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Afr Bada Majhi vs State Of Orissa on 26 September, 2023

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.
—————

AFR Bada Majhi …… Appellant

-Versus-

State of Orissa …… Respondent

Advocate(s) appeared in this case:
_
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

Page 6 of 9
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.

Page 8 of 9

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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