Lala Rana vs State Of Odisha
2023 Latest Caselaw 13091 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                            C.R.A. No.313 of 1992

                    (In the matter of an application under Section 378(4) of the
                  Criminal Procedure Code.)

                  Lala Rana                                     ....            Appellant
                                                     -versus-
                  State of Odisha                               ....          Respondent

                  Appeared in this case:-
                        For Appellant            :               Mr. D. Panda, Advocate
                                                                        (Amicus Curiae)

                        For Respondent           :                     Mr. S. Pattanaik,
                                                         Learned Additional Government
                                                                              Advocate

                   Appeared in this case:-

                   CORAM:
                   JUSTICE A.C. BEHERA

                                           JUDGMENT

Date of hearing : 21.09.2023 / date of judgment :19.10.2023

A.C. Behera, J. The appellant by preferring this appeal has called in question, the judgment of conviction and order of sentence dated 5th of September, 1992 passed against him (appellant) by the learned Additional Sessions Judge, Balangir in Sessions Case No.48/19 of 1992 arising out of G.R. Case No.243 of 1991 corresponding to Kantabanji P.S. Case No.120 of 1991 in the file of learned Judicial Magistrate First Class, Kantabanji.

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The appellant has been convicted for commission of offence under Sections 376(1) of the Indian Penal Code (in short "the I.P.C.") and has been sentenced to undergo R.I. for seven years for that offence under Section 376(1) of the I.P.C., 1860.

Prosecution case

2. The case of the prosecution against the accused(appellant of this appeal) before the trial court was that, on dated 17.12.1991 at about 8.00 A.M., while victim (P.W.9), (name not to be indicated) was bringing out stale rice to eat in her house, at that time, the accused caught hold her after entering into her house and committed rape on her, for which, she (victim) raised hullah, then, the wife of the accused arrived there and assaulted the victim, by the result of which she (victim) sustained injuries and then, the accused and his wife went away from the house of the victim. Thereafter, when the husband of the victim came to the house, she (victim) disclosed about the incident before him. Therefore on that day at evening time, her husband called a meeting in the village, to which the accused did not attend. Thereafter, on 10.12.1991, she (victim) lodged F.I.R. vide Ext.6 against the accused at Kantabanji Police Station.

3. Basing upon such F.I.R. (Ext.6) at 6.00 P.M. the IIC of Kantabanji Police Station registered Kantabanji P.S. Case No.120 dated 100.12.1991 and he (IIC) himself took up the investigation of the case.

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4. During investigation he(I.O.) examined the informant/victim, her husband, seized the wearing saree of the victim through seizure list (Ext.1), arrested the accused, seized his wearing apparels through seizure list (Ext.7) sent both the accused and the victim through requisitions for their medical examination and accordingly, they were medically examined. He (I.O.) visited the spot, prepared the spot map (Ext.8), examined other witnesses and forwarded the accused to the court. He (I.O.) received medical examination report of the victim and the accused and as per the order of the court sent the seized Exts for chemical examination report and after completing investigation, he (I.O.) submitted Final Form placing the accused to face the trial under Section 376(1) of the I.P.C.

5. Accordingly, after commitment of the case against the accused from the court of learned J.M.F.C., Kantabanji to the court of Sessions Judge, Balangir and on transfer of that case to the court of learned Additional Sessions Judge, Balangir, the accused faced trial in that case in Sessions Case No.48/19 of 1992 having been charged under Section 376(1) of the I.P.C., 1860.

6. The plea of the defence was one of complete denial to the above alleged allegations of prosecution against the accused.

7. During trial in order to establish the aforesaid charge against the accused, prosecution examined altogether nine numbers of witnesses as P.Ws.1 to 9 and also proved several documents on its behalf vide Exts.1 to 9 including the F.I.R. and the medical // 4 //

examination report (Exts.6 and 2). But, whereas the defence has examined one witness from his side as D.W.1.

8. After conclusion of the trial and on perusal of the materials and evidence available in the record, the learned trial court found the accused guilty under Section 376(1) of the I.P.C., 1860 by placing reliance on the solitary testimony of P.W.9 (victim) after disbelieving the plea of the defence and convicted him (accused) thereunder and awarded the sentence against him for commission of offence under Section 376(1( of the I.P.C., 1860 as stated above vide judgment dated 5th of September, 1992 passed in Sessions Case No.48/19 of 1992.

9. On being aggrieved with the aforesaid judgment of conviction and order of sentence passed against the accused, on 5th September, 1992 in Sessions Case No.48/19 of 1992 by the trial court he(accused) preferred this appeal challenging the same being the appellant after taking several grounds in his appeal memo.

10. I have already heard from the learned counsel for the appellant and the learned Additional Government Advocate for the State.

