IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL No. 263 Of 1991
An appeal under section 374(2) of the Code of Criminal
Procedure from the judgment dated 30.09.1991 passed by the
Addl. Sessions Judge, Sambalpur in Sessions Trial No.47/21 of
1991.
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Dina @ Dinabandhu
Pradhan and Another ……… Appellants
-Versus-
State of Orissa ……… Respondent
For Appellants: – Mr. Bijaya Kumar Ragada
For Respondent: – Mr. Priyabrata Tripathy
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 04.01.2018
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S. K. SAHOO, J. The appellants Dina @ Dinabandhu Pradhan and Kapi
@ Kapila Pradhan faced trial in the Court learned Addl. Sessions
Judge, Sambalpur in Sessions Trial No. 47/21 of 1991 for offence
punishable under sections 376/34 of the Indian Penal Code on
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the accusation that on 04.10.1990 at about 12 noon at
Ganjermal forest, they committed rape on the victim (P.W.1) in
furtherance of their common intention.
The learned trial Court found the appellants guilty
under section 354 of the Indian Penal Code and accordingly
convicted thereunder imposing sentence on each of them to
suffer rigorous imprisonment for a period of two years.
2. The prosecution case, in short, is that on 04.10.1990
the victim had been to tend cattle towards the river side where
both the appellants were also tending cattle at a nearby place. At
about 12 noon, the appellant Dinabandhu came near the victim
and told her to allow him to enjoy with her for some time to
which the victim refused. Then the appellant Dinabandhu
dragged the victim by holding her hand to a low lying land by the
side of the river. The victim protested and struggled to escape
but the appellant Dinabandhu fouled her as a result of which she
fell down on the ground. When the victim raised alarm, the
appellant Kapila caught hold of her hand and told her not to
shout and shut her mouth by means of Saree which the victim
was wearing. The appellant Dinabandhu first committed rape on
the victim and then the appellant Kapila also committed rape on
the victim. After committing rape, both the appellants left the
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spot and the victim returned back to her home and narrated the
incident before her mother (P.W.2). The victim and her mother
approached the Ward member of the village namely Biranchi
Pradhan (P.W.3) and told him about the incident. A meeting was
convened in the village and the village gentlemen attended the
meeting but since most of the villagers had consumed liquor, the
meeting could not be held on that day. After a few days, the
meeting was again held but the appellants did not attend the
meeting. The gentlemen imposed a fine of Rs.300/- on the
appellants. The appellants paid the fine amount to the gentlemen
but they did not give such amount to the victim for which on
27.10.1990 the victim went to Katarbaga police station and orally
reported the matter before the officer in charge of the police
station namely Abhiram Kar (P.W.7) which was reduced to
writing, on the basis of which Katarbaga P.S. Case No. 94 of
1990 was registered under sections 376/34 of the Indian Penal
Code.
P.W.7 took up investigation of the case. He examined
the victim and her mother and recorded their statements, visited
the spot and seized the broken pieces of bangles under seizure
list Ext.1/2. He examined the other witnesses, arrested the
appellants and forwarded them to Court on 29.10.1990. The
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victim girl was sent for medical examination. The Investigating
Officer made certain query to the Medical Officer, Sambalpur. He
received the medical examination report of the victim as well as
of the appellants. On completion of investigation, charge sheet
was submitted on 23.01.1991 under sections 376/34 IPC.
3. The defence plea of the appellant Kapi @ Kapila
Pradhan is that there was a marriage proposal between him and
the victim and since he did not agree to marry the victim
suspecting her character, a false case has been foisted against
him.
The defence plea of appellant Dina @Dinabandhu
Pradhan is one of denial.
4. After filing of charge sheet, the case was committed
to the Court of Session for trial after observing due committal
procedure and it was transferred to the learned trial Court where
charge under sections 376/34 of the Indian Penal Code was
framed on 09.05.1991. Since the appellants refuted the charge,
pleaded not guilty and claimed to be tried, the sessions trial
procedure was resorted to prosecute them and establish their
guilt.
5. In order to prove its case, the prosecution examined
seven witnesses.
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P.W.1 is the victim. She is the informant in the case.
P.W.2 Gharamani Bag is the mother of the victim and
she stated about the disclosure made by the victim on the date
of occurrence relating to commission of rape on her by both the
appellants and also about the meeting held in that connection.
P.W.3 Biranchi Pradhan and P.W.4 Sambhulal
Pradhan did not support the prosecution case for which they
were declared hostile.
P.W.5 Biranchi Narayan Padhi was the Medical
Officer, Circle Jail, Sambalpur who examined both the appellants
and found them capable of committing sexual intercourse but did
not find any mark of injury on their private parts. He proved the
medical examination reports vide Exts. 2 3.
