Buturu Munda Birsa And Others vs State Of Orissa on 21 November, 2017

THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO.41 OF 2016
From the judgment and order dated 07.04.2016 passed by
Sri Ganeswar Pati, Additional Sessions Judge, Bonai in
Sessions Trial Case No.188/39 of 2014.
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Buturu Munda @ Birsa others …….. Appellants

-Versus-

State of Orissa ……… Respondent

For Appellants – Mr. Himanshu Bhusan Dash

For Respondent – Mr. Sougat Das
Additional Standing Counsel
————-
P R E S E N T:

THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY

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Date of Hearing-14.10.2017 : Date of Judgment-.21.11.2017

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DR. D.P. CHOUDHURY, J. The appellants assailed the judgment
of conviction and sentence passed by the learned Additional
Sessions Judge, Bonai in Sessions Trial No.188/39 of 2014
for the offence under Sections 376(2)(l)/376-D/323 of IPC to
undergo sentence.

FACTS :

2. The factual matrix leading to the case of the
prosecution is that the victim woman, who is major, had
gone to a Mela on 15.01.2014 to witness the same with her
relative. It is alleged, inter alia, that when the victim was
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dancing on the festival ground on the occasion of Makar
Parba, one of the culprits called her to a place where the
present accused persons were already there. It is alleged
further that the victim is partially mentally retarded dumb
woman. All the appellants including a juvenile, in furtherance
of their common intention, lifted the victim woman to a
forest side where they committed gang rape on her. Not only
this but also they assaulted the victim woman. After
committing rape, all the accused persons fled away from the
spot. Thereafter, the victim woman came back to her sister’s
house and informed about the incident to her relatives. Then
her relatives informed the parents of the victim woman. On
18.01.2014, the informant lodged written F.I.R. It is the
further case of prosecution that after investigation was
initiated, the police examined the witnesses including the
victim woman and sent her as well as the accused persons
for medical examination. Police also seized the wearing
apparels of the victim woman and the accused persons. The
seized property was sent for chemical examination. After
completion of investigation, the police submitted charge
sheet.

3. The plea of the appellants, as revealed from the
statement recorded under
Section 313 of Cr.P.C. and cross-
examination made to P.Ws., is squarely denied to the charge
and took a further plea that they have been falsely
implicated in this case.

4. Prosecution, in order to prove its case, has
examined as many as 12 witnesses. P.W.3 is the victim
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woman, P.W.1 is the informant, P.W.11 is the doctor, P.W.12
is the I.O. and rest of the witnesses are villagers.

5. Learned trial Court, after analyzing the evidence
of prosecution, found the present appellants guilty of
committing gang rape and voluntary causing hurt on the
person of the victim woman and for that convicted them
followed with sentence to undergo.

SUBMISSIONS

6. Learned counsel for the appellants submitted that
the learned trial court has erred in law by not considering the
case with proper perspective. According to him, there is
unexplained delay for lodging F.I.R. because of the fact that
the occurrence allegedly took place on 15.01.2014 whereas
the F.I.R. was lodged on 18.01.2014. He further submitted
that the medical evidence is silent as to recent sign or
symptom of sexual intercourse with the victim woman.

7. Learned counsel for the appellants further
submitted that there is no eye witness to the occurrence and
the statement of the informant is not based on clear
evidence, because same is not admissible. So, he submitted
to quash the order of conviction and sentence.

8. Learned Additional Standing Counsel for the
State submitted that the statement of the P.W.3, who is the
victim woman, can be solely relied on to prove the
occurrence as her statement has not been rebutted in any
manner by the prosecution.

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9. Learned Additional Standing Counsel for the
State further submitted that since the victim is partially
mentally retarded woman with dumbness, the statement
recorded with the help of the interpreter is clear enough to
show the culpability of the appellants. According to him, the
statement of the doctor is clear to show that the victim
woman has got external injury on her body and the injury on
her female genital so as to infer the rape committed on her.

10. Learned Additional Standing Counsel further
submitted that in case of rape, the statement of the victim
woman can be relied upon solely to record conviction and the
minor discrepancies have to be overlooked. So, he supported
the impugned judgment of conviction and sentence passed
by the learned trial Court.

