Siba Prasad Mohanty Vs. State of Orissa - Court Judgment

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criminal - rape - unreliable evidences - benefit of doubt - section 458, 376, 342 and 505 of indian penal code, 1860 (ipc) - appellant committed rape on prosecutrix - fir lodged - wearing apparel seized and prosecutrix sent for medical examination - after investigation, charge sheet under section 458, 376, 342 and 505 of ipc submitted against appellant - trial court convicted appellant under section 376 of ipc only - hence, present appeal - held, bed sheet spread on bed was not stained with blood or semen - prosecutrix in her evidence stated that appellant opened tati door made of palm leaves and bamboo and entered inside her house, though in fir it is alleged that appellant broke open entrance door of house - bamboo tati as well as chimini have not been seized - prosecutrix expressed before a that she would commit suicide when she was asked to wait till arrival of her husband which she has not stated before investigating officer - medical officer did not find any injury on any part of body of appellant - chances of falsely implicating appellant cannot be ruled out - statement of prosecutrix is found to be incredible and reliance cannot be placed on her - accordingly, impugned order and judgment of trial court set aside - appeal allowed and appellant acquitted - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1 and 3 have admitted in clear terms that they as well as p. 3 being tainted with interestedness, as well as the statement of p. there was also no recent injury and she did not complain of any pain or tenderness. 9. it is well settled in law that conviction can be based on the sole testimony of the prosecutrix if her evidence does not suffer from infirmities or is not improbable and is found to be reliable and that corroboration is not necessary unless there are compelling reasons for seeking corrobration and that corroboration is not a required rule and may be dispensed with whenever the court is satisfied that it is safe to do so and that the rule is not that corroboration is essential before there can be a conviction, but there is necessity of corroboration as a matter of prudence. it is also well settled in law that absence of injury on the private part of the victim or stains of semen or spermatozoa is of no consequence and cannot negative the evidence of rape. it is also well settled in law that while the medical evidence is to the effect that there are no signs of recent intercourse or injury on the girl's private part and where it is clear that the prosecutrix is not a reliable witness or is a willing party to the sexual intercourse, it would not be safe to convict the accused on her uncorroborated testimony. the bamboo tati as well as the chimini have not been seized by the i, o. hence it would not be safe to convict the accused on the uncorroborated testimony of the prosecutrix (p. 5). the finding of the trial court that the prosecutrix was a truthful and reliable witness, is, erroneous and cannot be sustained.p.k. patra, j. 1. the appellant has challenged the judgment dated 15-4-1998 passed by shri k. b. swain, additional sessions judge, balasore in s. t. no. 9/74 of 1997 convicting him under section 376 of the ind ian penal code (for short 'i.p.c.') and sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of rs. 10,000,00 in default, to undergo rigorous imprisonment for a further period of one year.2. briefly stated, prosecution case is as follows : the prosecutrix (p. w. 5) had slept in her house with her daughter aged about three years in village karanja under baliapal police station in the district of balasore and her husband (p. w. 6) had been to another village to earn his livelihood. it is alleged that on 6-2-1996 at about 2 a. m. the appellant (hereinafter referred to as 'the accused') knocked at her door and when she did not open the door, he forced his entry into the house by breaking open the bamboo tati with a dagger in his hand and when p.w. 5 tried to raise hulla, the accused threatened her pointing the dagger at the neck of the child and forced her to lie down on the bed silently and committed rape on her. after departure of the accused from her house, p. w. 5 reported the incident to p. ws. 1, 3 and 4 and she was advised to stay in the house of her parents till return of her husband. in the morning p. w, 1 went to call p. w. 6, the husband of p. w. 5, and after his arrival the occurrence was narrated to him. on 8-2-1996 p.w. 5 accompanied by p. w. 6 went to baliapal p. s and lodged the written report (ext. 3) before the o.i.c. of the said p.s. (p.w. 10) who treated the same as f.i.r., registered the case and took up investigation. in course of investigation he examined witnesses, seized the wearing apparels of p. w. 5 and sent her for medical examination. he also sent the wearing apparels of the victim for chemical examination. on his transfer from the station p. w. 10 husband over charge of investigation to an s.i. namely, b. satpathy, who in his turn handed over charge of investigation to p.w 8 on 23-8-1996. p.w. 8 arrested the accused, sent him for medical examination on2-1-8-1996 and forwarded him tocourt in custody and after completion of investigation submitted charge-sheet under sections 458/ 376/342/505, i.p.c. against the accused who stood his trial after being-charged under the aforesaid sections. but the learned addl. sessions judge has reflected in the impugned judgment that the accused was charged under section 376, i.p.c. and finding him guilty of the said charge, convicted him, without mentioning a'bout the other charges.3. the defence plea is one of denial and false implication due to support of the accused for one ramahari patra who had