Orissa High Court
Kulamani Mohakud vs State Of Odisha on 9 December, 2021
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No.227 of 2008
From judgment and order dated 17.03.2008 passed by the Addl.
Sessions Judge -cum- Addl. Special Judge, Baripada in G.R. Case
No.431 of 2005/T.C. No.10 of 2007.
----------------------------
1. Kulamani Mohakud
2. Bala @ Chittaranjan
Hesa ....... Appellants
-Versus-
State of Odisha ....... Respondent
JCRLA No.78 of 2010
Chittaranjan Hesa ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellants: - Mr.Abhas Mohanty
(in both the cases) (Amicus Curiae)
For Respondent: - Mr. Arupananda Das
Addl. Govt. Advocate
----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 09.12.2021
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// 2 //
S.K. SAHOO, J. CRLA No.227 of 2008 has been filed by the
appellants Kulamani Mohakud and Bala @ Chittaranjan Hesa
which was presented before this Court on 13.05.2008 and
admitted on 08.09.2008.
JCRLA No.78 of 2010 was registered on the basis of
the prisoner's petition received from the appellant Bala @
Chittaranjan Hesa, which was admitted on 04.11.2013 after
condoning a delay of 502 days.
Since by the time of registration of JCRLA No.78 of
2010, the appeal preferred by the appellant Bala @ Chittaranjan
Hesa has already been admitted in CRLA No. 227 of 2008, this
JCRLA No.78 of 2010 is not maintainable and accordingly, the
same is disposed of.
Both the appellants faced trial in the Court of learned
Addl. Sessions Judge -cum- Addl. Special Judge, Baripada in G.R.
Case No.431 of 2005/T.C. No.10 of 2007 for offences punishable
under section 376(2)(g) of the Indian Penal Code and section
3(2)(v) of the S.C. & S.T. (PoA) Act, 1989 (hereafter '1989 Act').
Learned trial Court vide impugned judgment and order dated
17.03.2008 though acquitted both the appellants of the charge
under section 3(2)(v) of the 1989 Act, but found them guilty
under section 376(2)(g) of the Indian Penal Code and sentenced
// 3 //
each of them to undergo rigorous imprisonment for ten years
and to pay a fine of Rs.5,000/- (rupees five thousand) each, in
default of payment of fine, to undergo further rigorous
imprisonment for six months.
2. The prosecution case, in short, is that on 14.10.2005
the victim (P.W.20) along with some of her friends had been to
village Ghagarbeda to watch 'Dussehra' festival and after visiting
the festival, in the evening hours when they were returning to
their village by foot, on the way a Commander jeep came and
the driver of the jeep asked the victim girl and her companions
to board the jeep with the minimal charge of rupees five per
person and accordingly, all of them boarded the jeep. At that
point of time, there were three persons in the jeep including the
driver and subsequently another accused boarded the jeep. It is
the further case of the prosecution that after covering some
distance, four persons who were present in the jeep asked the
companions of the victim to get down from the jeep and pushed
them from the jeep, but they did not allow the victim to get
down from the jeep and took her inside a forest in that jeep. It is
the further prosecution case that inside the forest, all the four
accused persons committed gang rape on the victim one after
another. The companions of the victim, who were asked to get
// 4 //
down from the jeep, intimated about the same to P.W.1
Narendra Mohakud, who in turn intimated P.W.3 Mahendra
Mahanta to report the matter to the police. P.W.3 came to
Ghagarbeda police Outpost and intimated about the occurrence
to P.W.25 Lokanath Bhoi, the Sub-Inspector of Police attached to
the said outpost. On getting such information, P.W.25 along with
P.W.3 Mahendra Mahanta, P.W.5 Bichitrananda Giri and others
went in search of the victim girl as well as the Commander jeep.
It is the prosecution case that P.W.25 noticed the Commander
jeep coming from the side of Fulcom Chhak and he stopped the
vehicle, which was having registration No. OR-09-D-3444. In the
said jeep, the appellant no.1 Kulamani Mohakud and accused
Debendra Naik and Madhu Karua were present. P.W.25 took all
those three persons and the Commander jeep to Ghagarbeda
police outpost. While interrogation was going on, accused
Debendra Naik stealthily escaped from the police outpost, but
the appellant no.1 Kulamani Mohakud was detained in the police
outpost. P.W.25 along with accused Madhu Karua went in search
of the victim girl towards Fulcom Chhak, but he could not locate
the girl and returned to the outpost at about 12.30 midnight,
where he found that the appellant no.1 had escaped from the
outpost. Appellant no.2 Bala @ Chittaranjan Hesa came to the
// 5 //
police outpost to ascertain about the Commander jeep but he
was detained there in the night. On the same night at about
2.30 a.m., the victim, her father and four to five others came to
Ghagarbeda police outpost and the father of the victim, namely,
Budhiram Sayan presented the written report relating to the
commission of gang rape on the victim and he mentioned in the
report that while the victim and other women of her village were
returning to their village from the Yatra, on the way they
boarded the Commander jeep and the driver and three others
forced the other women to get down from the jeep at
Marichahudi and took the victim to Naluburu forest where they
committed rape on her by force.
It is the further prosecution case that after receipt of
the written information from the father of the victim, P.W.25
made station diary entry and prepared the required documents
to send the same to Raruan police station for registration of the
case along with the accused persons, namely, Bala @
Chittaranjan Hesa and Madhu Karua, but on the next day in the
early morning i.e. on 15.10.2005 both Madhu Karua and Bala @
Chittaranjan Hesa also escaped from the police custody when
they had gone to attend the call of nature. P.W.25 immediately
intimated P.W.26 Barini Das, the officer in-charge of Raruan
// 6 //
police station about the same and as per the direction of the
latter, P.W.25 went in search of the accused persons, but on
15.10.2005 in the afternoon at about 1.00 p.m., he received
information over phone that a violent mob set fire to
Ghagarbeda police outpost as they came to know about escape
of the accused persons from the outpost, for which the outpost
was completely set ablaze along with all the documents,
registers and the Commander jeep.
