MANGULU JENA vs STATE OF ORISSA

S. K. SAHOO, J.

The appellant Mangulu Jena faced trial in the Court of learned Adhoc Additional Sessions Judge, Fast Track Court, Kenojhar for offences

punishable under sections 376 and 306 of the Indian Penal Code on the accusation that he committed rape on the victim on 30.11.2011 and thereby

abetted the commission of suicide by the victim on 04.12.2011.The learned trial Court vide impugned judgment and order dated 06.09.2012 found the

appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- (rupees five

thousand), in default, to undergo rigorous imprisonmentfor six months under section 376 of the Indian Penal Code and rigorous imprisonment for five

years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergorigorous imprisonment for one year under section 306 of the Indian

Penal Code and both the substantive sentences were directed to run concurrently.

The prosecution case, in short, is that the victim was aged about seventeen years at the time of occurrence and as per the first information report

lodged by P.W.1 Chintamani Jena, the grandfather of the victim, on 30.11.2011 while the victim had been to the village pond locally known as

‘Sindurigahiri Pokhiri’ for taking bath, the appellant committed rape on her and out of shame, the victim committed suicide coming in front of a

running train.On the first information report, Keonjhar Town P.S. Case No. 237 of 2011 was registered on 04.12.2011 under sections 376, 306 of the

Indian Penal Code.P.W.10 Tusar Kanta Sethy was the S.I. of Police attached to the Town police station, Keonjhar and he was directed to investigate

the case by the Inspector in Charge. During course of investigation, P.W.10 examined the informant (P.W.1) and he deputed constable to guard the

dead body lying on the railway track. As it was dark at the spot on that night, he could not prepare the spot map. On the next day, he prepared the

spot map (Ext.10), examined the witnesses and recorded their statements and held inquest over the dead body. The leg of the body was severed from

the trunk for which the investigating officer prepared three inquest reports, one was of the severed leg, the other was of the trunk and the third one by

joining the trunk with the severed leg. He sent the dead body to the District Headquarters Hospital, Keojnar for post mortem examination and from the

spot, he seized blood stained stone, sample stone under seizure list marked as Ext.3. P.W.6 Dr. Minerva Samal, Medicine Specialist attached to

District Headquarters Hospital, Keonjhar conducted post mortem examination over the dead body on 05.12.2011 and she proved her report as Ext.5

and opined the cause of death due to hemorrhage and shock following injuries to the vital organs and crushed injury over the left foot. P.W.10

collected the pubic hair, vaginal swab of the victim from the autopsy surgeon along with her wearing apparels under the seizure list (Ext.4). On

06.12.2011 the appellant was arrested and his wearing apparels were seized under seizure list (Ext.7). The appellant was sent to the District

Headquarters Hospital, Keonjhar for collection of his pubic hair, semen sample, blood sample and for medical examination and the pubic hair and

semen samples of the appellant were seized under seizure list Ext.3. P.W.10 received the post mortem examination report and also the medical

examination report of the appellant. He sent the material objects to the S.F.S.L., Rasulgarh through Court and took the assistance of the scientific

team who visited the spot. After completion of investigation, he submitted charge sheet against the appellant under sections 306 and 376 of the Indian

Penal Code.

3.During course of trial, the prosecution examined eleven witnesses. P.W.1 Chitamani Jena was the grandfather of the victim and he is the informant

in the case. He stated that he came to know from P.W.2 about the occurrence, proceeded to the village and stated about the age of the victim to be

seventeen years. He further stated that the lodging of the first information report was delayed on the ground of stigma likely to be caused on the

victim. He further stated about the commission of the suicide by the victim and her body lying on the railway track. P.W.2 Smt. Lata Jena was the

mother of the victim and she stated the age of the victim to be seventeen years. She further stated that on the date of the occurrence, the victim while

returning from the village pond crying disclosed before her about the occurrence regarding commission of rape on her by the appellant. She further

stated that about the reluctance on the part of the victim to lodge the F.I.R. because of possible humiliation. She further stated about the commission

of suicide by the victim.