11. In order to assail the impugned judgment of conviction and order of sentence passed by the trial court against the accused, leaned counsel for the accused(appellant) contended that, the solitary testimony of victim (P.W.9) is not in sterling quality for making the same reliable to base the conviction against the accused. Because, prosecution has approached the court with clean hands, but // 5 //

prosecution is guilty for the suppression of material facts. For which, the judgment of conviction passed against the accused by the trial court cannot be sustainable under law.

12. On the contrary, the learned Additional Government Advocate for the State argued in support of the judgment of conviction and order of sentence passed by the trial court against the accused (appellant) contending that, as the accused has been convicted for the offence of rape, for which, the solitary testimony of the victim (P.W.9) is sufficient to base conviction against the accused by the trial court. Therefore, the judgment of conviction and order of sentence passed by the trial court against the accused cannot be interfered.

13. It is the established propositions of law that, in a case for the offence of rape like this case at hand, the evidence of the prosecutrix (victim) must be appreciated (examined) as that of an injured witness. Because, her presence at the spot is probable and question of corroboration to her evidence by other witnesses may not be necessary, when the evidence of the prosecutrix(victim) becomes reliable and trustworthy, but, if the court finds that, the genesis of the case is wrong and unbelievable and when on reading of the whole evidence of prosecutrix, it is found that, her evidence is improbable, then in that case conviction cannot be recorded on the solitary testimony of the prosecutrix(victim), unless there is corroboration to her evidence. Because, it is the duty of the court to guard against attempt of false implication in rape cases and the // 6 //

accused must be protected against the possibility of false implication.

So, by keeping the above settled principles of law in mind, the case in hand is to be dealt with and the evidence of the witness including evidence of the victim (P.W.9) is to be appreciated for ascertaining the sustainability and justifiability of the impugned judgment of conviction and order of sentence passed by the trial court.

The victim (P.W.9) has deposed in her Examination-in-Chief by stating that, "the incident took place in the month of Margasira at about 8.00 A.M. At that time she was in her house and at that time she was bringing stale rice. None was present in her house at that time. The accused forcibly entered into her house. He caught hold of her and lifting her cloth penetrated his penis into her vagina when she was in bending condition. Then, he made her lie to the ground and thereafter committed rape on her. She (P.W.9) raised alaram, the accused was committing sexual act even at the time of raising shouts. After satisfying his last, the accused left her. She (P.W.9) followed him(accused) and the wife of accused came there and slapped her (P.W.9) on her cheek. Bhanumati Bagarty(P.W.1) there and separated them. She sustained injuries on her cheek and head. She narrated the incident to her husband on his returned at 9.00 A.M. Her husband called a Panchayat. In the Panchant, the accused did not attend. She waited for two days hoping to settle the matter in the village. Then, she went to Kantabanji Police Station and reported // 7 //

the incident orally. Police got her statements recorded and read over the contents to her and she put thumb mark."

That (P.W.9 victim) has deposed in paras-6, 7 and 8 of her deposition by setting that, "Fula, the wife of the accused came and told her, why she is blaming her husband. Besides this, she did not tell anything. Again said that, she (Fula Rana, wife of the accused) alone assaulted her and she (P.W.9) sustained injuries. Panchayat was called by her husband in the evening, she narrated the incident in the Panchayat she cannot say whether her husband given anything in writing to the Panchayat. She does not remember, who presided over in the meeting in the evening. Nothing was reduced in writing in the panchanyat. She did not obtain anything in writing from panchayat."

14. It appears from the above evidence of the victim (P.W.9) that, soon after the incident, the wife of the accused had assaulted the victim (P.W.9) near her house and there was fighting between her(victim) and the accused, for which (P.W.1 Bhanumati Bagarty) had separated them. The village meeting was called at the evening.

The P.W.9 (victim) has also given self contradictory statements, because, at one stage she has stated that, the wife of the accused assaulted her, but in another stage, she has stated that, the wife of the accused came there and told her why she is blaming her husband without assaulting her.

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The husband of the victim has been examined as P.W.5. He (P.W.5) has deposed that, as no decision could be made in the meeting, three to four days after the incident, he came to Kantabanji and lodged the report. He had called the meeting at 7.00 P.M. on the date of incident and there was gathering of Panchayat members by 8.00 P.M. He had not informed any one of the villagers about the incident. After knowing the incident from his wife, immediately he did not give any paper in writing to the Panchayat nor the panchayat members advised in writing to report the matter at the Police Station. The accused came to the Police Station in the morning, i.e., next day of the meeting and reported that, he was going to be entangled in a false case.

The above evidence of the husband of the victim, ( P.W.5) is going to show that, the accused had lodged F.I.R. on the next day of the incident at Kantabanji Police Station apprehending his false implication.