P.W.6 Dr. Geetanjali Rath was the lady Asst.
Surgeon, Sambalpur Headquarters Hospital and she examined
the victim and proved her report Ext.4. She also answered to the
query made by the Investigating Officer and the query report has
been marked as Ext.7
P.W.7 Abhiram Kar was the officer in charge of
Katarabagh Police Station who is the Investigating Officer.
The prosecution exhibited ten documents. Ext.1/2 is
the seizure list, Exts. 2 3 are the medical examination reports
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of the appellants, Ext.4 is the medical examination report of the
victim, Ext.5 is the report of the pathologist, Ext.6 is the report
of the radiologist, Ext.7 is the query report of P.W.6, Ext.8 is the
first information report, Ext.9 is the statement of P.W.3 before
the Investigating Officer and Ext.10 is the statement of P.W.4
before the Investigating Officer.
The prosecution also proved the broken bangles as
M.O.I.
6. The learned trial Court after analysing all the
evidence on record has been pleased to hold that since the victim
had stated that she was in a cross legged position at the time of
occurrence and continued to be lying in such position, it ruled out
the possibility of the victim being raped. It was further held that
the age of the victim on the date of occurrence was more than
18 years and the conduct of the victim in coming to her house
and narrating the incident before her mother rules out the
possibility of consent of the victim for the occurrence. It was
further held that the absence of any injury on the person and
private part of the victim cannot be used to discredit her
testimony particularly when she was examined after a long lapse
of time. The learned trial Court further held that the delay in
lodging the first information report has been properly explained.
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7. Mr. Bijaya Kumar Ragada, learned counsel appearing
for the appellants contended that the occurrence in question took
place on 04.10.1990 and the first information report was lodged
on 27.10.1990 which was more than three weeks after the
alleged occurrence and delay in lodging the first information
report has not been satisfactorily explained and therefore, the
possibility of an exaggerated or concocted story being put forth
by the prosecution cannot be ruled out. It is further contended
that when the learned trial Court has disbelieved the commission
of the major offence i.e. under section 376 of the Indian Penal
Code, the conviction of the appellants under section 354 of the
Indian Penal Code basing on the self same evidence is not
justified. It is further contended that even if this Court upholds
the conviction of the appellants under section 354 of the Indian
Penal Code, since during investigation as well as during pendency
of the appeal, the appellants have remained in custody for a
substantial period, the sentence be reduced to the period already
undergone.
Mr. Priyabrata Tripathy, learned Addl. Standing
Counsel on the other hand supported the impugned judgment
and contended that the delay in lodging the first information
report in a case of this nature is not fatal to the prosecution and
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moreover the victim and her mother have stated as to how they
reported the matter before the Ward member and the meetings
were convened in the village on two occasions and how the fine
amount which was imposed by the gentlemen was not paid to
the victim for which the first information report was lodged and
therefore, the delay, if any, has been satisfactorily explained.
The learned counsel for the State further contended that the
conduct of the appellants at the time of the occurrence clearly
makes out the ingredients of the offence under section 354 of the
Indian Penal Code and the sentence which has been imposed
cannot be said to be excessive in the facts and circumstances of
the case and therefore, no interference is called for.
8. Charge has been framed against the appellants under
sections 376/34 of the Indian Penal Code. When it is the
prosecution case that both the appellants committed rape on the
victim on 04.10.1990 in furtherance of their common intention,
charge should have been framed under section 376(2)(g) of the
Indian Penal Code which deals with ‘gang rape’.
In case of Ashok Kumar -Vrs.- State of Haryana
reported in A.I.R. 2003 S.C. 777, it is held as follows:-
8. Charge against the appellant is under Section
376(2)(g) IPC. In order to establish an offence
under Section 376(2)(g) IPC, read with
9Explanation I thereto, the prosecution must
adduce evidence to indicate that more than one
accused had acted in concert and in such an
event, if rape had been committed by even one,
all the accused will be guilty irrespective of the
fact that she had been raped by one or more of
them and it is not necessary for the prosecution
to adduce evidence of a completed act of rape
by each one of the accused. In other words, this
provision embodies a principle of joint liability
and the essence of that liability is the existence
of common intention that common intention
presupposes prior concert which may be
determined from the conduct of offenders
revealed during the course of action and it could
arise and be formed suddenly, but, there must
be meeting of minds. It is not enough to have
the same intention independently of each of the
offer. In such cases, there must be criminal
sharing marking out a certain measure of
jointness in the commission of offence.”