P.W.24 Kalabati Giri, the women constable attached
to Ghagarbeda police outpost lodged a written report (Ext.14)
before the officer in-charge of Raruan police station, in which she
not only narrated about the abduction of the victim, her rape,
earlier lodging of the report by the father of the victim, escape of
the apprehended accused persons from police custody, but also
the overt act committed by some persons in setting fire to the
outpost as well as jeep which was involved in the crime.
3. On the basis of such written report presented by
P.W.24, Raruan P.S. Case No.67 dated 16.10.2005 was
registered under section 376(2)(g) of the Indian Penal Code
against the two appellants so also Madhu Karua and Debendra
Naik.
// 7 //
P.W.26, the officer in-charge of Raruan police station
on receipt of the message regarding the disturbance in
Ghagarbeda police outpost, immediately rushed to the outpost
where he found that the outpost was completely burnt along
with all the documents, registers, articles including the
Commander jeep. He took up investigation of the case,
examined the informant and other witnesses including the victim
on 16.10.2005. The victim girl was sent for medical examination
on police requisition to Karanjia hospital. The appellant Kulamani
Mohakud was arrested on that day i.e. 16.10.2005 and his
wearing apparels were seized as per seizure list Ext.15. The
wearing apparels of the victim, i.e. one rose colour Punjabi
dress, one rose colour scarf, one ghee colour semij were also
seized in the police outpost as per seizure list Ext.16 on
16.10.2005. P.W.26 visited the spot on 17.10.2005 and
prepared the spot map marked as Ext.17. During spot visit, he
seized one red colour salwar, one chadi and one hair clip lying at
the spot as per seizure list Ext.5. P.W.27 Ashok Kumar Biswal,
the S.D.P.O. of Rairangpur Sub-division took over the charge of
investigation from P.W.26. P.W.26 as per the requisition
received from P.W.27 on 21.10.2005, seized the pubic hair,
sample vaginal swab, blood sample and vaginal smear at Raruan
// 8 //
police station on production by the constable as per seizure list
Ext.4. On 26.10.2005, the appellant Bala @ Chittaranjan Hesa
was arrested and brought to Ghagarbeda police outpost and his
wearing apparels were also seized as per the seizure list Ext.6
and P.W.26 intimated P.W.27 in that respect. On 27.10.2005
P.W.26 seized sample pubic hair, sample saliva of the appellant
Bala @ Chittaranjan Hesa as per seizure list Ext.10 and
thereafter the said appellant was forwarded to Court. P.W.26
also seized the caste certificate of the victim in presence of the
witnesses as per seizure list Ext.6 and he received the caste
certificate of the appellant no.1 Kulamani Mohakud, Madhu
Karua and Debendra Naik from the Tahasildar, Raruan. P.W.26
sent the x-ray plates of the victim to the Sub-divisional Medical
Officer, Karanjia for determination of her age and the report was
received by him.
P.W.27 after taking over investigation of the case
from P.W.26 on 17.10.2005, sent the appellant Kulamani
Mohakud for his medical examination and subsequently received
the medical examination report. He seized sample saliva, blood,
semen and pubic hair of appellant Kulamani Mohakud collected
by the doctor produced by the constable under seizure list
Ext.18. He forwarded the appellant Kulamani Mohakud to Court.
// 9 //
He also received the medical examination report of the victim as
well as the appellant Bala @ Chittaranjan Hesa and on
10.02.2006, on completion of investigation, he submitted charge
sheet against four accused persons including the two appellants
showing the accused Madhu Karua and Debendra Naik as
absconders.
4. After submission of charge sheet, the case was
committed to the Court of Session following due formalities,
where the learned trial Court framed the charges against the
appellants on 09.08.2007 and since the appellants refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
trial procedure was resorted to prove the guilt of the appellants.
5. During course of trial, in order to prove its case, the
prosecution has examined as many as twenty seven witnesses.
P.W.1 Narendra Mohakud was having a stationery
shop at village Maricha, before whom the companions of the
victim disclosed regarding the forceful abduction of the victim in
the vehicle, who in turn requested his friend Mahendra Mohanta
(P.W.3) to inform the matter to police.
P.W.2 Balaram Pingua is a post-occurrence witness.
P.W.3 Mahendra Mohanta stated that on being
informed by P.W.1 regarding the abduction of the victim, he
// 10 //
went to Ghagarbeda outpost and intimated about the occurrence
to P.W.25 and on the request of P.W.25, he accompanied him in
his motor cycle to P.W.1, where the companions of the victim
were there. On getting the information from the companions of
the victim regarding the incident, he along with other police staff
went towards Fulcom chhak and on the way, they found the
Commander jeep and on the direction of the police, the driver
stopped the vehicle and P.W.25 sat in the said jeep and directed
the jeep driver to take him to the police outpost. He further
stated that during the conversation between P.W.25 and the
persons present in the jeep, he heard the voice of accused
Madhu Karua. He further stated that on the next day, he came to
know that four persons were brought to the police outpost, but
those persons escaped from the police outpost and P.W.25 had
gone in search of them.
