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Ruhiya Murmu vs State Of Orissa on 26 March, 2019

HIGH COURT OF ORISSA: CUTTACK.
JCRLA No.94 of 2010

From the judgment and order dtd.30.09.2010 passed by Shri P.C.
Mishra, LL.B., Adhoc Addl. Sessions Judge (FTC), Baripada in S.T. Case
No.67/112 of 2010-07.
———

Ruhiya Murmu ………. Appellant.

– Versus-
State of Orissa ………. Respondent.

Counsel for Appellant :Mr. Satrughana Dash (A), Amicus Curiae.

Counsel for Respondent : Addl. Standing Counsel.

PRESENT:

THE HONOURABLE DR. JUSTICE A. K. MISHRA.

—————————————————————————————
Date of hearing : 15.03.2019 :: Date of Judgment : 26.03.2019

—————————————————————————————

Dr. A. K. Mishra, J. The conviction of appellant – accused U/s.376 read with

Section 511 of the Indian Penal Code and sentence thereof to undergo 7

(seven) years rigorous imprisonment and fine of Rs.1000/-, in default to

undergo rigorous imprisonment for six months by judgment

dtd.30.09.2010 in S.T. Case No.67/112 of 2010-07 is assailed in this

appeal U/s.383 Cr.P.C.

2. It is stated by learned Amicus Curiae Mr. S. Dash and also

by learned Addl. Standing Counsel that accused has already undergone

the sentence.

2

3. Put briefly, the case of the prosecution is that, on 20.3.2006

the victim, a ten years old girl had been to one of his relation’s house

with her parents to see the folk dance in the marriage ceremony of the

daughter of Lepa Tudu. At 5 P.M. she returned alone to take care of

goats before dusk. On the way, the accused, an youth of 28 years old,

lifted her to river bank, tearing her wearing apparels, attempted to

commit rape. The victim screamed. Two persons came to her rescue.

Accused fled away. Village meeting was convened twice. Accused did not

turn up. On 23.4.2006 F.I.R. (Ext.4) was lodged by the father of the

victim. In course of investigation, the wearing apparels, i.e. saree and

blouse, were seized vide M.O.I and M.O.II. The under wear and napkin

of accused were also seized vide M.O.III and M.O.IV. Accused was

medically examined by the doctor (P.W.6) and found to be capable of

sexual intercourse. Injuries on left shoulder and left elbow were found.

The victim declined to be examined medically, as is evident from the

report (Ext.2) of the doctor (P.W.5). After completion of investigation,

charge-sheet was submitted. Cognizance was taken U/s.376, 506(II),

read with Section 511 of the Indian Penal Code. The case was committed

to the court of Sessions. Trial ensued.

4. In support of its case prosecution examined the victim as

P.W.2, her parents as P.W.1 and 4, one seizure witness and two medical

officers and investigating officer as P.W.3, P.W.5, P.W.6 and P.W.7.
3

Defence did not choose to examine anybody and took the plea of denial

simplicitor.

5. Learned trial court considered the evidence and found the

victim reliable and credible. Her refusal for medical examination did not

break the ice as F.I.R. was lodged after two days of which delay was due

to village meeting to which the accused did not respond. Minor

discrepancies were ignored. While appreciating the evidence, learned

trial court observed on the method of proof in paragraph 9 of the

judgment which, in my considered opinion, at the outset, was not

desirable.

Learned trial court acquitted the accused of the charge

U/s.506 of the I.P.C. but found him guilty U/s.376, read with Section

511 of the I.P.C. and sentenced in the manner noted above.

6. Learned Amicus Curiae Mr. S. Dash vehemently urged the

following points:-

(i) The F.I.R. was lodged on 23.4.2006 as against the occurrence of

20.4.2006 and the explanation that it was due to village meeting

to which accused did not turn up, is not justified.

(ii) The victim as P.W.2 has stated that three witnesses, namely, Basi

Murmu, Madan Murmu and Badal Murmu came to the spot
4

hearing her shout but none of them was examined and such non-

examination is nothing but to suppress the truth.

(iii) The victim refused to be examined medically without assigning

any reason. Such conduct was not in consonance with ordinary

human nature alleging attempt to rape.

6-(a). Learned Amicus Curiae relied upon a decision in the case of

State of Karnataka Vrs. Mapilla P.P. Soopi reported in AIR 2004 SC

83 in support of his contention that the testimony of victim should be

viewed with suspicion in absence of medical examination.

In the aforesaid decision the Hon’ble Apex Court analyzed

the evidence for offence U/s.376 of the Indian Penal Code and two

witnesses who were neighbours of the victim were found to have not

supported the prosecution case. The original medical report was not

produced. In that context the Hon’ble Supreme Court found the accused

not guilty. But the facts and circumstances of the present case are

completely different.

