State Of Orissa vs Sukru Gouda

State of Orissa ...Appellant

Versus

Sukru Gouda ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the

Orissa High Court directing acquittal of the respondent of the charges under

Section 376 of the Indian Penal Code, 1860 (in short the `IPC') and Sections

1 3 to 5 of the Scheduled Castes and Scheduled tribes (Prevention of

Atrocities) Act, 1989 (in short the `Atrocities Act'). The respondent No.1

filed an appeal before the High Court questioning his conviction as recorded

by learned Special Judge-cum-Sessions Judge, Koraput, Jeypore.

3. Prosecution version sans unnecessary details is as follows:

On the basis of an FIR lodged on 4-9-1993 by Dasamu Bhatra (P.W.4)

alleging that on the said day at 1.00 p.m while his wife (P.W.1) was

collecting fire wood in a nearby jungle known as 'Dobari Jungle', the

respondent who was collecting cow dung in the said jungle told her that a

big piece of wood was lying nearby in the jungle. P.W.1 however refused to

go there. It was alleged that thereafter the respondent forcibly pulled her

down on the ground and in spite of her resistance committed rape on her

inside that jungle by raising the saree of P.W.1 and also removing the pad

which P.W.1 was using as she was having her monthly menstruation. While

the appellant was committing the crime, Lachhminath Bhatra (PW2) arrived

at the spot, seeing whom the appellant left P.W.1 and fled away. Due to rape

on her P.W.1 had profused bleeding. She reported the matter to her husband

2 P.W.4 who lodged the report before police at 6 p.m., the very day. On the

basis of such report, G.R. Case No. 383 of 1993 was registered. After

investigation prosecution submitted charge sheet against the respondent who

faced the trial.

The plea of the respondent was complete denial. He further stated that a day

prior to the alleged occurrence, he had dispute with informant P.W.4 and his

wife - the alleged victim (P.W.1) regarding landed property which had

culminated in a quarrel and in order to harass the respondent the case had

been falsely foisted against him.

To prove its case, prosecution examined as many as eight witnesses and

exhibited eleven documents. Two witnesses were examined by the defence.

P.W.1 is the alleged victim. She corroborated the FIR story. Lachhminath

Bhatra (PW2) who was stated to have seen the alleged occurrence.

Lachhma Bhatrani (P.W. 3) a resident of the village and was near the spot of

occurrence before whom P.W.1 was stated to have narrated the incident

soon thereafter. P.W.4 was Dasamu Bhatra - P.W.1's husband - before

whom P.W.1 stated to have narrated the alleged incident whereafter he had

3 reported the matter to the police. Damuru Pujari (P.W.5) is another person

before whom also P.W.1 had narrated the alleged incident. The Lady

Assistant Surgeon (P.W.6) who had examined the alleged victim on police

requisition. S. Venkataswamy (P.W.7) the A.S.I of Police Kosagumuda

Outpost before whom P.W.4 had lodged the FIR and was one of the

investigating officers. O.I.C. of Kodinga P.S. (PW 8) the other investigating

officer who had submitted charge sheet in the case.

Out of the defence witnesses, Laikhana Bhatra (DW 1) who deposed about

the dispute between the appellant and PW 4 over excavation of a drain on

the land of the appellant and the quarrel ensuing thereafter. Hari Mirgan

(DW 2) who deposed about the land dispute which was reported to him by

the appellant.

4. Learned counsel for the appellant-State referred to the evidence of PWs

1&2 and submitted that the High Court was not justified in directing

acquittal. No reason has been indicated to discard their evidence. On

surmises and conjectures the High Court has directed acquittal.

5. There is no appearance on behalf of the accused in spite of service of

notice.

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6. A bare reading of the High Court's order shows a complete non

application of mind. Some of the conclusions are clearly contrary to the law

as laid down by this Court. The High Court's conclusions are not only

abrupt but also it clearly indicate the non application of mind. The

reasoning is contained in one paragraph i.e. Para 11 reads as follows:

"11 After perusing the statements of the doctor and the other prosecution witnesses, we are unable to accept the prosecution story without a pinch of salt. Here is a case where excepting P.W.1and P.W.2 the person who claimed to have seen the occurrence, there is no other eye-witness. The medical evidence contradicts the ocular statement of P.W.2. If P.W.2's statement is believed, a suspicion arises with regard to the conduct of P.W.1. Admittedly PW.1 was an able-bodied tribal lady, capable of taking care of herself. It was natural that she would have resisted to the best of her ability if sexual intercourse was being committed on her against her consent. P.W.2's evidence does not reveal that any resistance by P.W.1 was found by him. In fact, P.W.2 walked inside the jungle when the crime as alleged was in the process. Law is well settled that it is not possible for a single man to commit sexual intercourse with a healthy adult female in full possession of her senses against her will. If there would have been any resistance by P.W.1, at least some scratches or bruises would have been found either on her body or the body of the appellant. The medical evidence clearly reveals that no external injury was detected. Though it was alleged that P.W.1 was raped during her menstrual period and that there was profuse bleeding due to rape, the wearing apparel of PW 1 did not contain any blood stain, as would appear from the chemical examination report (Ext. 11). This also throws a cloud of suspicion on the truthfulness of the prosecution case. A cumulative effect of the medical evidence coupled with the oral testimony throws a doubt on the correctness of the allegation of rape put forward by PW 1 in her statement in Court. Thus the assessment of the entire evidence in the case leads us to the conclusion that prosecution has not succeeded to prove its case beyond all doubts. We have therefore no hesitation to set

5 aside the conviction and sentence passed against the appellant by the court below."

(Underlined for emphasis)

The conclusions are not only confusing but border non absurdity. It baffles

us as to why High Court says that "law is well settled that it is not possible

for a single man to commit sexual inter course with a healthy adult female in

full possession of her senses against her will." There is not even a single

decision which says so. The presumptuous conclusion is that PW 1 was an

able bodied tribal lady capable of taking care of herself. On that basis the

High Court has come to this conclusion is not fathomable. To add to the

confusion the High Court itself noticed that there were two contradictory

stands. One was that no such incidence had taken place and this was a case

of false implication; other was that the act was with consent. Such

irreconcilable stand should not have found favour with the High Court. The

High Court observed that except PWs 1 & 2, there were no other eye

witnesses, and therefore, prosecution version was not acceptable. To say the

least, the conclusion is not only contrary to law laid down by this Court, but

also shows scant regard to law declared by this Court.

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7. Before we part with the case, we note with lot of concern that

notwithstanding series of decisions by not only the Orissa High Court but

also of this Court that name of victim should not be indicated in the

judgment, the High Court has done the reverse. This speaks volumes of

judicial indiscipline.

8. We would have set aside the order of the High Court and restored that

of the trial court. But it is considered appropriate to remit the matter back to

the High Court to hear the appeal afresh for disposal of the same as the

accused-respondent has not appeared before the court in spite of notice,

keeping in view the correct legal principles.

9. The appeal is disposed of accordingly.

.................................................J. (Dr. ARIJIT PASAYAT)

...............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, December 16, 2008

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