Ghuku @ Buku @ Fuku vs State Of Odisha
2021 Latest Caselaw 11035 Ori

              IN THE HIGH COURT OF ORISSA, CUTTACK
                                     JCRLA No. 77 OF 2018

       From judgment and order dated 16.05.2018 passed by the
       Presiding Officer, Special Court (S.C. & S.T.), Balasore in Special
       Case No.344 of 2016/CIS No.186 of 2016.
                                          ----------------------------

Ghuku @ Buku @ Fuku @ Hookusingh Lama ....... Appellant

-Versus-

              State of Odisha                        .......                            Respondent


                     For Appellant:                     -      Miss Anima Kumari Dei


                     For Respondent:                    -      Mr. Arupananda Das
                                                               Addl. Government Advocate
                                          ----------------------------

       P R E S E N T:

                        THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 28.10.2021

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S.K. SAHOO, J. The appellant Ghuku @ Buku @ Fuku @ Hookusingh

Lama faced trial in the Court of learned Presiding Officer, Special

Court (S.C. & S.T.), Balasore in Special Case No.344 of 2016/CIS

No.186 of 2016 for commission of offences punishable under

sections 342/ 365/ 376(1) of the Indian Penal Code read with

section 3(2)(v)/3(2)(va) of the S.C. and S.T. (POA) Act.

// 2 //

The learned trial Court vide impugned judgment and

order dated 16.05.2018 while acquitting the appellant of the

charges under sections 3(2)(v)/3(2)(va) of the S.C. and S.T.

(POA) Act, found the appellant guilty of the offences under

sections 342/ 365/376(1) of the Indian Penal Code and

sentenced him to undergo rigorous imprisonment for one year

and to pay a fine of Rs.1,000/- (rupees one thousand), in

default, to undergo rigorous imprisonment for two months more

for the offence under section 342 of the of the Indian Penal

Code; rigorous imprisonment for three years and to pay a fine of

Rs.5,000/- (rupees five thousand), in default, to undergo

rigorous imprisonment for six months more for the offence under

section 365 of the Indian Penal Code and rigorous imprisonment

for ten years and to pay a fine of Rs.10,000/- (rupees ten

thousand), in default, to undergo rigorous imprisonment for two

years more for the offence under section 376(1) of the Indian

Penal Code and all the sentences were directed to run

concurrently.

2. The prosecution case, in short, as per the first

information report lodged by Shri Rabindra Jena (P.W.5) before

the I.I.C., Sadar police station, Balasore on 17.03.2016 is that

he was working as a labourer in the Oriplast Pipe Factory of

Balasore and as usual on 16.03.2016 his younger daughter

// 3 //

(hereafter 'the victim) (P.W.8), who was aged about nineteen

years, came at about 12.45 p.m. with the tiffin box to hand it

over to him but she did not return back home on that day. P.W.5

made frantic search of the victim at different places but could

not locate her for which he lodged a missing report (Ext.2) at

Sadar police station, Balasore on 17.03.2016. Thereafter, he

received information that on 16.03.2016 in the afternoon, the

appellant had taken away the victim in a cycle towards

Bamapada, which was seen by others. P.W.5 searched for the

victim and could locate her and the victim told him that on

16.03.2016, the appellant confined her in his house and by

gagging her mouth, committed rape on her. Seeing P.W.5, the

appellant tried to flee away by jumping over a wall and in that

process, he sustained injury on his head.

On the basis of such first information report,

Balasore Sadar P.S. Case No.54 dated 17.03.2016 was

registered against the appellant under sections 342/ 365/376(1)

of the Indian Penal Code and section 3(1)(xi) of the S.C. and

S.T. (POA) Act. On the request of the I.I.C. of Sadar police

station, P.W.10 Prafulla Chandra Badajena, the S.D.P.O., Sadar,

Balasore took charge of investigation and during course of

investigation, he examined the witnesses, visited the spot,

prepared the spot map (Ext.9), issued requisition to S.P.,

// 4 //

Balasore for deputation of lady Sub-Inspector/Inspector for

assisting him in investigation. He seized one blue colour saree

and one red white mixed colour blouse of the victim under

seizure list Ext.3. He also seized the man missing report of the

victim as per seizure list Ext.1 and one blue colour Avon bicycle

of the appellant as per seizure list Ext.4 and handed over the

seized cycle in the zima of one Suraj Bahadur under zimanama

Ext.10. He sent requisition to Tahasildar, Remuna for furnishing

caste particulars of the informant, the victim and the appellant.