DISCUSSION

11. It is reported in 1990 SCC (Cri) 210; State of
Maharashtra v. Chandraprakash Kewalchand Jain
where Their Lordships observed at paragraph-16 in the
following manner:-

“16. A prosecutrix of a sex offence cannot be put
on par with an accomplice. She is in fact a victim of
the crime.
The Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under
Section 118
and her evidence must receive the same weight as is
attached to an injured in cases of physical violence.
The same degree of care and caution must attach in
the evaluation of her evidence as in the case of an
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injured complainant or witness and no more. What is
necessary is that the court must be alive to and
conscious of the fact that it is dealing with the
evidence of a person who is interested in the out-
come of the charge levelled by her. If the court keeps
this in mind and feels satisfied that it can act on the
evidence of the prosecutrix, there is no rule of law or
practice incorporated in the
Evidence Act similar to
illustration (b) to
Section 114 which requires it to
look for corroboration. If for some reason the court is
hesitant to place implicit reliance on the testimony of
the prosecutrix it may look for evidence which may
lend assurance to her testimony short of
corroboration required in the case of an accomplice.
The nature of evidence required to lend assurance to
the testimony of the prosecutrix must necessarily
depend on the facts and circumstances of each case.
But if a prosecutrix is an adult and of full
understanding the court is entitled to base a
conviction on her evidence unless the same is shown
to be infirm and not trustworthy. If the totality of the
circumstances appearing on the record of the case
discussed that the prosecutrix does not have a
strong motive to falsely involve the person charged,
the court should ordinarily have no hesitation in
accepting her evidence…….”

With due regards to the aforesaid decision, it is

settled in law that the evidence of prosecutrix cannot be lost

sight of and basing on her sole testimony, the conviction can

be maintained provided her testimony is clear, cogent and

reposes confidence.

12. It is also reported in the case of State of

Rajasthan -vrs- Darshan Singh Alias Darshan Lal;

(2012) 5 SCC 789 where Their Lordships observed at
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paragraphs-25, 26 and 29 in the following manner:-

“25. In M.P. Sharma v. Satish Chandra; AIR 1954 SC
300, this Court held that: (AIR p.304, para 10)

“10. … A person can “be a witness” not merely
by giving oral evidence but also by producing
documents or making intelligible gestures as in the case
of a dumb witness (see
Section 119 of the Evidence Act)
or the like.”

26. The object of enacting the provisions of Section
119 of the Evidence Act reveals that deaf and dumb
persons were earlier contemplated in law as idiots.
However, such a view has subsequently been changed
for the reason that modern science revealed that
persons affected with such calamities are generally
found more intelligent, and to be susceptible to far
higher culture than one was once supposed. When a
deaf and dumb person is examined in the court, the
court has to exercise due caution and take care to
ascertain before he is examined that he possesses the
requisite amount of intelligence and that he understands
the nature of an oath. On being satisfied on this, the
witness may be administered oath by appropriate
means and that also with the assistance of an
interpreter. However, in case a person can read and
write, it is most desirable to adopt that method being
more satisfactory than any sign language. The law
requires that there must be a record of signs and not
the interpretation of signs.

29. To sum up, a deaf and dumb person is a
competent witness. If in the opinion of the Court, oath
can be administered to him/her, it should be so done.
Such a witness, if able to read and write, it is desirable
to record his statement giving him questions in writing
and seeking answers in writing. In case the witness is
not able to read and write, his statement can be
recorded in sign language with the aid of interpreter, if
found necessary. In case the interpreter is provided, he
should be a person of the same surrounding but should
not have any interest in the case and he should be
administered oath.”

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With due regards to the aforesaid decision, it is

clear that the evidence of deaf and dumb can be relied on as

she is a competent witness but her evidence in the facts and

circumstances can be taken up with the aid of interpreter.

13. At the same time, her evidence should be

assessed keeping in mind the principle of appreciation of

evidence of a prosecutrix in sexual assault case. It is not out

of place to mention that while re-appreciating evidence by

the Appellate Court, the court should follow the principle of

law as enunciated time to time by the Hon’ble Apex Court.

No doubt, the evidence of a witness may be wholly reliable or

may be wholly un-reliable or may be partially reliable or

partially un-reliable, the court should separate grain from

chaff.

14. The evidence of P.W.11 shows that he has

examined the appellants and found they are capable of

undertaking sexual intercourse. He proved vide Exts.5, 6 and

7. Their capability to commit offence also lends corroboration

to the prosecution.