P.W.4 Dinabandhu Giri was the Gramarakhi attached
to Ghagarbeda outpost, who stated about the search of the
victim by P.W.25 and other police staff on the date of occurrence
along with him and detention of the Commander jeep along with
the co-accused Madhu Karua. He also stated about the detention
of the appellant Bala @ Chittaranjan Hesa in the police outpost,
who came to ascertain about the Commander jeep.
// 11 //
P.W.5 Bichitrananda Giri was the police constable
attached to Ghagarbeda police outpost, who accompanied
P.W.25 in the search of the victim and stated about detention of
the Commander jeep along with the appellant Kulamani
Mohakud, accused Madhu Karua and Debendra Naik. He also
stated that on being asked about the whereabouts of the driver
of the vehicle, namely, appellant Bala @ Chittaranjan Hesa, they
told that he was with the victim girl in the forest. He has also
stated regarding fleeing away of the accused Debendra Naik,
Madhu Karua as well as appellant Bala @ Chittaranjan Hesa from
the police outpost.
P.W.6 Chandra Mohan Tiria was the A.S.I. of Police
attached to Ghagarbeda police outpost, who stated about the
detention of the Commander jeep along with the driver of the
jeep i.e. appellant Bala @ Chittaranjan Hesa and two others and
fleeing away of appellant Bala @ Chittaranjan Hesa and accused
Madhu Karua from the police outpost
P.W.7 Amit Kumar Giri, the owner of the Commander
jeep stated that appellant Bala @ Chittaranjan Hesa was the
driver of the said vehicle and co-accused Madhu Karua was the
helper and on 14.10.2005 both of them took the vehicle for
transportation of passengers and thereafter, he came to know
// 12 //
that his vehicle was detained in connection with this case and
later on he came to know that some persons set fire to the said
vehicle.
P.W.8 Bholanath Pradhan is a witness to the seizure
of the wearing apparels of the appellant Bala @ Chittaranjan
Hesa as per seizure list Ext.3.
P.W.9 Prafulla Chandra Barik, who was working as a
Home guard attached to Raruan police station is a witness to the
seizure of biological samples of the victim as per seizure list
Ext.4.
P.W.10 Danardan Pingua and P.W.11 Rabindra Purty
are witnesses to the seizure as per seizure list Ext.4 and Ext.5
respectively.
P.W.12 Lalit Kumar Panda and P.W.13 Bhadra Naik,
who were the police constables attached to Raruan police station
are witnesses to the seizure of caste certificate of the victim as
per seizure list Ext.6.
P.W.14 Ashish Ranjan Mohanty was the Gynaec
Specialist in the Sub-Divisional Government Hospital, Karanjia,
who examined the victim on police requisition and submitted the
report vide Ext.7.
// 13 //
P.W.15 Dr. Manas Ranjan Dandapat was working as
Gynaec Specialist in Sub-Divisional Government Hospital,
Karanjia, who examined the x-ray plates of the victim and
submitted his report vide Ext.8. According to his estimation, the
age of the victim girl was within sixteen to seventeen years.
P.W.16 Saroj Kumar Mohanta was the Home guard
attached to Raruan police station, who is a witness to the seizure
of biological samples of appellant Bala @ Chittaranjan Hesa vide
Ext.10.
P.W.17 Dr. Dubraj Tudu, who was working as Gynaec
Specialist in Sukruli C.H.C.-II, medically examined the appellant
Bala @ Chittaranjan Hesa and proved his report vide Ext.11.
P.W.18 Dr. Kunal Patra, who was working as an Asst.
Surgeon in Sukruli C.H.C.-II, medically examined the appellant
Kulamani Mohakud and proved his report vide Ext.12.
P.W.19 Toyaka Bharati was the S.D.J.M., Karanjia,
on whose supervision the T.I. parade of the appellants were
conducted and she proved her report vide Ext.13.
P.W.20 is the victim, who identified the appellants in
the T.I. parade as well as in Court and supported the prosecution
case and stated about the commission of gang rape on her by
the appellants along with others.
// 14 //
P.W.21 Nanika Sayan and P.W.23 Sumi Sayan were
the companions of the victim in the Commander jeep, who
supported the prosecution case and stated about the abduction
of the victim in the Commander jeep.
P.W.22 Gardi Sayan is a post-occurrence witness,
who has been declared hostile by the prosecution.
P.W.24 Kalabati Giri, who is the informant of the
case, was working as Woman constable attached to Ghagarbeda
police outpost stated about lodging of information by Budhuram
Sayan regarding abduction of his daughter and gang rape on her
by the accused persons before Ghagarbeda police Outpost.
P.W.25 Lokanath Bhoi, was the Sub-inspector of
Police attached to Ghagarbeda police outpost, who got
information first regarding abduction of the victim from P.W.1
and went in search of the victim on the date of incident.
P.W.26 Barini Das, who was the officer in-charge of
Raruan police station, was the initial investigating officer of the
case.
P.W.27 Ashok Kumar Biswal was the S.D.P.O. of
Rairangpur Sub-division, who took over the charge of
investigation from P.W.26 and on completion of investigation, he
submitted charge sheet against the appellants and accused
// 15 //
Madhu Karua and Debendra Naik, showing the last two as
absconders.
The prosecution exhibited eighteen numbers of
documents. Ext.1 is the chemical examination report, Ext.2 is
the serological examination report, Exts.3, 4, 5, 6, 10, 15, 16
and 18 are the seizure lists, Ext.7 is the medical examination
report of the victim, Ext.8 is the ossification report of the victim,
Ext.9 is the x-ray plate, Ext.11 is the medical examination report
of appellant Bala @ Chittaranjan Hesa, Ext.12 is the medical
examination report of the appellant Kulamani Mohakud, Ext.13 is
the test identification report of the suspects, Ext.14 is the F.I.R.,
Ext.17 is the spot visit report and Ext.19 is the spot map.