On 18.03.2016, the Investigating Officer seized one green and

black colour butterfly print sky colour frock used by the victim at

the time of occurrence, which was produced by the informant

under seizure list Ext.6. On the very day, the Investigating

Officer also sent the victim to D.H.H., Balasore for her medical

examination and made prayer to the learned S.D.J.M., Balasore

for recording the statement of the victim under section 164

Cr.P.C., which was accordingly recorded. On 21.03.2016, the

Investigating Officer seized the biological collection and X-Ray

plate on production by the constable from D.H.H., Balasore. The

appellant was arrested on 21.03.2016 and was sent for medical

examination. The biological exhibits of the appellant were also

seized after the same was collected by the Medical Officer. The

appellant was forwarded to Court on 22.03.2016. On the basis of

// 5 //

the prayer of the Investigating Officer, the learned S.D.J.M.,

Balasore sent the exhibits to R.F.S.L., Balasore for chemical

examination and opinion. The caste particulars of the informant

and the victim were received from the Tahasildar, Remuna which

reflected that the victim belonged to Khadala by caste which was

coming under 'Scheduled Caste'. So far as the caste of the

appellant is concerned, the Tahasildar, Remuna suggested to

obtain the same from Balasore Tahasil but the caste certificate of

the appellant has not been proved during trial. On 05.07.2016,

on his transfer, P.W.10 handed over the charge of investigation

to Amaresh Panda (P.W.11), S.D.P.O., Sadar, Balasore and after

making local enquiry that the appellant did not belong to

Scheduled Caste or Scheduled Tribe category, charge sheet

dated 16.07.2016 was placed against him under sections

342/365/376 of the Indian Penal Code read with section

3(2)(v)(va) of the S.C. and S.T. (POA) Act and the learned trial

Court took cognizance of offences under which charge sheet was

submitted.

3. The learned trial Court on 06.10.2016 framed the

charges against the appellant as already stated and since the

appellant refuted the charges, pleaded not guilty and claimed to

be tried, the sessions trial procedure was resorted to prosecute

him and establish his guilt.

// 6 //

4. The defence plea of the appellant is one of denial. It

is pleaded that in order to harass him a false case has been

foisted.

5. During course of trial, in order to prove its case, the

prosecution has examined as many as twelve witnesses.

P.W.1 Bajua Patra, who was working as Constable at

Sadar police station, is a witness to the seizure of missing report

(Ext.2) and clothes of the victim vide seizure lists Exts.1 and 3

respectively.

P.W.2 Samson Kujur, who was working as Constable

at Sadar police station, is a witness to the seizure of clothes of

the victim vide seizure list Ext.3.

P.W.3 Ratilal Patel did not state anything about the

prosecution case.

P.W.4 Goutam Patel is a witness to the seizure of

Avon Bicycle vide seizure list Ext.4.

P.W.5 Rabindra Jena is the informant of the case and

he is the father of the victim. He stated about the presentation of

missing report of the victim in the polie station and disclosure

made by the victim about the occurrence.

P.W.6 Gayadhara Sethi stated to have noticed the

appellant taking the victim by his bicycle while he was returning

// 7 //

to his house with his mother from the hospital, on the way at

Tamulia Railway gate.

P.W.7 Harekrushna Patra stated that on the date of

occurrence, the victim had gone to Odisha Plastic factory gate to

give tiffin to P.W.5 but did not return home for which they

searched for her and on getting information, they proceeded to

the house of one Adivasi at village Saraswatipur and rescued the

victim from his house and thereafter, the victim narrated about

the incident before them. He is also a witness to the seizure of

dresses of the victim vide seizure list Ext.6.

P.W.8 is the victim. She supported the prosecution

case and stated about the appellant forcibly taking her in a

bicycle to a house, confining her and committing rape on her.

P.W.9 Dr. Sumanta Kumar Dash was the Skin

Specialist at D.H.H., Balasore, who medically examined the

appellant on police requisition and noticed one abrasion on the

left shoulder of the appellant and proved the medical

examination report vide Ext.8.

P.W.10 Prafulla Chandra Badajena was the S.D.P.O.,

Sadar, Balasore, who was the Investigating Officer of the case.

He stated to have handed over the charge of investigation to

S.D.P.O., Sadar, Balasore Amaresh Kumar Panda (P.W.11).

// 8 //

P.W.11 Amaresh Kumar Panda was the S.D.P.O.,

Sadar, Balasore, who on completion of investigation, submitted

the charge sheet.

