Orissa High Court
Dillu @ Dilip Kumar Swain vs State Of Orissa on 21 June, 2021
ORISSA HIGH COURT: CUTTACK
CRLA No.373 of 2012
From the judgment of conviction and order of sentence dated 19.01.2012
passed by Smt. D. Mohapatra, Additional Sessions Judge, Bhubaneswar in
C.T. Case No.1/63 of 2004.
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Dillu @ Dilip Kumar Swain ......... Appellant
-versus-
State of Orissa ......... Respondent
For Appellant : M/s. Ashok Kumar Sarangi,
A.C. Sarangi, P. Sarangi,
K. Pattanaik, S. K. Sethy,
T. Ram, A.K. Bhanja &
MD. H. Khan
For Respondent : Mrs. Saswata Pattanaik,
Additional Government Advocate
PRESENT:
SHRI JUSTICE S.K.MISHRA
AND
MISS JUSTICE S. RATHO
Date of hearing 03.03.2021 and judgment: 21.06.2021
S.K.Mishra, J. The convict-appellant has been convicted for the
offence under Section 376(2)(g) of the Indian Penal Code (for short
'Penal Code') read with Section 3(ii)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced
to undergo imprisonment for life by the learned Additional Sessions
Judge, Bhubaneswar in C.T. Case No.1/63 of 2004, as per the
judgment dated 19.01.2012.
2. The facts of the case, bereft of unnecessary details,
are that the informant, being a Scheduled Caste parentless girl, was
working as a labourer in a stone quarry of Kantia and was staying
with some of her villagers, at a nearer hamlet Budhabapada, in a
rented house of one Bhaga Behera. In the night of 06.09.2003, when
she was sleeping in her house, at about 1.00 A.M. both the accused
persons Dilu and Manua entered inside the house and in order to
satisfy their physical lust, forcibly ravished the victim one after
another and left the place posing threat with dire consequence in case
she will divulge the fact to anyone. The victim sustained injuries on
sensitive parts of her body due to the forced act of the accused
persons. Thereafter, she divulged the incident before her employer
and along with him, she went to police station and lodged F.I.R.
Accordingly, after registration of the case, police investigated into the
matter, examined the victim as well as the witnesses, visited the spot
and conducted necessary seizure of material object and upon
completion of investigation, charge sheet was submitted on
03.01.2004 against both the accused persons.
3. The accused persons took the plea of complete denial
and false implication.
4. In order to substantiate the case, prosecution
examined as many as 19 witnesses and relied upon documents under
Ext.1 to Ext.15. Out of the 19 witnesses, P.W.1, the prosecutrix
(name withheld) is the victim-informant, P.W.2 one Prakash Mangaraj
who accompanied the informant to the police station. P.W.7, Dr.
Pravakar Sahoo and P.W.13, Dr. Manaranjan Jena are the Medical
Officers, who examined both the accused persons. P.W.18, Harish
Chandra Pandey and P.W.19, Ratnakar Das are the police personnel
who conducted their part of job so far as the investigation is
concerned. Out of the remaining witnesses, some of them are
witnesses to the seizure of wearing apparel of the victim and accused
persons, some though examined as independent witnesses do not
support the case of the prosecution. P.W.9, Premananda Baliarsingh
is a police constable who accompanied the victim to hospital, brought
the seized physical clues of the victim.
The accused persons adduced no oral and
documentary evidence.
5. Relying upon the evidence of P.W.1, the prosecutrix
victim and P.W.2, her employer, together with the contents of the
medical examination report as well as doctors' opinion and accepting
the statement of the prosecutrix recorded under Section 164 of the
Code as public document and substantive evidence, the learned
Additional Sessions Judge, Bhubaneswar, even though most of the
prosecution witnesses have turned hostile and the prosecutrix has not
named anybody in the Examination-In-Chief, came to the conclusion
that prosecution has proved its case beyond reasonable doubt against
the sole appellant and convicted him under Section 376(2)(g) of the
Penal Code read with Section 3(ii)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act and sentenced him to
undergo imprisonment for life and to pay a fine of Rs.5000/-, in
default to undergo rigorous imprisonment for one year. However, she
acquitted the co-accused Manua @ Manoj Kumar Behera holding that
there is no evidence against him.
6. Learned counsel for the appellant submits that the
approach adopted by the learned Additional Sessions Judge,
Bhubaneswar, in this case, is not appropriate and that she has relied
upon previous statement like the statement recorded under Section
164 of the Code which is not substantial evidence and come to the
conclusion that the appellant has committed the offence of gang rape.
He further submitted that the learned Additional Sessions Judge,
Bhubaneswar should have acquitted the sole appellant along with co-
accused of the offence under Section 376(2)(g) of the Penal Code
read with Section 3(ii)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act and should have taken
cognizance of offence of perjury committed by prosecutrix. He,
therefore, submitted that the appeal should be allowed and
conviction should be set aside.