The prosecution proved eleven nos. of material
objects. M.O.I is the salwar, M.O.II is the chadi, M.O.III is the
hair clip, M.O.IV is the blue colour full pant, M.O.V is the half
ganji of appellant Bala @ Chittaranjan Hesa, M.O.VI is the
punjabi, M.O.VII is the odhani and M.O.VIII is the semij of the
victim, and M.O.IX is the full pant, M.O.X is the half ganji and
M.O.XI is the half chadi of the appellant Kulamani Mahakud.
6. The defence plea was one of denial.
7. The learned trial Court after assessing the evidence
on record, came to hold that the prosecution has not been able
// 16 //
to prove its case under section 3(2)(v) of the 1989 Act. It was
further held that though the victim being examined as P.W.20
has been cross-examined at length, but nothing material has
been elicited to belie her credibility and discard her evidence and
her evidence remains unshattered on the basis of her credibility
and reliability. The victim has not only identified the appellants in
the test identification parade but also in Court. Learned trial
Court further held that the evidence of the victim (P.W.20) gets
corroboration from the evidence of P.W.21 and P.W.23 and
nothing substantial has been brought out in the cross-
examination of those two witnesses to disbelieve their testimony
and therefore, their evidence were found to be cogent and
convincing. Learned trial Court further held that the evidence of
the doctor, who examined the victim girl has not at all been
challenged in the cross-examination and the evidence of P.W.15,
who examined the x-ray plates of the victim and determined her
age to be in between sixteen to seventeen years, has also not
been shaken. It was further held that the presence of the injuries
on the right elbow and front of the left knee of the victim so also
hymeneal tears on the private part of the victim fully supported
the evidence of the victim regarding commission of rape on her.
It was further held that the evidence adduced by the learned
// 17 //
S.D.J.M., Karanjia being examined as P.W.19 relating to
identification of the two appellants in the T.I. parade has
remained unshaken. It is further held that the evidence of the
victim finds corroboration from the physical clues found by the
investigating officer at the spot of occurrence. No importance
was attached to the submission made by the defence counsel
relating non-proving of the F.I.R., which was lodged by the
father of the victim as the violent mob had set fire to the police
outpost, which in turn destroyed all the documents of the
outpost. Considering the chemical examination report, the
serological examination report and the evidence of the victim,
which gets support from the oral evidence as well as
circumstantial evidence, the learned trial Court found both the
appellants guilty under section 376(2)(g) of the Indian Penal
Code.
8. Mr. Abhas Mohanty, learned Amicus Curiae appearing
for the appellants contended that some information was given
relating to the abduction of the victim prior to the lodging of the
first information report (Ext.14) but no attempt was made to
record the same and such information has not seen the light of
the day. There is suspicious feature in the lodging of the F.I.R.
(Ext.14) by P.W.24. It is further argued that there are materials
// 18 //
to show that prior to the test identification parade, the appellants
were shown to the identifying witnesses and therefore, the
sanctity of the test identification parade is lost on account of
exposure of appellants to the identifying witnesses. So far as the
identification of the appellant no.1 Kulamani Mahakud is
concerned, he has not been identified by the identifying witness
P.W.23 and thus on the solitary evidence of identification by the
victim, the appellant no.1 should not have been convicted. It is
further argued that the evidence of the victim is full of
contradictions and it does not tally with the statements of her
companions, who have been examined as P.W.21 and P.W.23. It
is further argued that though the victim stated that gang rape
was committed on her by four persons by making her complete
naked while she was lying on the ground facing upwards but as
per her evidence, she had no injury on her back which creates a
serious doubt regarding commission of gang rape. He further
argued that even though the appellant no.1 Kulamani Mahakud
was arrested on 16.10.2005 and the appellant no.2 Bala @
Chittaranjan Hesa was arrested on 26.10.2005, but the test
identification parade was conducted only on 08.11.2005 and no
explanation has been offered by the prosecution regarding the
delay in holding the test identification parade. Placing reliance on
// 19 //
the decision of the Hon'ble Supreme Court in the case of Hasib
-Vrs.- The State of Bihar reported in A.I.R. 1972 Supreme
Court 283, it is argued that it is a fit case where benefit of
doubt should be extended in favour of the appellants.
Mr. Arupananda Das, learned Additional Government
Advocate appearing for the State of Odisha, on the other hand,
supported the impugned judgment and contended that the
evidence of the victim is clear, clinching, trustworthy and it gets
corroboration at every stage right from the beginning when she
was forcibly taken by the appellants and other co-accused
persons in the Commander jeep, the disclosure of her
companions before others immediately after abduction of the
victim, the lodging of the first information report by the father of
the victim on the night of occurrence so also her medical
examination findings and the evidence of the Magistrate, who
conducted test identification parade and nothing has been
elicited to show that there is any lacuna in the holding of the test
identification parade. It is further argued that since it is a case of
gang rape and the victim had come in close contact with the
appellants during the course of occurrence, she is not likely to
forget their faces and features and in such a scenario, it cannot
be said that there has been such an inordinate delay in holding
// 20 //
the test identification parade so as to discard the evidence of
identification of the appellants by the victim. Learned counsel for
the State further submitted that while appellant no.1 Kulamani
Mahakud along with two absconding accused persons were
coming in the Commander jeep on the night of the occurrence,
they were detained by P.W.25 on the way and brought to the
police station but the appellant no.1 escaped from the outpost.
