Niranjan alias Tima Jena and Seven others vs State of Orissa

P.K. Patra, J.—The appellants have challenged the judgment dated 19-4-1997 passed by Shri M. C. Ray, Additional Sessions Judge,

Balasore in Sessions Trial No. 7/21 of 1993 convicting them under sections 376(2)(g)/366 of the Indian Penal Code (for short ''I. P. C.'') and

sentencing each of them to undergo rigorous imprisonment for seven years under the first count and to rigorous imprisonment for three years under

the second count, with direction that the sentences would run concurrently, The appellants have been acquitted of the charge u/s 379/34, I. P. C.

2 Prosecution case runs as follows :--

The informant (p. w. 1) is a resident of village Begunia under Simulia Police Station in the district of Balasore, who is the father of the victim girl (p.

w 4), a minor aged below sixteen years, Appellant Nos. 2 and 3-Banshidhar ]ena and Rabindra alias Rabi Dalei respectively, are co-villagers of

the informant (p. w. 1), whereas appellant Nos. 1, 4, 5, 6, 7 and 8, namely, Niranjan alias Tima Jena, Kalandi Charan Jena, Ramakanta Jena,

Madan alias Subash Jena, Chhayakanta Jena alias Chhotu Jena and Makardhar Jena respectively, are residents of Gopibandha, an adjoining

village of Begunia. The informant runs a grocery shop at a little distance from his house in the same village. It is alleged that on 8-9-1991 at about 7

p. m., the victim (p. w. 4) went to the shop of her father (p. w. 1) taking tea for him and immediately returned back after serving tea to her father.

P. w. 1 heard that p. w. 4 had been kidnapped by somebody and hence he searched for her the whole night, but in vain. The wife of p. w. 1 found

a letter in the box of p. w. 4 which had been written by appellant No. 6 - Madan alias Subash Jena, to p. w. 4 describing himself as husband and

p. w. 4 as his wife. P. w. 1 suspected appellant No. 6 who used to come to his shop during his absence and talk with p. w. 4, P. w. 1 had

protested this behaviour of appellant No. 6 and had asked him not to come to his shop. Appellant No, 6 was serving as a labourer under p w, 1

prior to the occurrence. P. w. 1 lodged a written report (Ext. 1) before the S. I. of Simulia Police Station (p. w. 8) who treated the same as F. I.

R. and registered the case and took up investigation. During investigation, p. w. 8 visited the spot, examined witnesses, seized the letter written by

appellant No, 6 to the victim, verified the School Admission Register where the victim was reading and found her date of birth as 10-9-1978. P.

w. 8 got information on 12-9-1991 that the victim was in the house of one Baidhar Jena of village Deulia under Soro Police Station and went to

Soro Police Station on 13-9-1991 and requested the O.I.C. of that Police Station to render him police help to raid the house of Baidhar Jena and

on the same day at 3 a. m.p. w. 8 and some police officers of Soro Police Station raided the house of Baidhar Jena, but could not trace out the

victim girl there. Somebody disclosed before p. w. 8 that on 10-9--1991 the victim girl was brought to that house by appellant Nos. 1, 4, 6 and 8

and those four appellants stayed there for 2/3 days and in the morning of 12-9-1991 appellant Nos. 4 and 6 left for village Sabira with the victim

girl and that they might be staying in the house of any of their relation in village Talanagar. On 13-9-91 at 4 a.m. p. w. 8 raided the house of one

Nakula Jena of village Talanagar but could not find the victim girl there. P. w. 8 got information that appellant Nos. 4, 5, 7 and 8 had left for village

Kabirpur with the victim girl, P w. 8 then went to village Kabirpur and got information that the appellants had left for village Bansia with the victim

girl, leaving two bicycles in the house of one Bidyadhar Behera and those bicycles were seized. P. w. 8 went to village Bansia, raided the house of

one Gouranga Jena and found the victim girl with appellant Nos. 1, 4, 7 and 8. He apprehended these four appellants, seized one Lungi and a

pant, a frock the victim and a torchlight and brought the victim girl and the above named appellants to the Simulia Police Station. The victim girl

was then sent to Bhadrak Subdivisional Hospital for her medical examination. P. w. 8 found a letter from the shirt pocket of appellant No. 1 and

seized the same. On 15-9-1991, p, w. 8 arrested appellant Nos 1, 4. 7 and 8 forwarded them to court in custody. The statement of the victim girl

was recorded u/s 164, Cr. P. C. by the J. M. F. C , Soro and thereafter on 19-9-1991 p. w. 8 moved the J. M. F. C, Soro for medical

examination of the aforesaid four appellants. P. w 8 sent the wearing apparels of the victim girl to the D. F. S. L, Balasore for examination on 5-

10-1991. On 16-12-1991 he received buck the wearing apparels of the victim girl from the D. F. S L. Balasore and sent the same to the S F. S.

