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IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 307 of 1993
(An appeal under Section 374(2) of the Code of Criminal
Procedure, 1973.
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AFR Bada Majhi …… Appellant
-Versus-
State of Orissa …… Respondent
Advocate(s) appeared in this case:
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For Appellant : Mr. B.K. Mishra, Amicus Curiae
For Respondent : Sri S.K. Mishra,
Addl. Standing Counsel
_
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
26 September, 2023
SASHIKANTA MISHRA, J.
The judgment passed by learned Sessions Judge,
Mayurbhanj, Baripada on 28.08.1993 in S.T. Case No. 94
of 1992 is under challenge in the present appeal. The
appeal was originally filed by three persons, namely, Ramei
Majhi, Bada Majhi and Rengta Majhi. Ramei Majhi and
Rengta Majhi having died during pendency of the appeal,
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the case against them has abated and therefore, the appeal
is confined only to Bada Majhi. As per the aforementioned
judgment, the appellant and other accused persons were
convicted for the offences under Sections 451/354/34 of
IPC and sentenced to undergo R.I. for two years on each
count with both sentences directed to run concurrently.
2. Prosecution case, briefly stated, is that on
28.02.1992 at about 4 p.m., the prosecutrix and her
husband and other villagers had congregated at a place
where handia drinking ceremony of the village was going
on. The prosecutrix left the place after sometime and came
home to take some curry. While she was alone in her
house, five persons including the present accused entered,
gagged her mouth, laid her on the ground and co-accused,
Ramei and Birdhan forcefully committed sexual intercourse
with her one after the other, while the other accused
persons held her firmly. One Phula Majhi arrived at the
spot at that time but she was chased away by the accused
persons. She informed Chhotrai Majhi, the husband of the
prosecutrix, who rushed to the spot with Phula but by then
the accused persons had already left the place. The
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prosecutrix narrated the entire incident before her
husband and Phula and on the next day, she went to the
Police Station and lodged a written report. This led to
registration of Rairangpur Rural P.S. Case No. 32(13) dated
28.02.1992 under Sections 448/376(2)(g)/34 of IPC
followed by investigation. Upon completion of investigation,
charge sheet was submitted against five persons including
the present accused.
3. The plea of the accused is of denial and of false
implication on the ground that they had refused to give
more handia to Chhotrai, who then abused them and
fought with Ramai. The prosecutrix and Phula also
assaulted Ramai, due to which some injuries were caused
to Chhotrai and Phula.
4. To prove its case, prosecution examined eight
witnesses, out of whom P.W.-1 is the prosecutrix, P.W.-5 is
the eye-witness- Phula, P.W.-6 is the husband of the
informant, P.W.-8 is the I.O., P.W.-2 is the doctor, who
examined the prosecutrix, P.W.-3 is the doctor, who
examined the accused Ramai and P.W. -4 is the doctor,
who examined accused Birdhan, injured Chhotrai and
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Phula. Prosecution also proved 13 documents and two
material objects from its side. Defence examined four
witnesses.
5. After appreciating the evidence on record
particularly, that of the prosecutrix (P.W.-1), her husband
(P.W.-6) and eye-witness (P.W.-5) as also the medical
evidence, learned Sessions Judge could not persuade
himself to believe the prosecution story as regards rape of
the prosecutrix by the accused persons. However, having
regard to the injuries found on the person of the
prosecutrix, her husband and the eye-witness, learned
Sessions Judge held that the presence of the accused
persons in the house of the prosecutrix and use of physical
force on her is proved and considering all these
circumstances it was held that the accused persons had
outraged the modesty of the prosecutrix. On such findings,
the accused persons were convicted and sentenced as
aforesaid.
6. Heard Mr. B.K. Mishra, learned Amicus Curiae
and Mr. S.K. Mishra, learned Addl. Standing Counsel for
the State.
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7. Learned Amicus Curiae has argued that when
the evidence on record was disbelieved by the trial Court as
regards the allegation of gang rape, the same set of
evidence could not have been relied upon to hold the
accused persons guilty of outraging the victim’s modesty.