Similarly when the appellant no.2 Bala @ Chittarajan Hesa
arrived at the outpost in the night of occurrence to ascertain
about the Commander jeep, he was detained but while going to
attend the call of nature in the early morning on 15.10.2005,
both the appellant Bala @ Chittaranjan Hesa and accused Madhu
Karua escaped from the police custody. It is further argued that
the information which was given by others about the abduction
of the victim was vague and that is why it could not have been
registered as the first information report. When the information
was given by the father of the victim in the night of occurrence,
on that basis, Station Diary Entry was made but it got destroyed
as the villagers set fire to the outpost, which was deposed to by
number of witnesses. It is argued that there is no infirmity or
illegality in the impugned judgment and therefore, the appeal
should be dismissed.
// 21 //
Appreciation of evidence of victim of rape:
9. Law is well settled as reiterated in the case of
Swaroop Singh -Vrs.- State of Madhya Pradesh reported in
(2013) 14 Supreme Court Cases 565 : (2013) 55 Orissa
Criminal Reports (SC) 476 that a rapist not only violates the
victim's privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the process.
Rape is not merely a physical assault, it is often destructive of
the whole personality of the victim. The courts, therefore,
shoulder a greater responsibility while trying an accused on
charges of rape. They must deal with such cases with utmost
sensitivity. The courts should examine the broader probabilities
of a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the prosecutrix,
which are not of a fatal in nature, to throw out an otherwise
reliable prosecution case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking corroboration
of her statement in material particulars. If for some reason, the
Court finds it difficult to place implicit reliance on her testimony,
it may look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
// 22 //
appreciated in the background of the entire case and the trial
Court must be alive to its responsibility and be sensitive while
dealing with cases involving sexual molestations.
In the case of State of Punjab -Vrs.- Gurmit
Singh reported in (1996) 2 Supreme Court Cases 384 :
(1996) 10 Orissa Criminal Reports (SC) 293, it has been
held that in a case of rape, no self-respecting woman would
come forward to a Court just to make a humiliating statement
against her honour such as is involved in the commission of rape
on her. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are factors
which the Courts should not overlook. Seeking corroboration of
her statement before relying upon the same, as a rule, in such
cases amounts to adding insult to injury. The Court while
appreciating the evidence of a prosecutrix may look for some
assurance of her statement to satisfy its judicial conscience,
since she is a witness who is interested in the outcome of the
charge leveled by her, but there is no requirement of law to
insist upon corroboration of her statement to base conviction of
an accused. The evidence of a victim of sexual assault stands
almost at par with the evidence of an injured witness and to an
extent is even more reliable.
// 23 //
In the case of Dola @ Dolagobinda Pradhan and
another -Vrs.- The State of Odisha reported in A.I.R. 2018
Supreme Court 4020 : (2018) 72 Orissa Criminal Reports
(SC) 308, it has been held that just as a witness who has
sustained an injury (which is not shown or believed to be self-
inflicted) is the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of a sex
offence is entitled to great weight, absence of corroboration
notwithstanding. An accused in a rape case could be convicted
on the sole testimony of the prosecutrix, if it is capable of
inspiring confidence in the mind of the Court. If the version given
by the prosecutrix is unsupported by any medical evidence or the
whole surrounding circumstances are highly improbable and belie
the case set up by the prosecutrix, the Court shall not act on the
solitary evidence of the prosecutrix.
In the case of Mukesh and Ors. -Vrs.- State for
NCT of Delhi and Ors. reported in (2017) 6 Supreme Court
Cases 1 : (2017) 67 Orissa Criminal Reports (SC) 72, it is
held that conviction can be based on the sole testimony of the
prosecutrix if it is implicitly reliable and there is a ring of truth in
it. Corroboration as a condition for judicial reliance on the
testimony of a prosecutrix is not requirement of law but a
// 24 //
guidance of prudence under given circumstances. There is no
legal compulsion to look for corroboration of the prosecutrix's
testimony unless the evidence of the victim suffers from serious
infirmities, thereby seeking corroboration. Persisting notion that
the testimony of victim has to be corroborated by other evidence
must be removed. To equate a rape victim to an accomplice is to
add insult to womanhood. Ours is a conservative society and not
a permissive society. Ordinarily a woman, more so, a young
woman will not stake her reputation by leveling a false charge,
concerning her chastity.
Analysis of the evidence of the victim (P.W.20):
10. The victim (P.W.20) has stated that on the date of
occurrence, she went to see the 'Yatra' at village Ghagarbeda
along with P.W.21, P.W.23 and others, which was going on the
occasion of 'Durga Puja' and after seeing the 'Yatra', when she
was returning with other girls to the village and evening had
already set in, a Commander vehicle came near them. The driver
of the vehicle asked them to board it and accordingly, she as
well as her companions boarded the vehicle. She specifically
stated that the two appellants were amongst the four persons,
who were present in the vehicle. After covering some distance,
the four persons present in the vehicle asked her companions to
// 25 //
get down from the vehicle and forced them in that respect and
also pushed them from the vehicle but she was not allowed to
get down from the vehicle and her face was tied with a napkin
for which she could not see anything thereafter. She further
stated that those four persons took her in the jeep to a forest
where they threatened her with a knife and also assaulted her,
tore her shirt and committed rape on her by force one after
another. She specifically identified the two appellants in the dock
to be the culprits. She further stated that after committing the
crime, the accused persons left her in the forest and fled away
and though she tried to raise shout but she could not as the
accused persons had closed her mouth by putting their hands.