7. In the case at hand, the victim P.W.2 narrated the story

which is sufficient to attract offence U/s.376 read with Section 511 of

the Indian penal Code. She has stated that while she was coming alone

to her house, on the way near the chhaka, the accused came from her

back side, embraced her and lifted her towards the river. By the side of
5

river, the accused, put her on the ground, then he tore her blouse and

saree then squeezed her breasts and then took attempt to commit

rape on her. Then she shouted.

In her cross-examination she has admitted that the place

where the accused put her on the ground was a grassy field. She raised

protest since the accused put her on the ground. She also rubbed on the

face of accused. He sustained scratch mark on the face. The accused

gave teeth bits on her face. She also sustained bleeding injury on her

breasts.

The area of the spot, the victim’s house and the house

where the marriage ceremony was going on was within a radius of half a

kilometer. The victim had disclosed the incident before her parents who

are P.W.1 and P.W.4. The living style of the parties is more attached to

their customs and tradition. It was Raja festival time. The dance

programme in a marriage ceremony was their tradition. The wearing of

saree and blouse on that ceremony by a 10 years old victim cannot be

considered as unusual. The victim and her parents have stated that

village meeting was convened for two days at the instance of the villagers

but the accused did not turn up. The villagers then advised him to go to

police.

7-(a). Nothing was proved as to why the victim and her parents

were against the accused to frame him in a false case. In absence of any
6

such material, it is difficult to disbelieve the testimony of victim and her

parents because of certain minor discrepancies. The same

discrepancies assume no importance when the illiterate tradition bound

rustic people were examined in the court after three years of incident.

The F.I.R. was lodged after two days. In the interregnum, the villagers

were holding meetings. Accused did not respond them. The cause of

delay is nothing but reasonable because custom, tradition and societal

value are essence of their life.

7-(b). It is not a case of rape but a case of an attempt to commit

rape. So after three days of incident if the minor girl declined to be

examined medically, no exception can be taken to that conduct. She is

wholly reliable witness, her testimony is truthful and can be relied upon.

7-(c). In the decision reported in (1997) 7 SCC 677, Madan Lal

Vrs. State of J K their lordships have held that “the difference

between preparation and an attempt to commit an offence consists

chiefly in the greater degree of determination and what is necessary to

prove for an offence of an attempt to commit rape has been committed is

that the accused has gone beyond the stage of preparation. If an

accused strips a girl naked and then making her flat on the ground

undresses himself and then forcibly rubs his erected penis on the

private part of the girl but fails to penetrate the same into vagina and on

such rubbing ejaculates himself then it is difficult for us to hold that it
7

was a case of merely assault under Section 354 I.P.C. and not an

attempt to commit rape under Section 376 read with Section 511

I.P.C.”

7-(d). In the case of Sham Singh Vrs. The State of Haryana

reported in 2018 SCC online SC 1042 their Lordships have held that

“Courts shoulder a great responsibility while trying an accused on

charges of rape. They must deal with such cases with utmost sensitivity.

Courts should examine broader probabilities of a case and not get

swayed by minor contradictions or insignificant discrepancies in

statement of prosecutrix, which are not of a fatal nature, to throw out

an otherwise reliable prosecution case. If evidence of prosecutrix

inspires confidence, it must be relied upon without seeking

corroboration of her statement in material particulars. If for some

reason, court finds it difficult to place implicit reliance on her testimony,

it may look for evidence which may lend assurance to her testimony,

short of corroboration required in case of an accomplice.”

In that case, their Lordships, relying on the case of State of

Punjab Vrs. Gurmit Singh, (1996) 2 SCC 384 have held that Courts

must, while evaluating evidence, remain alive to the fact that in a case of

rape, no self-respecting woman would come forward in a court just to

make a humiliating statement against her honour such as is involved in

commission of rape on her. In cases involving sexual molestation,
8

supposed considerations which have no material effect on veracity of

prosecution case or even discrepancies in statement of a prosecutrix

should not, unless discrepancies are such which are of fatal nature, be

allowed to throw out an otherwise reliable prosecution case. Inherent

bashfulness of females and the tendency to conceal outrage of sexual

aggression are factors which the courts should not overlook.”

8. On careful reading of the testimony of victim – P.W.2 in the

backdrop of the situations and surroundings, I do not find any reason to

disbelieve her. The explanation for delay in lodging the F.I.R. is

acceptable. The overt act by accused as narrated by the victim attracts

the offence U/s.376, read with Section 511 of the Indian Penal Code.

The conviction of the accused – appellant is based upon the legal

evidence and no fault can be found to that. The sentence awarded is

proportionate to the offence committed. Hence no interference in this

appeal is warranted.

Accordingly the JCRLA stands dismissed.

L.C.R. be returned.

…………………….

Dr. A. K. Mishra, J.

Orissa High Court, Cuttack,
Dated the 26TH March , 2019/mkp

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