P.W.3 Goura @ Gorachand Naik was the constable attached to the Town police station, Keonjhar and he stated about the seizure of blood stained

stones and sample stones from the railway track as per seizure list marked as Ext.3, seizure of wearing apparels of the victim after post mortem

examination as per seizure list marked as Ext.4. P.W. 4 Smt. Chandini Jena was the aunt of the victim and she stated about the disclosure made by

the victim about the occurrence. P.W.5 Smt. Sabitri Jena stated that while the victim was returning from the pond side crying, she stated before her

regarding commission of rape by the appellant. P.W.6 Dr. Minerva Samal was the Medicine Specialist attached to District Headquarters Hospital,

Keonjhar who conducted post mortem examination report marked as Ext.5. P.W.7 Smt. Rebati Naik was the constable attached to Town police

station, Keonjhar and she stated about the seizure of the wearing apparels of the appellant under seizure list marked as Ext.7 and also about the

seizure of the semen and pubic hair of the appellant collected by the doctor under seizure list marked as Ext.3. He further stated about the seizure of

the vaginal swab collected by the autopsy surgeon and pubic hair under seizure list Ext.8. P.W.8 Danardan Jena is a witness to the inquest over the

dead body and he proved the inquest reports marked as Ext.2 and Ext.9. P.W.9 Bimbadhar Jena also stated about the disclosure made by the victim

regarding commission of rape by the appellant. P.W.10 Tusar Kanta Sethy was the Investigating Officer of the case. P.W.11 Dr. Sk. Quamar

Mohamed was the Medical Officer attached to the District Headquarters Hospital, Keonjhar who examined the appellant and proved his report

marked as Ext.15. The prosecution exhibited as many as fifteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report on amputated leg of the

deceased, Ext.3 is the seizure list of blood stained stones and sample stones, Ext.4 is the seizure list relating to seizure of wearing apparels of the

deceased, Ext.5 is the post mortem examination report, Ext.6 is the query report made by the police about rape on the deceased, Ext.7 is the seizure

list relating to the seizure of wearing apparels of the accused person, Ext.8 is the seizure list relating to seizure of seminal fluid and pubic hair collected

from the appellant, Ext.9 is the inquest report relating to amputed part of the body, Ext.10 is the spot map, Ext.11 is the inquest report on the dead

body of the deceased on the amputed leg and the other part of the body together, Ext.12 is the dead body challan, Ext.13 is the spot map relating to

spot of pond site where rape was committed, Ext.14 is the office copy of letter showing onward sending of the material objects for forensic analysis

and Ext.15 is the medical examination report of the appellant.

The defence plea is one of denial. 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 doctor P.W.6 is very much clear

that the deceased had committed suicide. The learned trial Court found the evidence of P.W.1 to be trustworthy and believable. It was further held

that the evidence of P.W.2 about her knowledge relating to the occurrence is very much clinching to fasten the guilt of the appellant in the letter and

spirit of section 32 of the Evidence Act. It was further held that the telling circumstance of the occurrence of commission of suicide, an aftermath of

rape is surfaced with overwhelming evidence, so foisting a case out of land dispute cannot be believable. The learned trial Court further held that the

evidence of P.W.4 is having ample corroboration to the case of the prosecution that rape on the deceased was the cause and commission of suicide

by her is the effect thereon. It was further held that the evidence of P.W.5 is that seeing the deceased coming crying from the pond side and her

immediate statement before the witness is res gestae evidence which is exception to the hearsay rule which is admissible under section 6 of the

Evidence Act.The learned trial Court further held that the evidence of witnesses are forming a ring of truth about the occurrence and there is no

material whatsoever elicited by way of cross-examination or nothing was brought on record on adducing any defence to the fact to disbelieve the case

of the prosecution and there is no compelling reason to disbelieve the case of the prosecution only on the ground that there was boundary dispute

between the two families. The learned trial Court further held that the victim committed suicide on being frustrated by the heinous and barbaric act of

rape on her and her chastity was her prime possession which was looted by the appellant, so she lost all future hope of leading a normal life in the

mainstream of the society and she took extreme step of commission of suicide.It was further held that the act of forcible rape on the virgin girl, the

victim-deceased and her commission of suicide thereafter is having a live link to believe the case of the prosecution. It was further held that the case

of the prosecution is required to be appreciated on the basis of the circumstantial evidence and the reliability of the evidence of witnesses who gave

res gestae evidence and conclusive circumstances pointing to the guilt of the appellant is well surfaced.