In case of Hanuman Prasad and Ors. -Vrs.- State
of Rajasthan reported in (2009) 42 Orissa Criminal
Reports 284, it is held as follows:-
“7. The important expression to attract Section
376(2)(g) is `common intention’. The essence of
the liability in terms of Section 376(2) is the
10existence of common intention. In animating the
accused to do the criminal act in furtherance of
such intention, the principles of Section 34 IPC
have clear application. In order to bring in the
concept of common intention, it is to be
established that there was simultaneously
consensus of the minds of the persons
participating in the act to bring about a
particular result. Common intention is not the
same or similar intention. It presupposes a prior
meeting and pre-arranged plan. In other words,
there must be a prior meeting of minds. It is not
necessary that pre-concert in the sense of a
distinct previous plan is necessary to be proved.
The common intention to bring about a
particular result may well develop on the spot as
between a number of persons which has to be
gauzed on the facts and circumstances of each
case.”
Section 376(1) of the Indian Penal Code prescribes
punishment for rape which shall not be less than seven years but
which may extend to ten years or which may be for life and shall
also be liable to fine. Section 376(2) of the Indian Penal Code on
the other hand makes certain categories of serious cases of rape
as enumerated therein attract more severe punishment. One of
them relates to ‘gang rape’. The minimum punishment prescribed
for such offence is ten years which may be for life and the
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accused shall also be liable to fine. This is how the words “except
in the cases provided for by sub-section (2)” occur in section
376(1) of the Indian Penal Code. The Explanation 1 to section
376(2) of I.P.C. indicates that when one or more persons act in
furtherance of their common intention to rape a woman, each
person of the group shall be deemed to have committed ‘gang
rape’. By operation of the deeming provision, a person who has
not actually committed rape is deemed to have committed rape
even if only one member of the group in furtherance of the
common intention has committed rape. Therefore, in a case of
gang rape, the proof of completed act of rape by each of the
accused on the victim is not required. Once it is established that
accused persons who are two or more in number had acted in
concert and thereafter, the victim was actually raped by one of
them then all of them can be prosecuted and even held guilty for
‘gang rape’. Therefore, charge should have been appropriately
framed under section 376(2)(g) of the Indian Penal Code.
9. Coming to the evidence of the victim, she has
narrated the incident in detail. She has stated in her chief
examination that the appellant Dinabandhu dragged her by
holding her hand and took her to a low lying land by the side of
the river and when she protested and struggled to escape,
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appellant Dinabandhu fouled her for which she fell down and
then she raised alarm. Then the appellant Kapila caught hold of
her hand and asked her not to shout and shut her mouth by the
edge of her Saree. She has further stated that the appellant
Dinabandhu opened his half pant and pulled her saree and saya
up to her waist and then committed sexual intercourse with her
and thereafter, the appellant Kapila also committed sexual
intercourse with her and at that time the appellant Dinabandhu
was holding her head and gagging her mouth for which she could
not raise an alarm. In the cross-examination, the victim has
stated that when the appellant Dinabandhu came towards her
while she was tending cattle, she did not suspect his movement.
She further stated that the appellant Dinabandhu physically lifted
her by keeping her on his shoulder and then threw her at the
spot where she was ravished. She further stated that she made
an attempt to runaway but the appellant Dinabandhu pounced
upon her and at that point of time, she struggled to escape
herself but the appellant Dinabandhu opened his pant and
appellant Kapila caught hold of her hands. She has further stated
that appellant Kapila caught hold of her right hand by his right
hand and her left hand by his left hand but neither of the
appellants caught hold of her legs and that she was struggling by
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her legs. The victim has further stated in the cross-examination
that when appellant Dinabandhu opened his pant, she could
know that he would have sexual intercourse with her, so at that
time she crossed both of her legs. She further stated that when
appellant Dinabandhu came to penetrate his penis into her
vagina, she tightened her legs and stifled her vagina. She further
stated that till both the appellants finished their sexual
intercourse with her, she was lying in a crossed legged position.
She further stated that neither the appellant Kapila nor the
appellant Dinabandhu squeezed her breast and none of them
touched her breast nor gave kisses on her cheek nor snatched
her blouse. The learned trial Court held that the position in which
the victim was lying at the time of occurrence rules out the
possibility of her being raped and accordingly, the offence of rape
was disbelieved. It appears from the evidence that the victim
was aged about twenty years at the time of occurrence and even
though according to her evidence, her hands were caught hold of
by one of the accused while the other was committing rape on
her but it is apparent that none of the accused was holding her
legs and in order to prevent sexual intercourse by the appellants,
she not only crossed both her legs but also tightened her legs
and stifled her vagina and she was in such a position till end. She
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has not stated that any of the appellants tried to separate her
legs to commit sexual intercourse.