She returned to her village alone and intimated about the
occurrence to her parents. She stated that she was wearing a
rose colour salwar, one chadi and one rose colour shirt and her
salwar, chadi and hair clip were lying at the spot. She identified
her wearing apparels as well as her hair clip in Court, which were
marked as M.O.I, M.O.II and M.O.III respectively. In the cross-
examination, she has stated that she did not know the appellants
in the dock prior to the occurrence. She further stated that
initially there were three persons in the Commander jeep when
they boarded the same and another person joined them on the
// 26 //
way. She further stated that there was no shop or residential
house near the place where rape was committed and her face
was tied with a napkin when she was sitting in the vehicle but
the face was not tied at the time of commission of rape on her.
She further stated that the place of occurrence was completely
dark and dry leaves were on the ground and that the accused
persons made her complete naked and committed rape on her in
a sleeping condition while she was facing upwards. She further
stated that she did not try to resist the accused persons when
they were committing rape on her because they were holding her
hands and legs and they also threatened her to kill. She further
stated that the appellants did not bite her during commission of
rape and she had not sustained any injury on her back.
Learned counsel for the appellants submitted that
though the victim stated that during occurrence, she sustained
injury on the lower lip as she was assaulted by the accused
persons but the doctor, who examined her did not notice any
injury on her lip.
On perusal of the evidence of the doctor (P.W.14), it
appears that on 16.10.2005 when he examined the victim, he
found multiple small abrasions on the back of right elbow and
front of left knee and he opined that the abrasions were caused
// 27 //
due to physical violence. There were fresh hymenal tears in right
lateral and left posterolateral location which suggested recent
sexual intercourse. So far as abrasions are concerned, the age of
the injuries was more than twenty four hours and so far as
hymenal tears are concerned, it was within seventy two hours.
The clothings of the victim girl had no stain of discharge or mark
of violence. In the cross-examination, the doctor has stated that
there was no nail mark or biting mark on the cheek or breasts of
the girl. Nothing has been elicited in the evidence of the doctor
to disbelieve his testimony rather I find that the medical
evidence corroborates the evidence of the victim.
So far as the identification of the appellants is
concerned, the victim stated that in the test identification parade
in jail, she identified the appellants correctly to have committed
rape on her. Though suggestion was given to the victim that
photographs of the accused persons were shown to her prior to
test identification parade but she denied such suggestion rather
she stated that she went to jail for identification and the police
were not present where test identification parade was conducted
and she identified both the appellants from the number of
persons standing in a queue. At this stage, it would be profitable
to discuss the evidence of P.W.19 Toyaka Bharati, the learned
// 28 //
S.D.J.M., Karanjia, who conducted the test identification parade
of the suspects. The victim (P.W.20) and Sumari Sayan (P.W.23)
were the identifying witnesses. P.W.19 has stated that the two
culprits were mixed up with nineteen other undertrial prisoners
of the same age, stature and similarly dressed and they were
made to stand in a row, out of the view of the identifying
witnesses and that the identifying witnesses were outside the jail
and she first called the victim to identify the suspects, who
identified both the appellants and then the position of the
suspects were changed so also the other undertrial prisoners and
then P.W.23 was called for identification of the suspects and she
only identified the appellant Bala @ Chittaranjan Hesa. The test
identification parade report has been proved as Ext.13. In the
cross-examination, P.W.19 stated that the two identifying
witnesses were noticed by the Court to appear on 08.11.2005
and they were directed to remain present outside the Sub-jail,
Karanjia for identifying the suspects and that when she came to
Sub-jail, Karanjia for holding test identification parade, the
identifying witnesses were outside the jail gate. P.W.19 admitted
that in her report (Ext.13), she had not mentioned that nineteen
undertrial prisoners those were mixed up with the two suspects
were of the same age group and stature of the suspects and they
// 29 //
were also similarly dressed. After going through the evidence of
P.W.19, I find that the defence has not brought out anything
clinching by way of cross-examination to disbelieve her evidence.
There was no irregularity in the test identification parade rather
all precautions were taken in such identification parade process.
The other witnesses to the identification parade i.e.
P.W.23 has stated that while she along with the victim and
others were returning to their village by foot after seeing 'Yatra',
one Commander jeep came and the appellant Bala was driving
the vehicle and she asked them about their destination and
agreed to take them by paying fare of Rs.5/- each. She further
stated that on the way, the persons, who were present in the
jeep, forced them to get down from the jeep but they did not
allow the victim to get down and left the place in the jeep with
the victim. She further stated that they disclosed about the
incident to a shopkeeper whose shop was nearer to the place of
occurrence.
The shopkeeper has been examined as P.W.1 who
stated that on the 'Dussehra Puja' day at about 7.30 p.m. while
he was in his shop situated at Maricha, four to five young girls
came in front of his shop and started crying and when he asked
them about the reason of their crying, they told that while they
// 30 //
were returning home after seeing the 'Dussehra Mela', on the
way, one vehicle picked up a girl, who was with them. Thus, the
evidence of P.W.1 corroborates the evidence of P.W.23. P.W.1
has stated that he informed the matter to his friend Mahendra
Mohanta (P.W.3) over phone and requested him to report the
matter to the police.
P.W.3 has stated that he received a phone call from
P.W.1 who told him that a group of girls came to his shop and
informed him about lifting of a girl of his village by a Commander
jeep on the way. P.W.3 reported the matter at Ghagarbeda
outpost and intimated about the occurrence to S.I. of police Bhoi
Babu (P.W.25) and then he along with P.W.25 came near the
shop of P.W.1 where the girls told them about the abduction of
one girl forcibly. Thus, the evidence of P.W.3 also corroborates
the evidence of P.W.1.