L., Rasulgarh for chemical examination. After completion of investigation as it revealed a prima facie case against the appellants under sections

366/120B/ 376/506/379/34, 1. P. C. p. w. 8 submitted chargesheet against the eight appellants showing four of them (appellant Nos. 2, 3,5 and

6) as absconders who subsequently surrendered in court and all of them stood their trial for offences under sections 366/379/34, I. P. C. and u/s

376(2)(g) I.P.C..

The defence plea is one of denial and false implication due to quarrel with the informant by the appellants who were demanding higher wages as

labourers.

In order to bring home the charge against the appellants, prosecution has examined eight witnesses, of whom p. w. 1 is the informant, p. w. 4 is

the victim girl, p. w. 2 is a co-villager of the informant who has stated to have seen five of the appellants talking on the ridge of a canal prior to the

occurrence, p. w. 3 is a witness to the seizure, p. w. 5 is another witness to the seizure, p, w. 6 is the medical officer who medically examined the

victim girl, p. w. 7 is a resident of village Sabira from whom the investigating officer enquired about the victim girl, but he did not support the

prosecution case and turned hostile. P. w. 8 is the investigating officer. The defence has examined six witnesses in support of its case, D. ws. 1 and

2 have stated regarding the demand for higher wages by the appellants who were working as labourers, d. w. 3 has denied detention of the victim

girl in his house by the appellants, d. w. 4 has denied the detention of the victim girl in his house, d. w. 5 has denied the seizure of any article in his

presence by the investigating officer and the fact of rescuing the victim girl from his house by the investigating officer. D. w. 6 is a resident of village

Telia Sabira who has denied that the appellants had come to that village with the victim girl,

Mr. B. Panda, learned counsel for the appellants, and the learned Additional Government Advocate appearing for the State were heard at

length. Mr. Panda challenged the impugned judgment contending that the learned Additional Sessions Judge has failed to properly appreciate the

evidence on record and has come to the erroneous conclusion that the, appellants kidnapped the victim firl and committed gang rape on her.

Learned Additional Government Advocate supported the impugned judgment as unassailable. The rival contentions require careful consideration.

The medical evidence on record as well as the chemical examiner''s report do not support the prosecution case. The medical officer (p. w. 6)

who medically examined the victim girl on 14-9-1991 and submitted her report (Ext. 5) found that there was no sign of recent sexual intercourse

on the victim girl since there was no mark of injury on her private parts, like brests, cheeks and other features noticed during her medical

examination. The chemical examiner''s report (Ext. 11) reveals that semen was not detected on the frock or pant sent for chemical examination.

None of the appellants has been medically examined though four of them were sent for medical examination. In view of the above, the statements

of p. ws. 1 and 4 require careful scrutiny before placing any reliance on them to base a conviction of the appellants, since it is well settled in law

that a conviction of the accused can be based on the sole testimony of the prosecutrix if it is free from infirmities and inconsistencies and is found to

be reliable, although there may not be corroboration from the medical evidence.

The F. I R. (Ext. 1) reveals that the victim girl (p. w. 4) was missing from 7 p.m. on 8-9-1991, and the letter (Ext. 2) was found from the box of

p. w, 4 which was written by. appellant No. 6 to her describing him as the husband and p. w. 4 as the wife, and that some days prior to that there

was altercation between the informant and appellant No. 6, for which the informant suspected appellant No. 6 to have kidnapped his daughter-p.