The F.I.R. of this case at hand vide Ext.6 has been lodged 3 to 4 days after the incident, i.e., 3 to 4 days after the so-called village meeting.

15. P.W.1, (who had allegedly separated the victim and the wife of the accused, when they were fighting with each other in front of the house of the victim) has not uttered a single word in her evidence about any disclosure of the victim before her (P.W.1) alleging any sexual act of the accused on her, through according to the victim (P.W.9) she (P.W.1) had immediately reached near the // 9 //

spot soon after the alleged incident. She (P.W.1) has deposed in her Examination-in-Chief by stating that, "the occurrence took place about six months back in the morning where the victim and Fula Rana (the wife of the accused) were quarreling and fighting, she (P.W.1) separated them. That, P.W.1 has deposed in para-2 in her deposition by stating that, "the houses of Dama Rana, Metna Rana, Bhramar Rana, Judhsitir Rana and Bali Rana are situated in the western side of the victim's house and to the West there are houses of Chinta Rana, Braja Rana and Bhagi Rana. The houses of Lakhan Rana, Dama Rana, Dharmasala, Biraj Rama and Magsira Rana are in front of the house of the victim. Giridhari (husband of the victim) his mother and his two wives, i.e., Kali and the victim are staying in one house.

The above evidence of P.W.1 is going to show that, there are houses adjacent to the house of the victim (P.W.9). One of the adjacent houses owner has deposed in his Examination-in-Chief by stating that, "he heard sounds of the victim in her house. So, he rushed to the spot and show that the accused is coming out from the house of the victim and the wife of the accused was assaulting the victim. P.W.1 separated them. A meeting was held in the village in the evening. He (P.W.2) is the uncle of the husband of the victim.

He (P.W.2) has not stated anything about any disclosure of the victim (P.W.2) before her in respect of the commission of any sexual act by the accused on her. Rather, it is forthcoming from his // 10 //

above evidence that, he saw that, the accused, and his wife both were coming out from the house of the victim.

P.W.3 has deposed in his evidence by stating that, Khutulu Suna is the wardmember of their village and he (Khutulu Sahu) had attended the village meeting. The meeting was held in the house of Bhagi Rana. The above evidence of P.W.3 is going to show that, in the village meeting the wardmember-Khutulu Suna was present and the said meeting was held in the house of Bhagi Rana.

16. The wardmember-Khutulu Suna has been examined as P.W.4. He (P.W.4) has deposed in his evidence by stating that, he was the wardmember of the village till May, 1992. He was not called to any meeting. Normally, the villagers used to call him to attend the meeting and decide the matters. The above evidence of P.W.4 is contradicting to the evidence of P.W.3 because, he had not attended any meeting relating to the alleged incident.

17. Though P.W.3 has deposed that, meeting was held in the house of Bhagi Rana but, any Bhagi Rana has not been examined during trial on behalf of the prosecution.

The Investigating Officer, i.e. P.W.10 deposed in para-2 of his deposition by stating that, P.W.9(victim) had not stated before him or in the report that, the accused caught hold of her while she was in bending conditionand put his penis in her vagina.

During cross-examination, the above question was also asked to the victim by the defence that, she had not stated in her report and // 11 //

so also had not stated before the police that, the accused raped on her when she was in bending condition and put his penis into her vagina, to which she (victim) denied. But, during confrontation to the I.O. (P.W.10) he has deposed that, she (victim) had not stated the above things before him.

Therefore, the above evidence of the victim in respect of catching hold of her by the accused while she (victim) was in bending condition and put her penis into her vagina is a duly proved contradiction, which cannot be taken into the zone of consideration.

18. The medical evidence, i.e., evidence of the doctor (P.W.6) in reference to the medical report of the victim (Ext.2) is going to show that, there is no sign of recent sexual intercourse and there was no injury over the private part of the victim and though there was abrasion (nail mark) over the right side of the face, the same can be possible by self implication and he (P.W.6) cannot say about the duration of that abrasion.

19. On conjoint reading to the aforesaid evidence of P.Ws.1, 2, 3, 4, 5 6, 9 and 10, it is forthcoming that, on the next day of the alleged incident, the accused had lodged an F.I.R. alleging that, he is going to be implicated falsely.

Like wise conducting any village meeting relating to the alleged incident is not believable, because, P.W.3 has deposed that the wardmember (P.W.4) had attended the meeting, to which P.W.4 himself has denied. Because P.W.3 has deposed that, meeting was // 12 //

held in the house of Bhagi Rana, but, Bhagi Rana has not been examined by the I.O. or during trial. That part, when P.W.2 (uncle of the husband of the victim) has deposed that, at the time of incident, the accused and his wife both were coming from the house of the victim, which is not believable in ordinary prudence, because the reason that a husband like accused shall never commit rape on an another woman in presence of his wife. In addition to that, when none of the witnesses of the prosecution including P.Ws.1 and 2 (those had arrived near the spot soon after the incident according to the story of the prosecution while the victim and the wife of the accused were fighting with each other), they (P.Ws.1 and 2) have not stated anything before them about the commission of any sexual act by the accused on her. Likewise, the medical evidence, i.e., the evidence of the doctor (P.W.6) has negatived the allegation of rape on the victim, because, he (P.W.6) also did not find any present or past injury including any recent sexual intercourse.