6.Mr. Chitta Ranjan Sahu, learned counsel appearing for the appellant while challenging the impugned judgment and order of conviction contended that

there was inordinate delay in the lodging of the F.I.R. and since the evidence is forthcoming that there was boundary dispute between the parties,

there is every possibility of false implication of the appellant by the family members of the victim after her death. It is further contended that there is

no live link between the commission of rape, if any and the commission of suicide and therefore, the learned trial Court erred in convicting the

appellant under sections 376 and 306 of the Indian penal Code. It is further contended that in absence of any injury noticed by the doctor conducting

post mortem examination on the private part of the body of the victim, the evidence relating to the rape cannot be accepted and therefore, it is a fit

case where benefit of doubt should be extended in favour of the appellant. Mr. Priyabrata Tripathy, learned Additional Standing Counsel on the other

hand supported the impugned judgment and submitted that the res gestae evidence adduced by number of prosecution witnesses regarding the

disclosure of the victim about the commission of rape on her by the appellant has remained unshaken and the conduct of the victim after the incident in

remaining in a state of depression and disclosing before her family members to end her life and ultimately committing suicide is clinching and therefore,

the learned trial Court has rightly convicted the appellant under sections 376 and 306 of the Indian Penal Code.

There is no direct evidence relating to commission of rape as the victim is dead so also about commission of suicide. The prosecution is sought to

establish its case by way of circumstantial evidence. Law relating to the appreciation of evidence in a case which is based on circumstantial evidence

is clear and it is required to be proved by the prosecution that each of the circumstances has been clearly established beyond all reasonable doubt and

the circumstances cannot be explained under any other hypothesis. The circumstances taken together should form a complete chain unerringly

pointing towards the guilt of the accused that it is the accused and accused alone and none else who has committed the crime.

In this case, the occurrence in question took place on 30.11.2011 and the victim had gone to take bath in the village pond, which is locally known as

‘Sindurigahiri Pokhiri’. She was found returning from the pond side in a crying condition and on the way, she met P.W.5, P.W.9 and then P.W.2

and disclosed about the incident before each of them. P.W.5 has stated that at about 11.00 a.m. she found the victim came crying from the pond side

and stated before her that the appellant committed rape on her. She further stated that as the victim could not tolerate the stigma of rape on her by the

appellant who was an old man, she committed suicide on the railway track. Nothing has been elicited in the cross-examination to disbelieve the

evidence of P.W.5. P.W.9 Bimbadhar Jena has also stated that when he saw the victim coming weeping from the pond side, on his query to her as to

why she was crying, she stated that she was raped by the appellant. He further stated as the appellant raped the deceased and the deceased could not

tolerate the shame for which she took extreme step of commission of suicide. In the cross-examination, nothing has been elicited to disbelieve the

evidence except that he has stated that he has not been examined by the police in connection with the case. P.W.2 was the mother of the victim and

she stated that at about 11.00 a.m. while she was proceeding towards pond to take bath, at that time the deceased was coming from the pond side

crying and on her query, she stated that the appellant forcibly committed rape on her finding her alone in the pond. She further stated that she

informed her parents and her father suggested to lodge the F.I.R. but as the victim was very remorseful and she stated that since an old man had

committed rape on her and caused many wounds her, she would get humiliation on the lodging of the F.I.R. and the victim initially did not agree to

lodge the F.I.R. She further stated that the victim was telling to lose her life and after four days of the occurrence, the victim committed suicide.

In the cross-examination it has been brought that the house of the appellant was adjacent to the house of P.W.2 and there was a quarrel between the

two families relating to the boundary dispute. Even if there was civil dispute between the parties beforehand, it cannot be accepted as contended by

the learned counsel for the appellant that for the said reason, the appellant was falsely implicated in the case. P.W.4 has also stated that the victim

who was her niece narrated before her that she had been to take bath and the appellant finding her alone committed rape on her after removing her

dress and inserting his penis on her private part. She further stated that the victim was remaining remorseful due to forcible rape on her. Nothing has

also been brought out in the cross-examination to discard the evidence of P.W.4.Therefore, the cumulative effect of the evidence of P.Ws.2, 4, 5 and

9 is that immediately after the incident, the victim narrated about the incident of rape on her by the appellant before her mother and others and at that

point of time she was found crying. She was also reluctant for lodging the F.I.R. as the appellant was an old man having children and she was

expecting humiliation in the society which was very natural. The immediate disclosure by the victim after the occurrence is admissible as res gestae

under section 6 of the Evidence Act. Section 6 is an exception to the general rule whereunder hearsay evidence becomes admissible. What is required

to be established is that it must be contemporaneous with the acts and there should not be any interval which allowed fabrication of evidence.

