Orissa High Court

Sidheswar Bindhani @ Petu vs State Of Odisha And Another on 8 September, 2021

AFR

                      HIGH COURT OF ORISSA, CUTTACK

                            CRLA No.487 of 2020

     (In the matter of an appeal under Section 374 (2) of the Code of
     Criminal Procedure, 1973 read with Section 14-A of the S.C. and S.T.
     (P.A) Act, 1989)


       Sidheswar Bindhani @ Petu            ...           Appellant

                                          Versus

       State of Odisha and another          ...          Respondents


           For Appellant         :     Mr. Bishnu Prasad Pradhan

           For Respondents       :    Mr. P.K. Maharaj
                                      Additional Standing Counsel

                                       M/s. M.K. Mohapatro, S. Khan
                                       and P.K. Behera

                                       (For Respondent No.2)

       PRESENT :

                 THE HON'BLE SHRI JUSTICE S. K. PANIGRAHI

Date of Hearing - 16.08.2021         Date of Judgment - 08.09.2021


S. K. Panigrahi, J.

1. The appellant in the instant appeal under Section 374(2) of the

Code of Criminal Procedure, 1973 ('Cr.P.C') seeks to challenge the order

dated 24.10.2019 passed by the learned Special Judge, Mayurbhanj,

Baripada in G.R. Case No.33 of 2019 arising out of Kuliana P.S. Case

No.60 of 2019 for commission of offence punishable under Sections // 2 //

363/376(D)/ 328/506 of IPC read with Section 3(1)(w)(i)/3(2)(va) of the

S.C. & S.T. (PA) Act.

2. The prosecution story reveals that on 07.07.2019, at about 7:00

AM, the informant's wife (hereinafter 'victim') had been to the village

Patharaghera Bandha to attend the call of nature when two persons

forcibly carried her to the nearby forest and gang raped her. When she

shouted for help, the appellant tried to administer a liquid substance on

her body which smelled like kerosene. Hearing such holler, two girls of

the nearby village came to the spot while the accused fled. The police

implicated the appellant along with the co-accused on the confessional

statement of the victim.

3. Learned counsel for the appellant submitted that the appellant is

innocent and in no way connected to the occurrence. He highlighted the

fact that the FIR was initially lodged against unknown persons and the

victim disclosed the name of the appellant at much later stage of

investigation. He also contended that the concurrent statements of the

victim are contradictory to each other and do no proffer a consistent story.

In closing, he submitted that the medical report did not reveal any sign or

symptom of recent sexual intercourse and/or bodily injury to the victim

which goes to contradict the narrative of any forceful sexual assault

against her. The charge-sheet has already been submitted. Yet, the

appellant is languishing in custody since 24.07.2019.

// 3 //

4. Learned counsel for the State vehemently opposed the prayer of the

appellant. He submitted that it is a case of gang rape after abduction of

the victim and hence, the appellant does not deserve to be enlarged on

bail. Also, the material on record reveals that the appellant had attempted

to administer poisonous substance to the victim at the time of occurrence.

If he is released on bail, there is a strong apprehension of threat to the life

of the victim and the witnesses in the case.

5. Heard Mr. Bishnu Prasad Pradhan, learned Counsel for the

appellant, Mr. P.K. Maharaj, learned Additional Standing Counsel

appearing for the State and Mr. S. Khan, learned counsel appearing for

the Respondent No.2 and perused the case records.

6. The first question, which comes up for consideration in this case, is

whether deviation or inconsistencies in the victim's testimony could

jeopardize the case of the prosecution. This issue came up for

consideration before the Supreme Court in State of Punjab v. Gurmit

Singh and others,1 where it was held that:

"9. ...The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to

(1996) 2 SCC 384

// 4 //

conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. [emphasis supplied]

7. In Sunil Kumar Sambhudayal Gupta and others v. State of

Maharashtra,2 while dealing with the issue of material contradictions,

the Court held:

"14. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons."

8. In the appeal, learned counsel for the appellant sought to bring out

that, in the absence of corroboration of statement of the prosecutrix by

the aforementioned medical report, the detention of the appellant was

bad. This contention has been totally rejected by Indian Courts and it was

also reiterated that there is no need for corroboration.

9. In Guddoo vs State of U.P.,3 Hon'ble Allahabad High Court shed

light upon the value of medical evidence in cases of rape:

"66. Value of Medical Evidence: Appreciating Sociological and Psychological Aspect of Rape:

(2010) 13 SCC 657

2017 All HC 497

// 5 //

Courts used to take the position that if there was no proof of physical assault there would be no rape. The presumption that if no physical injury is evident on the victim, no sexual intercourse has taken place or rape has not been committed, ignores the fact that rape is not only an offence involving physical violence, but also psychological violence. This too when existing laws recognize mental agony and psychological violence as offences against the body. The victim of rape besides being physically ravished is psychologically wounded. It is the feeling of having been exploited and violated more that anything else which leaves lifelong scars on the mind of the victim. Perhaps this trauma has been recognized in a case where it was held that the absence of injuries on private parts of the prosecutrix would not rule out her being subjected to rape. Krishna Iyer. J. who is famous for his humanistic approach towards law, observed in Rafiq Vs. State of U.P. (1980) 4 SCC 262: "when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In this case, the testimony has commanded acceptance from two courts. When a woman is ravished what is inflicted is not merely physical injury but the deep sense of some deathless shame". Judicial response to human rights cannot be blunted by legal bigotry."

10. In similar spirit, Madan Gopal Kakkad vs. Naval Dubey,4 where

the question as to what constitutes sexual intercourse and rape was

discussed, the Apex Court has put the matter in perspective: -

"37. To constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to

(1992) 3 SCC 204

// 6 //

commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.

38. In Parikh's Book of Medical Jurisprudence and Toxicology, the following passage is found:

Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains." [emphasis supplied]

11. In the backdrop of above mentioned legal and factual aspects, it is

prima facie, evident that there are serious charges of gang rape against

the appellant and another. Victim in her statement recorded under

Section 164 Cr.P.C. has specifically mentioned the name of the appellant

to be the second assailant, as mentioned in the FIR, therefore, there is,

prima facie, direct allegation against the appellant under Section 376D

IPC. Also, it appears that other offences under the Indian Penal Code are,

prima facie made out, which needs to be determined in further

prosecution. Be that as it may, credibility and reliability of statement of

witnesses cannot be looked deeply into, at this stage. Therefore, in totality

of above discussion, the learned Special Judge has rightly dismissed the

application for grant of regular bail to the appellant. No substantial case

is made out for grant of bail.