initiated action against p. ws. 6, 1, 2 and others for their eviction from the houses unauthorisedly constructed by them on the ridge of the tank belonging to him.4 mr. mohapatra, learned counsel for the appellant, and mr. pradhan, learned addl. standing counsel appearing for the state, were heard at length. while mr. mohapatra contended that the impugned judgment convicting the accused of the charge cannot be sustained because of improper appreciation of evidence on record, the learned addl. standing counsel supported the impugned judgment.5. prosecution has examined ten p. ws. in all to bring home the charge against the accused, of whom p. w. 5 is the prosecutrix and p. w. 6 is her husband. p. ws. 1, 3 and 4 are post-occurrence witnesses to whom p.w. 5 narrated the occurrence. p. w. 2 is a constable who was a witness to seizure of one postcard at the police station on production by p. w. 1. p. w. 7 is the medical officer who medically examined the accused and submitted his report-ext. 4. p. w. 9 is the lady assistant surgeon who medically examined the victim (p.w. 5) and submitted her report-ext. 5. p. ws. 8 and 10 are the two investigating officer.6. relying on the statement of the prosecutrix (p w. 5) and holding that she has been corroborated by p ws, 1, 3 and 4 as also the medical evidence on record, the learned addl sessions judge found the accused guilty of the charge and convicted him, rejecting the defence plea of false implication. the contention of the learned counsel for the accused that there wasimproper appreciation of evidence by the trial court, requites careful consideration.7. as pet the f. i. r. (ext. 3), the accused forced his entry into the house by breaking open the bamboo tati, but the prosecutrix (p.w. 5) has stated before the court that, the accused entered inside the house by opening the tati and has not stated that the bamboo tati was broken. had it been broken, the i. o. would have seized the same. but there is no seizure of that bamboo tati, p ws. 1 and 3 have admitted in clear terms that they as well as p. w. 6 and others have c9nstructed houses on the ridge of the tank belonging to ramahari patra who has initiated a criminal case and a proceeding under section 107, cr. p. c.. against them besides filing a civil suit for their eviction. p. w. 1 has further admitted that after the occurrence he became the god father of the prosecutrix (p.w. 5). it is there in the evidence that one basanti jena, w/o. bansidhar jena has filed a case against ramabari patra alleging rape on her. it has been suggested to the p. ws. that the present case against the accused has been foisted because the accused was a supporter of said ramahari patra. the interestedness of p. w. 1 to falsely implicate the accused is manifest from his-statement. he has stated to have gone to village vellora to call p. w. 6 ; whereas p. w. 6 has stated that he had been to village rajghat to earn his livelihood. further p. w. 1 has stated that the occurrence waa narrated to p. w. 6 after his arrival in his house which he has not stated before the i. o. (p. w. 10). p. w. 1 has admitted to have married two wives and he voluntarily produced an anonymous postcard in which he was threatened for bis driving out the first wife and marrying a second wife and the said postcard has been seized under the seizure-list (ext. 1). p. w. 1 has stated that the tati of the house was half broken and that on the next day a meeting of the villagers had been convened where laxman, brother of the accused, requested for reconciliation of the matter although the accused did not attend that meeting and that thereafter p. w. 6 was informed. but p. ws. 3 and 4 have not stated about request of laxman for reconciliation of the matter and p, w. 6 has stated that after hisarrival in village, a gentleman of the village called the accused through one rama mohanty, but the accused did not come, for which the said gentleman asked him to take assistance of law and hence on the next day he went to the police station with p. w. 5 to report the occurrence. thus the statement of p. w. 1 being tainted with interestedness and bristling with infirmities is found to be incredible and hence reliance cannot be placed on him. so also the statement of p. w. 3 being tainted with interestedness, as well as the statement of p. w. 4 who is the wife of the elder brother of p. w. 6 are found to be incredible and reliance cannot be placed on them. though it is the prosecution case that p.w. 5 informed p.ws. 1, 3 and 4 about the occurrence immediately after the occurrence, none of them has stated to have seen the accused departing from the house of p. w. 5 or to have chased him or to have called him from his house. though it is stated by p. w. 3 that one rama mohanty and after him, laxman mohanty went to call the accused from his residence, they have not been examined in this case. for the above reasons, the finding of the trial court that the statement of the prosecutrix (p. w. 5) has been corroborated by p. ws. 1, 3 and 4 is found to be erroneous, and unsustainable.8. the lady assistant surgeon (p. w. 9) who examined the victim (p. w. 5) and submitted her report (ext. 5) found no internal injury or any nail mark or scratch mark over any part of the body of the victim and there was no staining, mudding or foreign substance on her clothings. there was also no recent injury and she did not complain of any pain or tenderness. the vaginal swab of the victim was collected and was examined by the pathologist whose report (ext. 6) reveals that there was no dead or living spermatozoa. ext. 8 is the ossification test report which reveals that the age of the victim was within nineteen to twenty years. thus the medical evidence on record does not support the case of the prosecution and