(2)(v) of the
S.C. & S.T. (P.A.) Act 1989, it is the settled principle of law that mere fact that the
victim happened to be a girl belonging to the scheduled caste or scheduled tribe
does not attract the provisions of the said Act. In order to attract the mischief of
section 3(2)(v) of the S.C. & S.T. (P.A.) Act, it is the duty of the prosecution to lead
evidence to the effect that rape was committed on her because she belonged to the
scheduled caste community. This ratio has been decided by the apex Court in
Ramdas & Ors v. State of Maharashtra, AIR 2007 S.C. 155. In the present case,
except the fact that the victim belonged to the S.T. community, there is no other
evidence to prove commission of offence under section 3(2)(v) of the S.C. & S.T.
(P.A.) Act. Therefore, the conviction of the appellant under section 3(2)(v) of the
S.C. & S.T. (P.A) Act has to be set aside.
11. In view of the foregoing discussions, this Court affirms the
conviction of the appellant under Section 376 IPC and sets aside that under
Section 3(2)(v) of the S.C. & S.T. (P.A) Act.
12. Coming to the question of sentence, this Court finds that the
occurrence took place in the year 1993 and the appellant was convicted on
12.12.1994 by the trial court. His conviction was set aside by this Court on
21.01.2004 and the appellant was acquitted. The acquittal of the appellant having
been appealed against by the State, the apex Court by judgment dated 16.12.2008
remitted the matter back to this Court for fresh hearing and disposal. The appellant
is languishing in custody since 25.03.2009. On consideration of the totality of the
facts and circumstances of the case and in view of the facts that the appellant is
acquitted of the charge under Section 3(2)(v) of the S.C. & S.T. (P.A.) Act and that
the offence was committed in the year 1993 and criminal proceedings lasted for
more than 16 years which has caused a lot of mental agony and expenses to the
appellant, the life imprisonment as imposed by the trial court is set aside and the
appellant is sentenced to undergo rigorous imprisonment for four years.
13. In the result therefore, the Jail Criminal Appeal is allowed in part.
B.K.PATEL, J. I agree.
Orissa High Court, Cuttack
Dated 17th. December.,2009/Routray