P.W.12 Dr. Sandhyarani Pattnayak was the Senior

Medical Officer, D.H.H., Balasore, who examined the victim

(P.W.8) on police requisition and proved the medical examination

report vide Ext.20. She also proved the blood group test report,

the ossification test report, the pathology report of virginal swab

and the V.D.R.L. test report vide Exts.21, 22, 23 and 24.

The prosecution exhibited nineteen numbers of

documents. Ext.1 is the seizure list of missing report presented

by P.W.5, Ext.2 is the missing report, Ext.3 is the seizure list of

one blue colour saree and a red white blouse of the victim, Ext.4

is the seizure list of Avon bicycle, Ext.5 is the F.I.R., Ext.6 is the

seizure list of one green colour frock and one sky colour top,

Ext.7 is the statement of the victim recorded under section 164

Cr.P.C. of P.W.8, Ext.8 is the medical examination report of the

petitioner, Ext.9 is the spot map, Exts.10 and 11 are the

zimanamas, Ext.12 is the requisition letter, Ext.13 is the seizure

list of one small glass vial containing vaginal swab and another

vial containing pubic hair of the victim and X-Ray plate of the

victim, Ext.14 is the seizure list of discharge certificate of the

appellant and one sealed glass vial containing pubic hair and one

// 9 //

sealed vial containing semen of the appellant and command

certificate of Havildar Madan Mohakud, Ext.15 is the prayer of

P.W.10 to forward the material exhibits and biological samples

for chemical analysis, Ext.16 is the forwarding letter of S.D.J.M.,

Balasore for sending exhibits to R.F.S.L., Ext.17 is the report of

Tahasildar regarding caste of P.W.5 and P.W.8, Ext.18 is the

chemical examination report and Ext.19 is the serological

examination report.

The defence examined four witnesses. D.W.1 is the

appellant himself, D.W.2 Suraj Bahadur, D.W.3 Man Bahadur

Thapa @ Mahabahadur and D.W.4 Dillip Bahadur were working

as Security Guards at Nilachal Concrete factory at Bampada

stated not to have seen the victim at the factory campus..

6. The learned trial Court after assessing the oral as

well as documentary evidence on record, has been pleased to

hold that the core of the evidence deposed to by P.Ws.1, 2, 4, 5,

6, 7 and 8 remained intact and nothing has been elicited in the

cross-examination to disbelieve and discard such evidence which

inspires confidence being natural and spontaneous. It was

further held that the doctor's opinion regarding non-availability

of any injury on the body and private part of the victim is not

acceptable. It was further held that merely because P.Ws.5 and

7 are related to the victim (P.W.8), their evidence cannot be

// 10 //

discarded rather such evidence required closer scrutiny. Learned

trial Court further held that non-examination of the scribe of the

F.I.R. was not at all fatal to the prosecution. It was further held

that the evidence of D.Ws.1, 2, 3 and 4 are not believable and

the evidence of the victim inspired confidence and it is cogent,

convincing and trustworthy and got support from other

corroborative evidence. It was further held that the appellant

took the victim to his residential quarters and committed rape on

her without her consent and against her will and accordingly,

found the appellant guilty under section 342/365/376(1) of the

Indian Penal Code. The learned trial Court however held that the

prosecution has failed to lead evidence to the effect that rape

was committed by the appellant on the victim because the victim

belonged to Scheduled Caste or Scheduled Tribe and as such the

basic ingredients of the offences under sections 3(2)(v)/3(2)(va)

of the S.C. and S.T. (POA) Act are not attracted.

7. Miss Anima Kumari Dei, learned Amicus Curiae

appearing for the appellant contended that the accusation

levelled against the appellant that he forcibly took the victim in a

bicycle from near the factory premises to the spot house without

the consent of the victim is very difficult to be accepted

inasmuch as the road through which both of them passed was

very busy throughout and had the victim shouted or tried to

// 11 //

draw the attention of others against the conduct of the appellant,

she could have been easily rescued. It is further contended that

the sexual intercourse, if any, with the victim was committed

with her consent and the evidence of the victim that the

appellant assaulted her prior to commission of rape on her and

there was tussle between them for about ten to fifteen minutes

and the victim tried to escape from the clutches of the appellant

is falsified by the medical examination report of both the victim

as well as the appellant. It is further argued that it is the

prosecution case that the victim took shelter in the house of an

Adivasi person after the occurrence but none of the family

members of that Adivasi person has been examined. The

wearing apparels of the victim were not produced in Court during

trial and even though the saree, frock and blouse of the victim

were sent for chemical examination to R.F.S.L., Balasore but no

blood or semen could be detected in it as per the Chemical

Examination report (Ext.18). It is argued that since it is not

disputed that the victim is a major girl, in view of the factual

scenario in which the offence alleged to have been committed, it

cannot be said that the prosecution has established the charges

against the appellant beyond all reasonable doubt and therefore,

benefit of doubt should be extended in his favour.