P.W.25, the S.I. of Police has stated that he received
a telephone call from P.W.3 about taking away of a girl in a
Commander jeep at about 7.30 p.m. by some persons and
thereafter, P.W.3 came to the police outpost and informed him
that while a group of women were going in a Commander jeep,
the driver of the said jeep and three others forced the other
women except a girl to get down from the jeep at Marichahudi
// 31 //
and took away the girl in the jeep towards Fulcom chhaka. Thus,
the evidence of P.W.25 corroborates from the evidence of P.W.3.
The evidence of the victim that her salwar, chadi and
hair clip were lying at the spot of occurrence is corroborated by
the evidence of the Investigating Officer (P.W.26), who stated
that during his spot visit on 17.10.2005 at about 8.00 a.m., he
seized one red colour salwar, one chadi and one hair clip of the
victim, which were lying at the spot and he prepared the seizure
list marked as Ext.5. P.W.26 further stated that the spot of
occurrence was identified to him by the victim girl on 17.10.2005
and that he noticed skid mark of the Commander jeep near the
spot of occurrence. The chadi (M.O.II) which was sent for
chemical analysis was found stained with human blood.
Therefore, in my humble view, the evidence of the victim
(P.W.20) not only inspires confidence and implicitly reliable but
also gets corroboration from the evidence of her friend (P.W.23),
other circumstantial evidence and more over from the medical
evidence, the evidence of the learned Magistrate who conducted
test identification parade and also from the evidence of the
Investigating Officer.
// 32 //
Lodging of first information (Ext.14) by P.W.24:
11. P.W.24 has stated that on the night of occurrence, a
report was submitted by the father of the victim at Ghagarbeda
police outpost and on the next day morning, number of persons
of Jharkhand State gathered in front of the police outpost as
they came to know about the escape of the accused persons
from the police outpost and they became agitated and set fire to
the police outpost and the Commander jeep and in the fire, all
the documents of the police outpost including the F.I.R.
presented by the father of the victim were destroyed. No doubt,
the informant (P.W.24) has stated that she could not say the
name of the villager, who scribed the first information report
(Ext.14) and that she had not mentioned in Ext.14 that she went
through the contents of the F.I.R. and finding the contents to be
true, she signed the same, but in my view, in absence of such
mention in the F.I.R., when the evidence of the informant has
remained consistent and unshattered, the authenticity of the first
information report cannot be doubted. The destruction of the
documents of the outpost on account of fire has been proved by
P.W.25 so also P.W.26. No challenge has been made by the
defence in the cross-examination to such aspect. The destruction
of the first information report lodged by the father of the victim
// 33 //
on account of fire in the outpost compelled the informant
(P.W.24) to lodge another first information report (Ext.14) in
which she described as to how the F.I.R. lodged earlier by the
father of the victim was destroyed so also how the accused
persons escaped from the police station. Therefore, there is no
suspicious feature in the lodging of the F.I.R. by P.W.24.
Delay in holding test identification parade:
12. The appellant no.1 Kulamani Mohakud was forwarded
to Court after his arrest on 16.10.2005 and the appellant no.2
Bala @ Chittaranjan Hesa was forwarded to Court on
26.10.2005. The test identification parade was conducted by
P.W.19 on 08.11.2005, which was twenty two days after the
arrest of appellant no.1 and twelve days after the arrest of
appellant no.2. It cannot be lost sight of the fact that before the
rape was committed, the victim was threatened and intimidated
by the appellants. She remained with the appellants for a
considerable time. This is not a case where the victim had only a
fleeting glimpse of the appellants on a dark night. The victim
also had a reason to remember their faces as they had
committed a heinous offence and put her to shame. She had,
therefore, abundant opportunity to notice their features. In fact
on account of her traumatic and tragic experience, the faces of
// 34 //
the appellants must have got imprinted in her memory and she
is not likely to forget it so easily and there was no chance of her
making a mistake about their identity.
In the case of Hasib (supra), the Hon'ble Supreme
Court has held that the test identification parades, which belong
to the investigation stage, serve to provide the authority with
material to assure them if the investigation is proceeding on
right lines and therefore, it is desirable to hold them at the
earliest opportunity. A further reason is that an early opportunity
to identify also tends to minimize the chances of the memory of
the identifying witnesses fading away due to long lapse of time.
In the case of Mulla and others -Vrs.- State of
Uttar Pradesh reported in (2010) 3 Supreme Court Cases
508 : (2010) 45 Orissa Criminal Reports (SC) 901, it is held
that mere delay in investigation parade does not make the
evidence of identification inadmissible, if the same was properly
done after following due procedure of law. An identification
parade ideally must be conducted as soon as possible to avoid
any mistake on the part of witnesses and this condition can be
revoked if proper explanation justifying the delay is provided and
the authorities must make sure that the delay does not result in
// 35 //
exposure of the accused which may lead to mistake on the part
of the witnesses.
In the case of Pramod Mandal -Vrs.- State of
Bihar reported in (2004) 13 Supreme Court Cases 150 :
(2004) 29 Orissa Criminal Reports (SC) 501, it is held that it
is neither possible nor prudent to lay down any invariable rule as
to the period within which a test identification parade must be
held, or a number of witnesses who must correctly identify the
accused, to sustain his conviction. These matters must be left to
the Courts of fact to decide in the facts and circumstances of
each case. If a rule is laid down prescribing a period within which
the test identification parade must be held, it would only benefit
the professional criminals in whose cases the arrests are delayed
as the police have no clear clue about their identity, they being
the persons unknown to the victims. They therefore, have only
to avoid their arrest for the prescribed period to avoid conviction.
