{"id":91312,"date":"2009-12-17T00:00:00","date_gmt":"2009-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sukru-gouda-vs-state-of-orissa-on-17-december-2009-2"},"modified":"2014-02-10T07:39:08","modified_gmt":"2014-02-10T02:09:08","slug":"sukru-gouda-vs-state-of-orissa-on-17-december-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sukru-gouda-vs-state-of-orissa-on-17-december-2009-2","title":{"rendered":"Sukru Gouda vs State Of Orissa on 17 December, 2009"},"content":{"rendered":"
Orissa High Court<\/div>\n
Sukru Gouda vs State Of Orissa on 17 December, 2009<\/div>\n
                                  HIGH COURT OF ORISSA,\n                                        CUTTACK\n\n                            CRIMINAL APPEAL No.47 of 1995\n\n       From the judgment and order dated 12.12.1994 passed by Smt. Madhuri\n       Pattnaik, Special Judge-cum-Sessions Judge, Koraput, Jeyopore in S.C. No.\n       398 of 1993.\n                                         ......\n<\/pre>\n
       Sukru Gouda                                                      ....              Appellant\n\n                                            Versus\n\n       State of Orissa                                                  ....         Respondent\n\n\n                      For Appellant         - Mr. D.R. Bhokta and\n                                              H.K. Behera\n\n                      For Respondent        - Mr. K.K. Mishra,\n                                              Addl. Government Advocate.\n\n                                                   ......\n\n       PRESENT:\n\n                     THE HON'BLE SHRI JUSTICE PRADIP MOHANTY\n                                       AND\n                        THE HON'BLE SHRI JUSTICE B.K.PATEL\n\n<\/pre>\n
       ————————————————————————————–\n<\/p>\n
                           Date of hearing & judgment : 17.12.2009<\/p>\n
PRADIP MOHANTY, J.           In this appeal remitted back by the apex Court the appellant
\n       seeks to challenge the judgment passed by the learned Special Judge-cum-
\n       Sessions Judge, Koraput, Jeypore on 12.12.1994 in                 S.C. No.398 of 1993
\n       convicting him under Section 376 IPC read with section 3(2)(v) of the S.C. & S.T.
\n       (P.A.) Act, 1989 and sentencing him to undergo imprisonment for life.\n<\/p>\n
       2.                    The case of the prosecution in a nut shell is that on 04.09.1993
\n       P.W.4, the informant, lodged an F.I.R. alleging that on the said day at 1.00 P.M.\n<\/p>\n
                                             2<\/span><\/p>\n
while his wife, P.W.1 was collecting firewood in a nearby jungle the appellant, who
\nwas collecting cow dung in the said jungle, told her that a big piece of wood was
\nlying nearby in the jungle. The victim, P.W.1 refused to go there. Then the appellant
\nforcibly pulled her down on the ground and in spite of her resistance committed
\nrape on her inside that jungle by raising her saree and also removing the pad which
\nshe was using as she was having her monthly menstruation. While the appellant
\nwas committing rape, P.W.2 arrived at the spot and saw the appellant. Seeing
\nP.W.2, appellant left the victim and fled away. Due to rape on her, P.W.1 had
\nprofuse bleeding. She narrated the incident to her husband P.W.4, who reported
\nthe matter before the police. After investigation, the police submitted charge sheet
\nagainst the present appellant.\n<\/p>\n
3.                   The plea of the appellant was of complete denial of the
\noccurrence. His specific plea was that a false case had been foisted against him,
\nas just before the alleged occurrence the appellant had a quarrel with the informant
\n(P.W.4) and the victim over cutting of a Nala inside his land.\n<\/p>\n
4.                   In order to prove its case, the prosecution examined as many
\nas eight witnesses and exhibited eleven documents. P.W.1 is the victim. P.W.2 is
\nan eye witnesses to the alleged occurrence. P.Ws.3 and 5 are post occurrence
\nwitnesses. P.W.4, the husband of the victim, is the informant. P.W.6 is the doctor
\nwho examined the victim. P.W.7 is the A.S.I. of police who reduced to writing the
\noral report of the informant. P.W.8 is the I.O.\n<\/p>\n
                     The appellant in support of his plea examined his two co-\n<\/p>\n
villagers as D.Ws.1 and 2.\n<\/p>\n
5.                   The trial court after conclusion of trial found the appellant guilty
\nunder section 376 I.P.C. read with section 3(2)(v) of S.C. & S.T.(P.A.) Act,
\nconvicted him thereunder and sentenced to undergo imprisonment for life.