7. Ms. Saswata Patnaik, learned Additional Government
Advocate, on the other hand, submitted that in this case, the learned
Additional Sessions Judge, Bhubaneswar was aware of the evidences
available on record and after taking into consideration, the judgment
of conviction has been passed for which it should not be set aside. As
far as the issue of committing perjury by the prosecutrix-P.W.1 is
concerned, the learned Additional Government Advocate submitted
that the prosecutrix belongs to the Scheduled Tribe category. She is
illiterate and earns her livelihood by manial labour. She has been
raped by two persons. Therefore, the learned Additional Government
Advocate submitted that initiation of a proceeding against this victim
of rape would amount to harassment of the victim.
8. A careful examination of the evidence of the prosecutrix
P.W.1 reveals that she has stated that she has been raped on the date
and time alleged. However, she has not implicated the appellant. She was
cross-examined by the prosecution after obtaining permission from the
court under Section 154 of the Evidence Act. She stated that her
statement was recorded by the Magistrate under Section 164 of the Code
on 12.09.2003 but she does not remember what she stated before the
Magistrate. Thereafter, she denied all the leading questions put by the
prosecution and stated that she has been raped by two persons in the
night of occurrence. She has stated in her Section 164 statement that she
could identify one of them i.e. Dillu @ Dilip Kumar Swain but could not
identify the other person. The learned Additional Sessions Judge has not
taken this statement as a substantial evidence or direct evidence, but she
has taken it as a circumstance. Together with such circumstance and
statement of P.W.2 and medical report marked as Exhibit-10 without
examination of the doctor learned Additional Sessions Judge has come to
a conclusion that prosecution has proved its case under Section 376(2)(g)
of the Penal Code and Section 3(ii)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act beyond reasonable doubt.
The approach adopted by the learned Additional Sessions Judge is clearly
not tenable. It is no more res integra that statement recorded under
Section 164 of the Code is only a previous statement. It is not a
substantial piece of evidence. Such a previous statement can be used
both for contradiction and corroboration. However, statement or evidence
given in the court in course of trial in the presence of the accused and his
counsel is substantial evidence. Such evidence can be corroborated by the
prosecution relying upon the statement recorded under Section 164 of the
Code to the evidence of the prosecutrix deposed in the court. The
statement recorded under Section 164 of the Code can supplement the
evidence given in the court but it cannot supplement it.
9. In that view of the matter, we are of the opinion that there
is no substantial evidence in this case and only on the basis of retracted
statement made under Section 164 of the Code, the learned Additional
Sessions Judge should not have convicted the appellant. Hence, the
conviction requires to be set aside.
10. As far as the argument advanced by Mr. Ashok Kumar
Sarangi, learned counsel for the appellant regarding initiation of
perjury proceeding against the prosecutrix is concerned, as in the
meantime almost 8 years have elapsed, the prosecutrix belongs to a
very unprivileged class and she is an illiterate lady depending mainly
on manial labour to eke out her livelihood, we are not inclined to
initiate any perjury proceeding against her.
11. On the basis of aforesaid discussions, we come to the
conclusion that the prosecution has not proved its case beyond all
reasonable doubt. It has failed to establish a case under Section
376(2)(g) of the Penal Code and Section 3(ii)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act. Hence,
the appellant is entitled to an order of acquittal.
12. In the result, the appeal is allowed. The impugned
judgment of conviction and consequent sentence passed by the
learned Additional Sessions Judge, Bhubaneswar in C.T. Case No.1/63
of 2004, convicting the appellant-Dillu @ Dilip Kumar Swain under
Section 376(2)(g) of the Penal Code read with Section 3(ii)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
and sentence to undergo imprisonment for life, are hereby set aside.
The petitioner is acquitted of the offence under Section 376(2)(g) of
the Penal Code and Section 3(ii)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act. It is stated that the
appellant is in custody. The appellant be set at liberty forthwith, if his
detention is not required in any other case.
Accordingly, the CRLA is disposed of.
The T.C.Rs be returned back to the trial court
forthwith.
As the restrictions due to resurgence of COVID-19 are
continuing, learned counsel for the parties may utilize the soft copy /
downloaded copy of this order available in the High Court's website or
print out thereof at par with certified copies, subject to attestation by
concerned Advocate along with seal, in the manner prescribed, vide
Court's Notice No.4587, dated 25.03.2020 as modified by Court's
Notice No.4798 dated 15.04.2021.
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S.K.Mishra, J.
S.Ratho, J. I agree
...............................
S. Ratho, J.
Orissa High Court, Cuttack
The 21st June, 2021/TDTUDU