The evidence of the victim regarding commission of rape was challenged on the ground that the doctor who conducted post mortem examination did

not notice any injury on her private part. P.W.6 conducted post mortem examination and she noticed crushed injury on the left foot, contusion over the

right buttock, lacerated would over the right dorsum of hand and also the compression of the head. She stated that there was no injury or bite mark

present over the breast and private parts of the deceased. No foreign body was found on the private part and no injury was found in or around the

private part and the hymen was intact. She further stated that no mark of injury on the private part of the dead body was found suggesting sexual

intercourse. It cannot be lost sight of the fact that the occurrence in question took place on 30.11.2011 and the victim committed suicide on 04.12.2011

and the post mortem was conducted on 05.12.2011. Therefore, the non-finding of any injury on the private part of the deceased cannot be a factor to

discard the evidence of commission of rape which has been proved otherwise by the prosecution through the evidence of the aforesaid four

witnesses.It has been brought on record that the deceased was very much upset after the incident. She even disclosed before her mother (P.W.2) to

loose her life. It is pertinent to note that P.W.2 has stated that when her son came and learnt about the occurrence, he went to the house of the

appellant along with his father and confronted the occurrence before the sons of the appellant but the sons of the appellant instead of becoming

submissive stated that if the appellant had committed rape on the deceased, the deceased should be left with the appellant. Such type of conduct by

the family members of the appellant must have caused further humiliation to the deceased compelling her to take extreme step to end her life.

Though it was contended by the learned counsel for the appellant regarding delay in lodging the first information report but it can be lost sight of the

fact that in such type of cases, there used to be delay in approaching the police because the question of prestige of the victim and family members is

at stake and usually report is lodged after consultation among the family members which takes some time. In this case, the evidence is forthcoming

that the victim was reluctant to lodge any first information report as she was expecting humiliation in the society. P.Ws.1 and 2 have stated in that

respect. Therefore, the delay of four days in lodging of F.I.R. is not a factor to disbelieve the prosecution case.The surrounding circumstances under

which the dead body was found on the railway track, the post mortem report finding and statement of the deceased before her mother that she would

lose her life on account of the incident clearly establishes that the deceased had committed suicide and the conduct of the appellant has got proximate

link with the commission of suicide of the victim. The use of words in section 32(1) of the Evidence Act “circumstances of transaction which

resulted in his death†is apparently of wider amplitude than saying “circumstances which caused his deathâ€. There need not necessarily a direct

nexus between “circumstances†and death. It is enough if the words spoken by the deceased have reference to any circumstance which has

connection with any of the transaction which ended off in the death of the deceased. Such statement would also fall within the purview of section

32(1) of the Evidence Act. In case of abetment of suicide, statement made by the deceased prior to her death to her mother and other family

members is admissible in evidence if it relates to the cause of her death or circumstances of transaction which resulted in her death. Since I am of the

view that the circumstance of death of the victim has got proximate relation with the commission of rape, therefore, the statement made by the

deceased immediately after the occurrence is admissible under section 32(1) of the Evidence Act.

8.She was raped at a tender age by an aged married and licentious person. Psychological traumatic experience was apparent in her. She cried in

distress. She disclosed before her family members about the devilish act committed by the appellant but she was not courageous enough to fight for

justice. She was reluctant to report the matter before police for fear of shame and embarrassment in the society. She perhaps did not get the mental

support from the persons around her to raise her voice against the misdeed. She became a broken girl, emotionally imbalanced. She started fearing to

live and felt every moment of her life is going to give her immense pain and endless suffering. Perhaps in a state of anxiety, she decided to end her

life. Death was the greatest loss to her which left her family hurt and wounded forever.

9.In view of the foregoing discussions, I am of the considered view that the prosecution has established its case beyond all reasonable doubt against

the appellant and the learned trial Court has not committed any illegality in convicting the appellant under sections 376 and 306 of the Indian Penal

Code. The sentence which has been imposed by the learned trial Court cannot be said to be excessive under any stretch of imagination. In the result,

the criminal appeal being devoid of merits, stands dismissed.