w. 4, in connivance with one teacher, named, Babaji Singh. The said Babaji Singh has not been implicated in the case. The informant (p. w. 1) has

stated that appellant No. 6 used to come to his shop during his absence and talk with p. w. 4 and that prior to that appellant No. 6 was working as

a labourer under him. He had protested this behaviour of appellant No. 6 and had asked him not to come to his shop. This statement of p. w. 1

coupled with the letter Est. 2 would indicate that appellant No. 6 had developed amorous relationship with the victim girl-p. w. 4 while serving as

the fieled servant of p. w, 1. According to p. w. 1. p. w. 4 came to his shop on the date of occurrence at 7 p. m. and after serving tea to him

returned back from the shop. He had not whispered a words about his giving any money to p. w. 4, but the victim girl (p. w. 4) has stated that her

father gave her Rs. 1,400.00 for handing over the same to her mother. According to p, w. 4, on her way back home she went to a pond (GADIA)

to wash her feet and at that time appellant No, 3 called her by blowing whistle, but she did not go near him and while she was coming out of the

pond, appellants 2. 3. 4 and 6 bodily lifted her to the outskirt of the village to the Harijan Sahi and from there she was taken to a tank known as

Radhiani Pokhari and when she cried, the appellants threatened her with murder and she kept quiet while going to the tank where the other four

appellants were present. Further p. w. 4 has stated that the four appellants who were present at the tank told the other appellants that they were

proceeding to village Kutari to give information in the house of one Baidbar Jena and so saying they left for village Kutari. According to p. w. 4,

the four appellants present at the tank had sexual intercourse with her one after the other, threatening her with murder in case she shouted and so

she kept quiet. Further, p. w. 4 has stated that after comitting sexual intercourse with her, the four appellants took her to the house of Baidhar Jena

at village Kutari where she stayed with the wife, daughter and daughter-in-law of Baidhar Jena. After being kept there for one night, she was taken

to village Sabirpur by four appellants, namely, appellant Nos. 1. 3. 7 and 8, and on the way to Sabirpur those four appellants had sexual

intercourse with her under a banian tree and thereafter she was taken to the house of some person at village Sabirpur whose name she did not

know and there she was kept for one night and then was taken to village Tehapara by those four appellants. According so her, those four

appellants had sexual intercourse with her on the way to village Teliapara where she was kept in the house of a person whose name she did not

know. On the next evening the other appellants reached the house where she was kept and informed that police party was coming to that village.

She was then taken to village Bansia and on the way to Bansia she was again raped by the appellants. She was detained in the house of some

persons at Bansia whose name she did not know. On the next morning, the police party reached village Bansia and rescued her from the house

where she had been detained. Appellant Nos. 1, 4, 7 and 8 were present in that house who were apprehended by police whereas the other four

appellants had left the said house prior to arrival of police. She has also stated that her pant (M O. I) and frock (M. O. II) were seized by police, if

her statement is believed to be true that all the appellants had discharge semen while committing sexual intercourse with her at all the places stated

by her, stains of semen would have been detected on M. Os I and II. had p. w. 4 not washed them before the seizure. But p. w. 4 stated that she

had washed her pant and frock while taking bath, The chemical examiner''s report (Ext. 11) reveals that no mark of semen was detected on M. Os

I and II. P. w. 4 has stated to have been medically examined at Bhadrak Sub-divisional Hospital immediately after her rescue from village Bansia,

but she has added that after being brought to Simulia Police Station she was again sent for medical examination, but she was not medically

examined and brought back to Simulia Police Station from where she was taken to her house. She has further stated that again she was sent to

Bhadrak for medical examination. In para-8 of her statement p. w. 4 has stated that appellant No. & was a labourer in her house and he had been

removed from service by p. w. 1 three months prior to the occurrence and that appellant No. 6 had misbehaved with her using obscene words and

proposing to marry her. She has admitted to have received a letter from appellant No. 6 fifteen days prior to the occurrence and has stated that as

she could not read, she had kept the letter (Ext. 2) in her box. She has put her LTI on her statement in court, but at the same time she has stated

that she was acquainted with the handwriting of p. w. 6 who used to maintain account in the shop of her father and she identified the handwriting of

p. w. 6 on Ext. 2. The investigating officer (p. w. 8) has stated to have verified the Admission Register of the School where the victim (p. w. 4)

was reading and has ascertained her date of birth as 10-9-1978 which mean she was more than thirteen years'' old at the time of the occurrence

and she had studied in school. Though the School Admission Register has not been seized by the investigating officer, it is evident that p. w. 4 was

reading in school and she was literate, but she has gone to the extent of putting her LTI on her deposition to show that she was illiterate and was

unable to read the letter (Ext. 2).