// 12 //

Mr. Arupananda Das, learned Additional Government

Advocate, on the other hand, supported the impugned judgment

and contended that the evidence of the victim is clinching,

trustworthy and even though there is no corroboration from the

medical evidence but the same cannot be a ground to discard

the evidence of the victim in view of the settled position of law

laid down by this Court as well as by the Hon'ble Supreme Court.

It is further contended that when the victim was found missing,

missing report was lodged and the rescue of the victim from the

Adivasi person's house is supported by the informant (P.W.5) as

well as P.W.7. Learned counsel for the State submitted that

P.W.6 had seen that the appellant taking away the victim in a

bicycle and therefore, there is corroboration to the evidence of

the victim and as such the appeal should be dismissed.

8. Adverting to the contentions raised by the learned

counsel for the respective parties, there is no dispute that the

victim (P.W.8) was major at the time of occurrence. The victim

stated in her evidence that on 16.03.2016 at about 12.30 to

1.00 p.m., while she had been to pipe factory to give tiffin to his

father (P.W.5) and was returning home, the appellant asked her

to sit on his cycle and when she refused to sit on his cycle, the

appellant forcibly dragged her and made her to sit on his cycle

and took her towards backside of Laxmi Narayan Mandir and

// 13 //

kept her in a house. It has been brought out in the cross-

examination of the victim that the road which runs by the side of

the pipe factory is a busy road and the spot house is about four

kilometers away from the factory. The I.O. (P.W.10) has stated

that the second spot is four kilometers away from the first spot.

P.W.6 has stated that while he was returning to his house with

his mother from the hospital, on the way at Tamulia Railway

gate, he found the appellant taking the victim on his bicycle. The

informant (P.W.5) has stated in the cross-examination that the

plastic factory is situated by the side of main road which runs

from Bhubaneswar to Balasore and it is a busy place and one

Laxmi Narayan temple, Law College, Art College and some

villages are situated nearby the plastic factory. Thus, from the

aforesaid evidence, it is apparent that the spot house is at a

distance of about four kilometers from the factory from where

the victim was taken by the appellant and the entire path is a

busy route and in such a scenario, if the victim was being

forcibly taken by the appellant on the bicycle, had the victim

protested to the act of the appellant or shouted, it would have

been easily drawn the attention of others. Even when P.W.6

noticed the victim being taken by the appellant, he has not

stated that the victim was shouting or making any protest or

seeking help of anyone to save her. In view of the aforesaid

// 14 //

evidence on record, it is difficult to accept that the victim was

taken forcibly by the appellant on his bicycle from near the gate

of the Odisha Plastic factory to the spot house.

In order to make out a case under section 365 of the

Indian Penal Code, the prosecution is required to prove

kidnapping or abduction by the accused and his intention to keep

the person kidnapped or abducted in wrongful or secret

confinement. Kidnapping from lawful guardianship as per section

361 of the Indian Penal Code requires the prosecution to prove

taking or enticing away a minor or any person of unsound mind.

The minor must be under sixteen years of age, if a male, or

under eighteen years of age, if a female. Such taking or enticing

must be out of keeping of the lawful guardian of such minor or

person of unsound mind, which must be without the consent of

such guardian. In the case in hand, neither the victim was under

eighteen years of age at the time of occurrence nor she was of

unsound mind. There is no material to substantiate enticement

on the part of the appellant, rather it indicates that the victim

voluntarily accompanied the appellant in his bicycle. Abduction

which is defined in section 362 of the Indian Penal Code requires

the prosecution to prove forcible compulsion or inducement by

deceitful means and the object of such compulsion or

inducement must be going of a person from any place. The

// 15 //

ingredients of the offence of abduction is missing in this case.

Therefore, charge under section 365 of the Indian Penal Code

fails.