15. From the statement of P.W.3, who is the victim

woman of aged about 30 years, it appears that she is a
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dumb and also a tribal Munda girl. So, the trial Court has

engaged the interpreter from the village of the victim. It

appears that the trial Court has followed the procedures as

enunciated by the Hon’ble Apex Court while examining the

semi dumb witness. According to P.W.3, while she had gone

to see Makar Parba, a boy from the village Kunjapani called

the victim to a separate place where present appellants were

already there. They forcibly took away her inside the forest

side. The victim has clearly stated that these appellants

forcibly made her flat on the ground by assaulting her and

committed forcibly sexual intercourse. After sexual

intercourse, they left the spot and due to such sexual

intercourse with her, she was not able to walk properly. She

then came to her sister’s house to narrate the incident to

them. At paragraph-3 of her cross-examination, she

explained about the details of occurrence. According to her,

appellant Butru Munda first committed rape on her and soon

after Butru, the other two accused persons one after another

committed rape on her. It is stated to have sustained injuries

on her both hands and her neck although she has tried to get

rid of from the clutches of the appellants but she was not

able to, in her attempt. In further cross-examination, the
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defence has not brought any material omission in her

testimony so as to discard her testimony. On the other hand,

the defence has failed to shake her testimony in any manner

during cross-examination. So, her testimony suffers from no

infirmity or blemish whatsoever. Thus, the statement of P.W.3

is clear and consistent to show that she is wholly reliable and

truthful witness to prove offence of rape.

16. P.W. 1 is the informant of the case and from his

statement, it appears that he came to know about the

occurrence from his wife and then lodged the F.I.R. vide

Ext.1. According to him, one Arjun Mundari has scribed the

F.I.R. as per his instruction. He admitted in his cross-

examination that the victim woman was a mentally weak

lady. It appears that he has not seen the occurrence. So his

evidence except lodging of the F.I.R. does not make any

other improvement to the prosecution.

17. P.W.2 happens to be her cousin sister and during

incident she was staying in her house. According to her, on

Makar festival, the victim had gone with her husband-P.W.1

to a Mela. On the next day of the occurrence, P.W.3(victim)

came back and informed her that the appellants have forcibly
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committed rape on her after assaulting on her hands. In

cross-examination, she admitted that after the incident, the

victim had gone to her parental house and in the evening

informed P.W.2 about the occurrence. Since the victim

woman is a dumb and mentally weak, the narration of the

incident in little late to P.W.2 does not take away the rigour

of the prosecution but the fact remains that P.W.2 has lent

corroboration to the statement of P.W.3 about the

occurrence.

18. From the statement of P.W.6, who is the mother

of the victim woman, it reveals that on the date of

occurrence, P.W.1 had taken P.W.3 to visit Makar Mela. She

came to know from the informant that the appellants have

committed rape on her daughter (P.W.3). Then she and P.W.1

lodged the F.I.R. Admittedly, P.W.1 is her son-in-law. Of

course, little doubt is raised as to why P.W.3 did not disclose

the matter to P.W.6. In that regard, there is no cross-

examination to the P.W.6. Moreover, since it is a tribal

community, the normal expectation from each individual

remotely available in the fact and circumstance of the case.

Moreover, manner of reaction of each person to an incident

cannot be similar but may differ from person to person. On
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the other hand, the statement of P.W.6 lends assurance to

the case of the prosecution to the fact that the victim woman

had gone with the informant to see Makar Mela.

19. P.W.11 is a vital witness because he is the doctor,

who examined the victim woman. He appears to have

examined the victim woman on the next day of the

occurrence at 11 A.M. and found following injuries on her

person:-

“1. Right arm and fore arm swollen and
tendered.

2. Left thigh tenderness.

3. Left forehead and cheek tendered.

4. No genital region injury observed.”

He proved the medical report vide Ext.4.

20. P.W.11 stated to have re-examined the victim

woman on 18.01.2014 at 3.45 PM on the query made by the

I.O. to examine her genital part. He proved his report vide

Ext.8 and also stated at paragraph-6 about the examination

on her genital part, which is reproduced in the following:-

“6. On my examination on the female
genital part of the victim lady I found no stain, no
discharge, no bleeding and no injury around it. Two
fingers admitted the vagina. The vaginal canal
roaming, condition of the service was normal. I have
conducted her pregnancy test but it was negative.”

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21. In cross-examination, he admitted that he

noticed no internal or external injuries either on her body or

on her female genital parts. It appears that the doctor has

put himself in a disadvantage position during cross-

examination, inasmuch as in the examination-in-chief, he

stated clearly about presence of external injury on the

person of the victim woman but in cross-examination he

denied to have seen external injury. Not only this but also in

cross-examination, admittedly there is no circumstances

before him to suggest any recent sexual intercourse with the

victim woman. When there are clear external injuries, it was

not expected from the doctor to give a clean cheat to the

appellants by stating that no recent sexual intercourse with

the victim. The Ext.4 shows that the I.O. did not send her

signature for examination of the female genital although the

case of rape was registered. Again he sent the victim in the

afternoon for her such examination. It gives doubt as to

correctness in the investigation.