The victim has stated that after the appellant Kapila
had sexual intercourse with her, he cleaned his semen by her
saya from her private part as well as from his private part and
the semen fell on her saree and saya. The victim has further
stated that he showed her saree, saya and kacha to her mother
and so also to the Ward member and she kept those saree, saya
and kacha in her house to show it to the police, if necessary. The
wearing apparels of the victim girl were neither seized nor sent
for chemical analysis.
10. So far as the delay in lodging the first information
report is concerned, it appears that immediately after the
occurrence, the victim came to her house and narrated the
incident before her mother and both of them went to the Ward
member and disclosed about the occurrence. The ward member
who has been examined as P.W.3 has not supported the
prosecution case. The victim and her mother have stated that a
meeting was convened in the village on the date of occurrence
but no decision could be taken and four days thereafter, another
meeting was held and even though the appellants did not attend
that meeting but their fathers attended the meeting and the
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panchayat imposed a fine of Rs.300/- on the appellants. It is
further stated by the victim and her mother that the panchayat
members realized the fine amount of Rs.300/- from the
appellants but refused to give that money to the victim and
accordingly, the first information report was lodged. In view of
the nature of accusation and the statements of the victim and
her mother regarding convening of meeting in the village on two
occasions to decide the matter, imposition of fine on the
appellants, non-payment of fine to the victim, I am of the view
that the delay in lodging the first information report has been
satisfactorily explained. Merely because P.W.3 has not supported
the prosecution case, the entire prosecution case cannot be
disbelieved.
11. The doctor who had examined the victim on
06.11.1990 which is a month after the incident has stated that
the hymen of the victim was ruptured and there was an old tear
in her hymen and she found no other injury present in her
private part or other parts of the body. The ossification test was
conducted and the doctor opined that the probable age of the
victim would be above eighteen and below twenty years. The
doctor gave her opinion that the old tear mark which was found
in the hymen of the victim was due to sexual intercourse.
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However in the cross-examination, she has stated that once the
tear in the hymen is healed up, it is not possible to say, the exact
time or as to how many days back there was tear. She further
stated that in absence of dead or alive spermatozoa, it cannot be
said definitely whether there was sexual intercourse or not. The
vaginal swab of the victim was examined and the report vide
Ext.5 indicates that no living or dead spermatozoa was present.
Therefore, not only there is delay in the medical examination of
the victim but also the medical examination report no way helps
the prosecution.
12. Coming to the offence under section 354 of the
Indian Penal Code, there are ample materials available on record
to show that the appellants outraged the modesty of the victim.
The essential ingredients of the offence under section 354 of the
Indian Penal Code are that the assault must be to a woman or
the accused must have used criminal force on the woman and
such assault or criminal force must have been used on the
woman intending thereby to outrage her modesty or having
knowledge that her modesty will be outraged. The culpable
intention of the accused is the crux of the matter and the
reaction of the woman is also relevant. The manner in which the
victim was dragged, lifted, stripped off her clothing and some
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immoral act was committed with her in spite of her protest, even
if the charge under section 376 of the Indian Penal Code is found
to be not proved by the learned trial Court and neither the State
of Odisha nor the victim has challenged the acquittal of the
appellants of such offence but there are sufficient materials on
record against the appellants for commission of offence under
section 354 of the Indian Penal Code.
The learned trial Court has imposed the maximum
punishment prescribed for such offence which is two years. The
appellants were forwarded to Court on 29.10.1990 and they were
released on bail by the learned trial Court on 27.04.1991. During
pendency of the appeal before this Court, non-bailable warrant of
arrest was issued against both the appellants and the learned
trial Court was directed to execute the non-bailable warrant of
arrest, by virtue of which the appellants were taken into custody
on 11.05.2004 and they were released on bail by this Court on
26.06.2004. Therefore, it appears that the appellants have
remained in custody in connection with this case for seven
months and few days. The occurrence in question took place in
the year 1990 and in the meantime more than twenty seven
years have passed. Both the appellants were aged about twenty
years when the crime was committed. Therefore, at this stage, it
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would not be proper to send the appellants again to jail custody
to serve out the remaining period of sentence.
13. In view of the foregoing discussions, while confirming
the order of conviction of the appellants under section 354 Indian
Penal Code, the sentence imposed by the learned trial Court is
reduced to the period already undergone.
With the modification of the sentence, the Criminal
Appeal stands dismissed.
……………………………
S. K. Sahoo, J.
Orissa High Court, Cuttack
The 4th January, 2018/Kabita/Sukanta