\nAggrieved, the appellant preferred the instant appeal. By order dated 21.01.2004, a
\nBench of this Court set aside the judgment of the trial court and acquitted the
\nappellant of the charges. Such order of acquittal was challenged by the State
\nbefore the Supreme Court in Criminal Appeal No. 2044 of 2008 (arising out of
\nS.L.P. (Crl.) No. 4833 of 2007). The Hon’ble apex Court vide judgment dated
\n                                             3<\/span><\/p>\n
16.12.2008 remitted the matter back to this Court for fresh hearing and disposal
\nkeeping in view the correct legal principles.\n<\/p>\n
6.                    Mr. Bhokta, learned counsel for the appellant assails the
\njudgment of the trial court on the following grounds:\n<\/p>\n
              (i)     There is no evidence at all on record- either oral or
\n                      documentary- to convict the appellant under section 3(2)(v) of
\n                      the S.C. & S.T. (P.A.) Act.\n<\/p><\/blockquote>\n
              (ii)    The evidence of D.Ws.1 and 2 that informant and P.W.5 had
\n                      cut a Nala in the land of the accused and they quarrelled with
\n                      him has not been considered by the trial court in its proper
\n                      perspective.\n<\/p><\/blockquote>\n
              (iii)   Medical evidence gives a complete go bye to the prosecution
\n                      case that PW.1 was raped and no semen stains were detected
\n                      in the wearing apparels of P.W.1 on chemical examination.\n<\/p><\/blockquote>\n
               (iv)   Alternatively, the victim appears to be a consenting party to the
\n                      sexual intercourse and has foisted the case against the
\n                      appellant in order to save herself as P.W.2 arrived at the spot.\n<\/p><\/blockquote>\n
7.                    Mr.   Mishra,   learned       Additional   Government   Advocate
\nvehemently contends that the evidence of P.W.1 is very clear, cogent and
\nconsistent. There is no infirmity to disbelieve her evidence. P.W.2 has corroborated
\nthe evidence of P.W.1 in material particular. He further submits that victim is an
\nAdivasi lady. Therefore, the trial court has rightly convicted the accused-appellant
\nunder section 376 I.P.C. read with section 3(2) (v) of S.C. & S.T. (P.A.) Act.\n<\/p>\n
8.                    Perused the LCR. P.W.1 is the victim. She stated that on the
\ndate of occurrence while she was carrying fire wood, she saw the accused-
\nappellant in the Dobiri forest. The appellant told her that fire wood were lying inside
\nthe forest and asked her to go and collect the same. But she did not go. Then the
\nappellant came, caught hold of her waist and dragged her to a distance. The victim
\n(P.W.1) was all along protesting. The accused-appellant felled the victim down,
\nundressed her and forcibly committed sexual intercourse. While she was shouting,
\nthe accused gagged her mouth. In course of occurrence P.W.2 came to the spot
\nand on his protest the accused-appellant fled away. Then she went to the house of
\n                                           4<\/span><\/p>\n
P.W.3 and narrated the occurrence before her. P.W.3 accompanied the victim to
\nher house and after reaching there the victim narrated the occurrence before her
\nhusband P.W.4.     P.W.1 has also stated in her evidence that she had worn glass
\nbangles which were broken when the accused dragged her and committed rape on
\nher. In cross-examination, P.W.1 has clarified that hearing her shouts P.W.2 came
\nto the spot and soon after he came the accused left her and fled away. P.W.2 is an
\neye witness. He stated in his evidence that while he was returning from his land
\nthrough Dobiri jungle he heard shouts of P.W.1, immediately rushed to the spot and
\nfound that P.W.1 was lying on the ground and the accused-appellant was on her.
\nWhen P.W.2 shouted, the appellant left P.W.1 and fled away. In cross-examination
\nhe specifically stated that he saw the accused was on P.W.1 who was lying on the
\nground. Nothing has been elicited from his cross-examination to discredit his
\ntestimony. P.W.3 is a post occurrence witness. She stated in her evidence that
\nP.W.1 came weeping to her (P.W.3’s) house and told her that the accused
\ncommitted rape on her. She admitted in cross-examination that there was dispute
\nbetween the accused and P.W.4, the husband of the victim. P.W.4 is the informant
\nand husband of the victim. He in his evidence stated that he heard the occurrence
\nfrom the victim, went to the police station and lodged FIR. He denied about the
\ndispute with the appellant. P.W.5 is another post occurrence witness. He stated
\nthat P.W.4 came to his house and stated about the occurrence. He went to the
\nhouse of P.W.1 and also heard the occurrence from her. P.W.6 is the doctor. She
\nstated that on 07.09.1993 she examined the victim on police requisition and found
\nno external or internal injury. The victim had already attended bath and toilet before
\nher examination. In cross-examination she specifically stated that she found no
\ndead or living spermatozoa and sign of commission of sexual intercourse within 24
\nhours.   P.W.7 is the A.S.I. of police who registered the case, investigated the
\nmatter, seized the broken bangles from two places, prepared the seizure lists under
\nExts. 2 and 3 and arrested the accused. He handed over the charge of
\ninvestigation to P.W.8 on 06.09.1993. P.W.8 tested the witnesses examined by
\nP.W.7, received the reports of the Medical Officers, sent the wearing apparels of
\nthe accused and the victim for chemical examination and submitted charge sheet.\n<\/p>\n
                                              5<\/span><\/p>\n
9                    On scrutiny of the evidence on record it transpires that the
\nvictim P.W.1 has unequivocally stated that on 04.09.1993 she had been to Dobiri
\njungle for collecting firewood. There, the present appellant forcibly dragged her
\nand committed rape on her in spite of her protest. When she raised hullah, the
\nappellant gagged her mouth with his hand. P.W.2, who came to the spot hearing
\nthe hullah of the victim, witnessed the occurrence. On being protested by P.W.2,
\nthe present appellant left the victim and fled away from the spot. There is no reason
\nto disbelieve the evidence of P.Ws. 1 and 2. Immediately after the occurrence,
\nP.W.1 came to the house of P.W.3 and narrated the incident. P.W.3 accompanied
\nher to her house and narrated the incident before P.W.4, the husband of the victim.