9. Coming to the charges framed against the appellant

under section 342 and 376(1) of the Indian Penal Code, the

victim (P.W.8) has stated that the appellant torn her dress and

made her naked and then squeezed her breast and then

committed rape on her against her will and consent. When she

protested, the appellant assaulted her and after committing

rape, the appellant locked the house and left the place and again

he came in the night and again he sexually assaulted her against

her will and consent. When the appellant offered her food, she

refused for which the appellant assaulted her. The appellant

supplied her a saree. In the cross-examination, the victim has

stated that she struggled to escape from the clutches of the

appellant and protested the appellant by using her hands and

she struggled for ten to fifteen minutes and gave kick blows to

the appellant but the appellant resisted her blows and the

appellant laid down her on a cot and committed rape on her. She

further stated that the appellant dragged her forcibly and laid

down her on the cot. The doctor (P.W.12), who examined the

victim on 18.03.2016 noticed no injury on any part of the body

of the victim and no stain was found on her clothes. The hymen

// 16 //

was found ruptured having old radiating fibrosed tears and the

vaginal orifice admitted two fingers tightly. There was no

bleeding of discharge from the vagina. The doctor basing on the

report of the radiologist, opined the victim's age to be more than

twenty years. The doctor further stated that there was no sign or

symptom of recent sexual intercourse. In the cross-examination,

the doctor has stated that there was no fresh injury, no bleeding

and no redness. The appellant was examined by P.W.9, the

doctor was attached to D.H.H., Balasore and he found no bodily

injuries on his person suggesting forcible sexual intercourse and

no physical clue in the clothings, however he noticed one

abrasion on the left shoulder. Thus, the evidence of the victim

that there was struggle with the appellant for ten to fifteen

minutes and that the appellant assaulted her twice and that she

was dragged before commission of rape and that the appellant

committed rape on her twice on one day is contradicted by the

medical evidence.

Though the victim stated that the appellant torn her

dresses and made her naked and the Investigating Officer seized

the dresses of the victim on being produced by the informant

(P.W.5) but those dresses were not produced at the time of trial.

The saree, the frock and the blouse which the victim was

// 17 //

wearing were sent for chemical analysis but no blood or semen

was found in it as per the chemical examination report (Ext.15).

The I.O. (P.W.10) has stated that there are other

quarters near the spot house and the spot house was having

cemented wall and asbestos roof and it consisted of one room.

The victim (P.W.8) has stated that the spot house consisted of

one window and one door. It appears from the evidence of the

victim that after committing rape on her in the afternoon, the

appellant left the spot house by locking the house and again

came in the night. There is no evidence that the victim tried to

call anyone to save her by opening the window after the

appellant left the house. Her silence in between the period when

the appellant left the spot house in the afternoon and arrived

again in the night speaks volumes against her conduct that she

was having no consent.

The victim stated that the appellant left her near a

road side in the early morning and one Adivasi family called her

and gave her shelter but it appears that not a single person

where she had taken shelter has been examined.

Evidence has come on record that prior to the

occurrence, the appellant was taking the children of the

informant to the Convent school by his rickshaw, which has been

deposed to by P.W.7. Even the victim has also stated that the

// 18 //

appellant was residing near her house and used to take her

younger brother to the school by rickshaw. Thus, the appellant

was a known person to the victim as well as her family prior to

the occurrence.

10. In view of the foregoing discussions, when the

evidence of the victim that the appellant forcibly took her from

near the factory premises to the spot house in a bicycle appears

to be a doubtful feature, when the evidence of the victim relating

to forcible commission of rape on her twice on the same day by

the appellant is getting no corroboration from the medical

evidence, when the victim's conduct in remaining silent in the

spot house without any attempt to draw the attention of others

and other attending circumstances indicate the victim to be a

consenting party and when the material objects seized were not

produced during trial and relevant witnesses have not been

examined, I am of the humble view that it cannot be said that

the prosecution has successfully established its case against the

appellant beyond all reasonable doubt.

11. Accordingly, the Jail Criminal Appeal is allowed. The

impugned judgment and order of conviction of the appellant

under sections 342/365/376(1) of the Indian Penal Code and the

sentence passed thereunder is hereby set aside and the

appellant is acquitted of all such charges. He shall be set at

// 19 //

liberty forthwith, if his detention is not otherwise required in any

other case.

Lower Court Records with a copy of this judgment be

sent down to the learned trial Court forthwith for information and

necessary action.

Before parting with the case, I would like to put on

record my appreciation to Miss Anima Kumari Dei, the learned

Amicus Curiae for rendering her valuable help and assistance

towards arriving at the decision above mentioned. The learned

Amicus Curiae shall be entitled to her professional fees which is

fixed at Rs.7,500/- (rupees seven thousand five hundred only).

.................................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 28th October 2021/RKMishra