22. When exhibit-4 shows clearly about the external

injuries, same lends sufficient corroboration to the evidence

of the P.W.3(victim) as to commission of rape. On verification

of the statement of the doctor along with exhibit-8, it
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appears that she being a major grown up girl having vaginal

capacity of two fingers, the absence of injury on the private

part does not deny the possibility of rape which undoubtedly

corroborates the evidence of P.W.3 (victim) as relied upon by

the Modi’s Medical Jurisprudence on 2oth Edition at page-337

where it is mentioned that the possibility of sexual

intercourse having taken place without rupturing the hymen

may be inferred, if the vaginal orifice is big enough to admit

easily the passage of two fingers. Moreover, the injuries on

her left thigh and cheek and other parts of the body must be

read along with feature of the female genital of the victim

woman. So, the absence of the injury on the genital of the

victim woman cannot absolutely wipe out the possibility of

rape while the external injuries are quite suggestive of the

forcible sexual intercourse with her. Of course, the evidence

of the doctor further discloses that the victim woman was not

answering well for which he found her partially mentally

impaired. When the victim woman suffered so much external

injuries and faced intolerable gang rape as stated by her, the

silence on her part before the doctor cannot negative the

case of the prosecution but subserve justice by only

observing that she has not only suffered the injuries on her
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person but also suffered trauma while going through horror

of crime. Be that as it may, the evidence of the doctor amply

lends assurance to the statement of the victim that she was

raped by the appellants.

23. It appears that the I.O. has seized wearing

apparels of the victim and the appellants. The I.O. has also

seized the vaginal swab of the victim and the sample of

semen and other material of the appellants. He has sent for

chemical examination but failed to prove the chemical

examination report. The lackadaisical attitude of the I.O. in

this case by not proving the chemical examination report,

speaks on the non-performance of investigating agency.

However, the evidence as discussed above are enough for

the prosecution to prove that P.W.3 (victim) was ravished by

the appellants.

24. Learned trial Court has also found that the

appellants committed rape on the victim and there is no any

disagreement with his finding. It appears that he has

convicted the appellants under Sections 376(2)(l)/376-D/323

of IPC. Since the occurrence relates to 15.01.2014 which is

after the amendment to Section 376 of IPC taken place in
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2013, the offences under which conviction recorded require

discussion. Section 376(2)(l) of IPC speaks that whoever

committed rape on a woman suffering from mental or

physical disability is punishable not less than 10 years which

may be extended to imprisonment for life and also liable to

be fine. Similarly, Section 376-D of IPC refers to a gang rape

and each of them would be punished with rigorous

imprisonment for a term which shall not be less than 20

years, but which may extend to life which shall mean

imprisonment for the reminder of that person’s natural life,

and with fine. Since each of the appellant has committed

rape with the victim woman who is semi dumb and the

evidence on record also found her with partial abnormality,

the conviction under Section 376(2)(l) of IPC cannot be

denied. Similarly, as the rape is committed by the appellants

one after another, the offence under Section 376-D of IPC,

i.e, gang rape cannot be denied. Thus, both the offences

have been well-proved by the prosecution. Moreover, the

evidence of P.W.11 shows that P.W.3 has sustained injury on

her person and P.W.3 has also stated that she was assaulted

by the appellants during course of her resistance to the rape.

So, the offence under Section 323 of IPC is also well made
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out. Thus, the conviction recorded against each of the

appellants under above section of law are also well

confirmed.

25. Since the Court should not normally award

punishment below the minimum prescribed and the trial

Court has already passed the minimum sentence against

each of the appellants, the Court do not want to intervene.

26. Hence, the conviction and sentence as recorded

by the learned trial Court is hereby confirmed as the Court

do not find any reason to interfere with the judgment of

conviction and sentence passed by the learned trial Court.

27. It is revealed from the judgment of the learned

trial Court that fine amount realized from the appellants

would be paid to the victim. Section 357-B of Cr.P.C. was

incorporated in the text book on 3.2.2013, which states that

compensation payable by the State Government under

Section 357-A of Cr.P.C., shall be in addition to the payment

of fine to the victim for the offence committed under Section

376-D of the IPC. So, in addition to the payment of the fine

amount, this Court direct the State Government to pay

compensation of Rs.1,00,000/-(Rupees one lakh) to the
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victim for the loss or injuries she had suffered due to offence

committed under Section 376-D of IPC.

In the result, the Jail Criminal Appeal is

dismissed.

L.C.R. be remitted back immediately.

A copy of the judgment be sent to the State

Legal Services Authority to do the needful.

…………………………….

Dr. D.P. Choudhury, J

Orissa High Court, Cuttack
Dated the 21st November, 2017/ JM
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