Thus it is found that the victim girl (p. w. 4) has not hesitated to speak falsehood in court to implicate the appellants in this case which is

apparent from her statement. She has stated that she had brought Rs. 1,400.00 from her father from the shop which is not supported by her father

(p. w. 1). Though she has stated that she went to the pond for washing her feet, it cannot be believed to be true as in darkness she could not have

dared going to the pond alone. According to p. w. 4 she was raped by the appellants on the ridge of a tank, under a banian tree besides other

places including the house where female inmates were there. Not a single mark of injury on her body could be found during her medical

examination. No broken bangles have been seized. There was no sign of recent sexual intercourse. Her wearing pant and frock had no stain of

semen or blood, as per chemical examination report. In para-5 of her statement she has stated that after police rescued her from a house at village

Bansia, she was given a saree to put on and police seized her pant and frock (M. Os I and II). but in para-7 of her statement she has stated that at

Sabirpur she was given a saree by the daughter-in-law of the house-owner after she took bath and similarly at Teliapara she was also given a saree

by the daughter-in-law of the house-owner while she took bath and that she had washed her pant and frock. In the normal course of conduct, had

she been ravished against her will, she could not have remained silent when the appellants committed sexual intercourse with her several times at

several places and even she did not confided in the female inmates of the houses where she had been taken on different dates. There was no

resistance from her (p. w. 4) and her bangles were not broken. It appears from the materials on record that p. w. 4 had amorous relationship with

appellant No. 6 and might have eloped with him. But she has not hesitated to state downright falsehood in court with a view to rope in the

appellants at the instance of her fathet since they had quarreled with her father demanding higher wages from their masters as enhanced by

Government. The defence plea on this score cannot be lightly brushed aside, as it appears to be probable. Therefore the statement of the victim girl

p. w. 4 is found to be tainted with interestedness and bristling with inconsistencies and incongruities and is not unimpeachable. Hence reliance

cannot be placed on her sole testimony to base a conviction of the appellants in absence of any corroboration from the medical evidence, or any

other source.

In the case of Kamalakanta Patra v. State, reported in 1984 11 Crimes 713, when there was discrepancy in medical opinion and the statements

of the witnesses and the medical opinion was doubtful as to rape having been committed On the girl aged 17 to 19 years who was used to sexual

intercourse, this Court held that benefit of doubt was to be given to the accused, in the present case, the medical officer (p. w. 6) who medically

examined the victim girl (p. w. 4) has stated that here was no sign of recent sexual intercourse and no injury was found on the person of the victim

girl, specially on her breasts and cheeks. Regarding secondary ex character of the victim girl, she found well developed/breasts with primary areola

and nipple and well developed auxiliary and public hairs and there was old rupture of hymen and introitus admitted two fingers easily and no

abnormal vaginal discharge was found on P. V examination. The age of the victim girl was assessed at 14 to 16 years. In, her statement in cross-

examination p. w. 6 has stated that by recent sexual intercourse she meant sexual intercourse within five to seven days and that in case of struggle

and application of force there was possibility of injuries on the person of the victim and that in case of rape on a minor girl by a group of persons,

there was possibility of injuries on her private part She has further stated that when the introitus (opening of the vagina) admitted two fingers easily,

the victim might have been habituated to previous sexual intercourse. In the facts and circumstances as stated above, the decision referred to above

will he applicable to the present case. Similar views have also been taken in the following decisions relied upon by the learned counsel for the

appellants :--

Bijaya Kumar Christian Vs. State of Orissa,

1996 10 OCR 113 (Chhabi @ Ruturaj Nayak v. State of Orissa); and

1972 SCC Cri 827 (Rahim Beg and another v. State of Uttar Pradesh).

Keeping in view the decisions referred to above and on an analysis of the evidence on record, it is found that the learned Additional Sessions

Judge has erred in coming to the conclusion that the victim girl (p. w. 4) was kidnapped and gang raped by the appellants and hence the said

finding cannot be sustained in the eye of law and is liable to be set aside. Consequently the conviction of the appellants cannot be sustained and the

impugned judgment convicting the appellants is liable to be set aside and the appellants would be entitled to acquittal.

In the result, the Criminal Appeal is allowed. The conviction of the appellants under sections 376(2)(g)/366 of the Indian Penal Code and the

sentences passed thereunder in the impugned judgment dated 19-4-1997 passed by the Additional Sessions Judge, Balasore in Sessions Trial No.

7/21 of 1993 are set aside. The appellants are found not guilty of the charge and are acquitted. The bail-bonds of the appellants who are on bail be

discharged and the appellants who are in custody be set at liberty forthwith if their detention is not required in any other case.

Crl. Appeal allowed.