This is all the more for the reason that there is clear
evidence of a fight having taken place between the husband
of the victim and P.Ws. 5 and 6 with some of the accused
persons whereby injuries were sustained by both sides.
This, learned Amicus Curiae would argue, is fully
consistent with the defence version and therefore, the
benefit of doubt should have been given to the accused
persons.
8. Mr. S.K. Mishra, learned State Counsel on the
other hand would argue that the evidence clearly reveals
that the accused persons had committed house trespass
and had used physical force on the prosecutrix. This much
is adequate to prove that they had outraged her modesty.
9. Be it noted that in the FIR, the prosecutrix has
given vivid details of the so called incident of gang rape on
her by accused Ramei and Birdhan with the assistance of
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the accused persons. Same is also her sworn testimony in
the Court but then learned Sessions Judge was not
inclined to believe her version when he compared it with
the medical evidence. The State has not challenged such
finding. After scanning the evidence on record, this Court
concurs with the view taken by the trial Court.
10. Thus, the allegation of gang rape being ruled out,
the evidence is to be seen as to how far the offences under
Sections 448 and 354 of IPC are made out. In this regard,
prosecution has heavily relied upon the version of the
prosecutrix (P.W.-1), who stated that she came home to
take some curry and at that time, the accused persons
followed her and asked to give them curry, which she
refused. Thereafter, they entered the house and committed
gang rape. Ordinarily, this evidence would have been
accepted as the same is consistent with the FIR story and
her earlier version before the I.O. but then the defence also
examined four witnesses. It is admitted that handia
drinking ceremony was held on the day of occurrence.
While according to P.W.-1 she left the function to bring
some curry from home, according to the defence version
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the accused persons were serving handia and when the
husband of the prosecutrix asked for more, they refused.
But Chhotrai insisted for more handia and quarreled with
Ramai, both of whom fought. At that time, the prosecutrix
assaulted Ramai with Chappal and Phula also joined them
in the assault. Learned Sessions Judge disbelieved the
allegation of gang rape considering the fact that the
perpetrators, namely, Ramai, Bada as also Misui and
Birdhan are brothers and nephews of the prosecutrix.
Learned Sessions Judge therefore, could not persuade
himself to believe that an elder brother and younger
brother would jointly commit rape on their aunt. If this is
accepted as the reason for discarding the prosecution
evidence in so far as the same is projected to prove the
occurrence of rape, then by logic the very same argument
can be put forth to reject the finding of outraging of
modesty. To reiterate, a person can hardly be expected to
outrage the modesty of his aunt being associated with his
younger brother. Viewed in this background the defence
evidence, which is to be tested on the principle of
preponderance of probability assumes significance and
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rather, lends support to the theory that there was a fight
between the husband of the prosecutrix and accused,
Ramai in which the prosecutrix as well as Phula (P.W.-5)
had also participated. Another significant aspect that needs
mention is that according to P.W.-6, his wife (prosecutrix)
had also sustained injuries because of assault on her by
the accused persons at the end of the handia drinking
ceremony. This, in fact explains the injuries found on the
body of the prosecutrix.
11. Thus, viewed objectively, the prosecution
evidence, particularly that of P.Ws.1, 5 and 6 does not
inspire confidence so as to be relied upon. Learned
Sessions Judge rightly discarded such evidence to
disbelieve the charge of gang rape. This Court is of the
considered view that for the very same reason, the offence
under Section 354 IPC cannot also stand. Omission of the
prosecution to examine any other villager participating in
the handia drinking ceremony appears to be material in the
context of the present case. For all these reasons therefore,
this Court cannot persuade itself to agree with the order of
conviction recorded by learned Sessions Judge.
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12. In the result, the appeal succeeds and is
therefore, allowed. The impugned judgment of conviction
and sentence is hereby set aside. The appellant, Bada
Majhi be discharged of his bail bonds.
13. Before parting, this Court places on record its
appreciation for the able assistance rendered by learned
Amicus Curiae, Mr. B.K. Mishra. His professional fee is
fixed at Rs.10,000/-.
…………………………….
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 26th September, 2023/ A.K. Rana
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 26-Sep-2023 14:20:22
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