Similarly, there may be offences which by their very nature may
be witnessed by a single witness, such as rape. The offender
may be unknown to the victim and the case depends solely on
the identification by the victim, who is otherwise found to be
truthful and reliable. What justification can be pleaded to
contend that such cases must necessarily result in acquittal
// 36 //
because of there being only one identifying witness? Prudence
therefore demands that these matters must be left to the
wisdom of the Courts of fact which must consider all aspects of
the matter in the light of the evidence on record before
pronouncing upon the acceptability or rejection of such
identification.
In the case of Malkansingh -Vrs- State of Madhya
Pradesh reported in (2003) 5 Supreme Court Cases 746, it
is held that as a general rule, the substantive evidence of a
witness is the statement made in Court. The evidence of mere
identification of the accused person at the trial for the first time
from its very nature is inherently of a weak character. The
purpose of prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in Court as to
the identity of the accused who are strangers to them, in the
form of earlier identification proceedings. This rule of prudence,
however, is subject to exceptions, when for example, the Court
is impressed by a particular witness on whose testimony it can
safely rely, without such or other corroboration.
// 37 //
In the case of Raja -Vrs.- State reported in
(2020) 15 Supreme Court Cases 562 : (2020) 77 Orissa
Criminal Reports (SC) 621, it is held that the defence has not
imputed any motive to the prosecution for the delay in holding
the test identification parade, nor has the defence alleged that
there was any irregularity in the holding of the test identification
parade. The evidence of the Magistrates conducting the test
identification parade as well as the investigating officer has
remained unchallenged and therefore, it was held that in the
facts and circumstances of this case the holding of the test
identification parade about one month after the occurrence, is
not fatal to the case of the prosecution.
In the factual scenario of this cases, I am of the
humble view that the delay in holding test identification parade,
if any, is no way fatal to the prosecution case particularly in view
of abundant opportunity on the part of the victim to notice the
features of the appellants on account of her traumatic and tragic
experience in the company of the appellants for a considerable
period. By very nature of the offence, the close proximity with
the offender would have certainly afforded sufficient time to
imprint upon her mind the identity of the offender. Moreover, it
cannot be lost sight of the fact that another witness (P.W.21),
// 38 //
who had also accompanied the victim on the date of occurrence
but did not participate in the test identification parade has also
stated that after seeing the Yatra, she along with the victim
(P.W.20) and others were returning to their village by foot and
on the way the driver of the Commander jeep i.e. appellant no.2
Bala @ Chittaranjan Hesa asked them to sit in the jeep with
assurance to leave them in the village. She further stated that
the appellant no.2 asked them to pay fare of Rs.5/- each to take
them in the jeep to their village. She further stated that initially
there were three persons present in the jeep and subsequently
another person also boarded the jeep and on the way, those four
persons forced them to get down from the jeep but they did not
allow the victim to get down from the jeep.
Out of the two identifying witnesses, nothing has
been brought on record that the victim (P.W.20) had any
opportunity to see any of the appellants after the occurrence and
prior to the test identification parade rather she denied the
suggestion given by the learned defence counsel that the
photographs of the accused persons were shown to her prior to
test identification parade. So far as P.W.23 is concerned, she
stated that she had gone to Raruan police station on the next
Monday after the arrest of the appellant no.2 where she saw the
// 39 //
appellant no.2 but on the basis of such evidence of P.W.23, the
evidence of identification of appellant no.2 in the test
identification parade by the victim (P.W.20) cannot be discarded
particularly when the said appellant has been identified by the
victim in the Court also.
Earlier information about commission of crime not
recorded:
13. Even though some information had come to P.W.25
regarding a group of women giving information relating to a
driver of the Commander jeep and three others forcibly taking
away a girl towards Fulcom chhak site but non-registration of
such information as F.I.R. cannot be a ground to hold that the
first information report has been suppressed.
In case of Sidhartha Vashisht @ Manu Sharma
-Vrs- State (NCT of Delhi) reported in (2010) 46 Orissa
Criminal Reports (SC) 208, it has been held that the phone
calls made immediately after an incident to the police constitutes
an F.I.R. only when they are not vague and cryptic. Calls purely
for the reason of getting the police to the scene of crime do not
necessarily constitute the F.I.R.
In the present case, the phone call given by P.W.1 to
P.W.3 and the information of the latter to P.W.25 were vague
// 40 //
and therefore, could not have been registered as the F.I.R.
Therefore, I am of the humble view that non-registration of such
information as F.I.R. or destruction of the first information report
lodged by the father of the victim in the fire at the outpost are
no ground to discard the prosecution case.
Conclusion:
14. In view of the foregoing discussions, I find that the
evidence of the victim (P.W.20) is clear, cogent, trustworthy and
above board and it gets corroboration from other witnesses and
circumstantial evidence. There is no delay in the lodging of the
first information report. The medical evidence also corroborates
the evidence of the victim. The incriminating articles seized at
the spot lend support to the victim's evidence and it strengthens
the prosecution case. The two appellants have been identified in
the test identification parade as well as in Court by the victim.
Thus, I am of the humble view that there is no infirmity or
illegality in the impugned judgment and the learned trial court
has rightly found the appellants guilty under section 376(2)(g) of
the Indian Penal Code.
Accordingly, the conviction of the appellants under
section 376 (2)(g) of the Indian Penal Code and the sentence
passed thereunder stands confirmed and upheld.
// 41 //
The CRLA stands dismissed.
Before parting with the case, I would like to put on
record my appreciation to Mr. Abhas Mohanty, the learned
Amicus Curiae for rendering his valuable help and assistance
towards arriving at the decision above mentioned. The learned
Amicus Curiae shall be entitled to his professional fees which is
fixed at Rs.7,500/- (rupees seven thousand five hundred only).
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 9th December 2021/PKSahoo/Pravakar/RKM