hence the finding of the trial court that the statement of the prosecutrix (p.w. 5) finds corroboration from the medical evidence on record is erroneous. the wearing apparels of the victim, i.e a saree (m.o.i), a blouse (m. o. ii) and a saya (m. o. iii) were seized and sent forchemical examination, but no stain of blood or semen was found on m. os. i and til; whereas only stain of semen was found on m. o. ii as per the report (ext. 10) of the scienti6c officer, district forensic science laboratory, balasore. but the serolo-gist of the state forensic science laboratory, rasulgarh did not find any semen stain on m. os. i, ii and iii as per his report dated 6-6-1996 (ext. a). thus the seizure of the wearing apparels of the victim is also of no help to the prosecution. in the above circumstances, the uncorroborated sole testimony of the prosecutrix (p. w. 5) requires careful scrutiny before placing reliance on her to base a conviction of the accused.9. it is well settled in law that conviction can be based on the sole testimony of the prosecutrix if her evidence does not suffer from infirmities or is not improbable and is found to be reliable and that corroboration is not necessary unless there are compelling reasons for seeking corrobration and that corroboration is not a required rule and may be dispensed with whenever the court is satisfied that it is safe to do so and that the rule is not that corroboration is essential before there can be a conviction, but there is necessity of corroboration as a matter of prudence. it is also well settled in law that absence of injury on the private part of the victim or stains of semen or spermatozoa is of no consequence and cannot negative the evidence of rape. it is also well settled in law that while the medical evidence is to the effect that there are no signs of recent intercourse or injury on the girl's private part and where it is clear that the prosecutrix is not a reliable witness or is a willing party to the sexual intercourse, it would not be safe to convict the accused on her uncorroborated testimony.10. keeping in view the aforesaid principles of law, it is to be considered whether the conviction of the accused in the present case can be sustained or not. at the time of the alleged occurrence the prosecutrix (p. w. 5) was a married woman having a child aged about four years and as such she was habituated to sexual intercourse. her daughter aged about four years was sleeping on bed with her in the only room of her residence whenthe accused allegedly committed rape on her on the same bed which appears to be impossible. the bedsheet spread on that bed was not stained with blood ot semen as is evident from the statement of p. w. 5. as stated earlier, p. w. 5 has stated that the accused opened the tati door made of palm leaves and bamboo and entered inside her house, though in the f. i. r. (ext. 3) it is alleged that he broke open the entrance door of the house. in her statement in cross-examination, p. w, 5 has stated that the accused laid her down on the bed and committed rape and that,the accused had gagged her mouth with his right hand while pressing her down holding her hands with his left hand, which does not appear to be probable. she has also stated that she did not inflict any injury on the accused by biting or with her nails due to fear. she has also not tried to struggle to rescue herself from the accused. if her residence consisted of only one room and if the door was made of palm leaves and bamboo, seeing the accused in the light of a small lamp (chimini) burning inside the room, she could have easily pushed the accused out of the room and escaped, raising hulla, to the nearby house of p. w. 4 which is stated to be only ten cubits away from her house. the bamboo tati as well as the chimini have not been seized by the i, o., p. w. 5 has gone to the extent of stating that she expressed before the gentlemen that she would commit suicide when she was asked to wait till the arrival of her husband which she has not stated before the i. o- (p. w. 10). the medical officer (p. w. 7) who medically examined the accused and submitted the report (ext. 4) did not find any injury on any part of the body of the accused. in view of the infirmities and improbabilities found in the statement of the prosecutrix (p. w. 5), coupled with the admitted hostility between ramahari patra, owner of the tank, on one side and p. ws, 1, 3, 6 and others on the other side who had unauthorisedly constructed houses on the ridge of the said tank, would lead to the inevitable conclusion that chances of falsely implicating the accused cannot be ruled out and as such the statement of the prosecutrix (p. w, 5) is found to be incredible and reliance cannot be placed on her. if at all it is believed for the sake of argumentthat the accused had sexual intercourse with the prosecutrix, the inescapable conclusion would be that the prosecutrix was a consenting party to the same. hence it would not be safe to convict the accused on the uncorroborated testimony of the prosecutrix (p.w. 5). the finding of the trial court that the prosecutrix was a truthful and reliable witness, is, erroneous and cannot be sustained. hence the conviction of the accused on the said gnding, is, unsustainable and is liable to be set aside. in the premises, the accused would be, entitled to an acquittal and the impugned judgment is liable to be set aside.11. in the result, the criminal appeal is allowed. the judgment dated 15-4-1998 passed by the learned additional sessions judge, balasore in s. t. no. 9/74 of 1997 is set aside and the appellant being found not guilty, is, acquitted of the charge. he be set at liberty forthwith if his detention is not required inconnection with any other case.12. crl. appeal allowed.