\nP.W.5, the seizure witness, has categorically proved seizure of broken bangles and
\nalso seizure of the wearing apparels of the victim as well as the accused under
\nExts.2 and 3. P.W.6 is the doctor, who examined the victim three days after the
\noccurrence. She specifically stated that the victim had already attended bath and
\ntoilet before her examination. She also admitted in cross-examination that there
\nwas no sign of commission of sexual intercourse within 24 hours. Thus, it cannot
\nbe said that the medical evidence militates against the prosecution case inasmuch
\nas the alleged rape had been committed on P.W.1 three days ago. From the above
\nmedical evidence, it cannot be conclusively said that no rape had been committed
\non the victim on the date of occurrence.\n<\/p>\n
10.                  As regards commission of offence under Section 3(2)(v) of the
\nS.C. & S.T. (P.A.) Act 1989, it is the settled principle of law that mere fact that the
\nvictim happened to be a girl belonging to the scheduled caste or scheduled tribe
\ndoes not attract the provisions of the said Act. In order to attract the mischief of
\nsection 3(2)(v) of the S.C. & S.T. (P.A.) Act, it is the duty of the prosecution to lead
\nevidence to the effect that rape was committed on her because she belonged to the
\nscheduled caste community. This ratio has been decided by the apex Court in
\nRamdas & Ors v. State of Maharashtra, AIR 2007 S.C. 155. In the present case,
\nexcept the fact that the victim belonged to the S.T. community, there is no other
\nevidence to prove commission of offence under section 3(2)(v) of the S.C. & S.T.
\n(P.A.) Act. Therefore, the conviction of the appellant under section 3(2)(v) of the
\nS.C. & S.T. (P.A) Act has to be set aside.\n<\/p>\n
                                            6<\/span><\/p>\n
11.                  In view of the foregoing discussions, this Court affirms the
\nconviction of the appellant under Section 376 IPC and sets aside that under
\nSection 3(2)(v) of the S.C. & S.T. (P.A) Act.\n<\/p>\n
12.                  Coming to the question of sentence, this Court finds that the
\noccurrence took place in the year 1993 and the appellant was convicted on
\n12.12.1994 by the trial court.     His conviction was set aside by this Court on
\n21.01.2004 and the appellant was acquitted. The acquittal of the appellant having
\nbeen appealed against by the State, the apex Court by judgment dated 16.12.2008
\nremitted the matter back to this Court for fresh hearing and disposal. The appellant
\nis languishing in custody since 25.03.2009. On consideration of the totality of the
\nfacts and circumstances of the case and in view of the facts that the appellant is
\nacquitted of the charge under Section 3(2)(v) of the S.C. & S.T. (P.A.) Act and that
\nthe offence was committed in the year 1993 and criminal proceedings lasted for
\nmore than 16 years which has caused a lot of mental agony and expenses to the
\nappellant, the life imprisonment as imposed by the trial court is set aside and the
\nappellant is sentenced to undergo rigorous imprisonment for four years.\n<\/p>\n
13.               In the result therefore, the Jail Criminal Appeal is allowed in part.\n<\/p>\n
                                                        ………………………….\n<\/p>\n
                                                         Pradip Mohanty,J.\n<\/p>\n
B.K.PATEL, J. I agree.\n<\/p>\n
                                                         ………………………..\n<\/p>\n
                                                           B.K.Patel, J.\n<\/p>\n
Orissa High Court, Cuttack
\nDated 17th. December.,2009\/Routray\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Sukru Gouda vs State Of Orissa on 17 December, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-91312","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nSukru Gouda vs State Of Orissa on 17 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sukru-gouda-vs-state-of-orissa-on-17-december-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sukru Gouda vs State Of Orissa on 17 December, 2009 - 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