As per the discussions made above, when the evidence of the victim (P.W.9) is not consistent and when the conducting of any meeting in the village on the alleged date of the incident is disbelieved and delay of four days in lodging of the F.I.R. has remained unexplained and when, it is not possible to believe about the commission of rape by the accused on the victim (P.W.9) in presence of his wife, then at this juncture, story projected by the prosecutrix(P.W.9) is found to be improbable. Therefore, it is held that, the genesis of the case has become unbelievable. Therefore, the judgment of conviction recorded by the trial court basing upon the // 13 //

solitary testimony of the victim (P.W.9) cannot be sustainable under law.

The conclusion drawn above on the basis of evidence available in the record as discussed above with regard to the un- sustainability of the judgment of conviction passed by the learned trial court against the accused finds support from the ratio of the following decisions:-

(i) 2016(4) Crimes--59--(S.C.): Raja and others vrs. State of Karnataka--I.P.C., 1860--Section 376(para-24)--"Evidence of prosecutrix--must be examined as that of an injured witness, whose presence at the spot is probable. However, it can never be taken as gospel truth."

(ii) 2017(3) Crimes--5 (Delhi)--Jakir Malik vrs. State--I.P.C., 1860--Section 376--"In case evidence read in its totality and the story projected by the prosecutrix is found to be improbable, her version is liable to be rejected."

(iii) 2023(2) Crimes-519(J&K)--Raja Sajad Ahmad Wani vrs. State of Jammu and Kashmir-- I.P.C., 1860--Section 376--"conviction cannot be recorded on solitary statement of the prosecutrix which does not inspiring confidence."

(iv) 2015(62) OCR--(S.C.)-896--State of Karnata vrs. F. Nataraj--I.P.C., 1860--Section 376-- "Factum of sexual intercourse itself not proved beyond reasonable doubt. No injury on the private parts, no sign of sexual intercourse during the past seven days--Accused entitled to benefit of doubt."

(v) 2020(I) OJR-764(S.C.)--Santosh Prasad @ Santosh Kumar vrs. State of Bihar--I.P.C., 1860-- Sections 376 and 450--Rape--Evidence of // 14 //

prosecutrix as sterling witness--witness can be called as sterling witness whose version can be accepted by court without any corroboration on which guilty can be passed.

"Accused can be convicted on sole evidence of prosecutrix, provided it is reliable and trustworthy. However, accused most also be protected against the possibility of false implication. Instantly, evidence of prosecutrix not /probable, medical/FSL report does not support case of prosecution--F.I.R. lodged belatedly--Enmity between the parties in respect of land--manner in which, occurrence is stated to have occurred not believable. Therefore the conviction and sentence set aside."

20. On analysis of the facts and circumstances of the case as per the discussions and observations made above, when solitary testimony of the prosecutrix (P.W.9) has not become reliable and trustworthy being inconsistent in nature and the manner in which the occurrence is stated to have occurred has not become believable and when no injury on the private parts of the victim (P.W.9) and no sign of sexual intercourse during the last five days then, at this juncture, by applying the principles of law enunciated in the nature of the decisions of the referred to supra. It is held that, the accused is entitled for the benefit of doubt because neither the story of the prosecution is free from doubt, nor the evidence of the witnesses is beyond suspicion.

21. Therefore, the impugned judgment of conviction and order of sentence passed by the trial court against the accused cannot be sustainable under law. For which, there is justification under law for making interference with the same through this appeal filed by the // 15 //

appellant. As such, there is merit in the appeal of the appellant. The same is to be allowed.

22. In the result, the appeal filed by the appellant is allowed. The judgment of conviction and order of sentenced passed on dated 5th of September, 1992 under Section 376(1) of the I.P.C., 1860, by the learned Additional Sessions Judge, in Sessions Case No.48/19 of 1992 against the accused(appellant) is set aside. Accordingly, the accused(appellant) is acquitted from the charge/offence under Section 376, I.P.C., 1860 on the ground of benefit of doubt. Therefore, the accused (appellant) is directed to be set at liberty forthwith after being discharged from his bail bonds. The appeal is disposed of finally.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 19th of October, 2023/ Jagabandhu, P.A.

Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 20-Oct-2023 11:44:42