Bapi @ Debadutta Ratnakumar Patra and Gour Chandra Maharana Vs. State of Orissa - Court Judgment

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criminal - benefit of doubt - delay in fir - section 376(2)(g) of indian penal code, 1860(ipc) and section3(2)(v) of the s.c. & s.t. (prevention of atrocities) act, 1989 - appellants prosecuted for offence under sections 376(2)(g) of ipc and section 3(2)(v) of act - trial court acquitted appellants for offence under section 3(2)(v) of act and convicted him for offence under section 376(2)(g) of ipc - against conviction order, present appeal filed by appellant - held, from facts it established that fir was lodged by delay of 5 days - however, victim failed to given any proper reason for delay in lodging fir - reason supplied by trial court in its judgment also does not seems convincing - therefore, delay in lodging fir remains unexplained and is fatal to prosecution case - prosecution has failed to prove its case beyond any reasonable doubt - benefit of doubt given to appellants - therefore, appeals allowed and conviction of appellants set aside - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - he has also argued that the defence evidence has not been properly appreciated by the learned trial court and that the learned trial court failed to appreciate the fact that the victim had ample reason to falsely implicate the appellants. 1 supplies a strong motive for false implication of the accused persons. however, the prosecution has failed to show that the interpolations related to the entry with regard to the accused debadutta. 1 and 2 have not been cross-examined effectively. the victim has stated in her evidence (as well as in the f. his evidence effectively shows that the victim could not have kept the vegetables in his betel shop and accused gaura could not have been involved in her keeping the vegetables and she could not have got entry into the shop with the help of the accused gaura. 11. on the discussions above, i find that the prosecution has failed to prove its case against the accused persons beyond any reasonable doubt.l.k. mishra, j.1. in both the appeals judgment of conviction and order of sentence dated 16.1.2006 passed by srf srikanta nayak, special judge, keonjhar in s.c. no.121 of 1996 is under challenge, by which the learned court while acquitting the appellants of the offences under section 506 of the i.p.c. and section 3(2)(v) of the s.c. & s.t. (prevention of atrocities) act, 1989 convicted them under section 376(2)(g) of the i.p.c. and sentenced each to undergo r.i. for 10 years and to pay a fine of rs.1000/- in default to undergo r.i. for one month. therefore both the appeals were heard and are being disposed of by this common judgment.2. the prosecution case, in brief, is that the victim lady (name with-held) who was aged about 35 years at the time of occurrence is a widow and maintains her livelihood by purchasing and selling vegetables in weekly markets. on 20.12.1996, in the evening, as per her practice, she came back after purchasing vegetables from the local hat at champua. she came to the iron store, where she used to store the vegetables. since the owner of the said stce was absent she came to another nearby betel shop of one sarju, where the appellant goura chandra maharana was working and as per his instruction she kept the vegetables in the said shop. while coming back she saw her fried binati pradhan and went to the hospital to see her daughter, who was admitted there. after remaining there for the night, in the early morning at about 5.00 a.m. she went to the shop of sarju to bring her vegetables. accused goura opened the door on her call and she went inside the house. when she was picking up the vegetable basket goura dragged her inside the house and forcibly committed rape on her and threatened to kill her if she shouted. thereafter the other appellant bapi @ debadutta ratna kumar patra came there and he also committed rape on her. when she wanted to go to the police station, the appellant goura threatened to kill her showing a knife, in the evening she went to jayarrti market and after selling vegetables went to her home where she stayed the next day, which was a sunday. on monday also she attended rimuli market. on tuesday she went to the hospital for check up and told the lady doctor about the entire occurrence. on her advice, she gave sample of blood and urine for examination. on the way to her home she met the choukidar of gunduria village and told him about the occurrence. in the evening she disclosed about the occurrence to her brother. finally on 26.12.1996 she came to champua police station, where she orally reported the matter before the police. the report was reduced to writing and a p.s. case was registered on the basis of the same. after completion of investigation, the police submitted charge sheet and both the appellants faced trial being indicted under section 376(2)(g) and 506 of the i.p.c. and under section 3(2)(v) of the s.c. & st. (p.a.) act, 1989. the plea of the defence was one of total denial. in addition to that accused debadutta took a plea that he was hospitalized from 20.12.1996 to 22.12.1996.3. during trial, the prosecution examined as many as seven witnesses inclusive of the victim, who was examined as p.w.5 and the lady doctor, dr. sharmila mishra (p.w.1) who had examined her at the first instance and also the dr. dayanidhi barik (p.w.7), who had examined the victim on police requisition. on the other hand the defence examined three witnesses in support of its plea. basing on the evidence adduced, the learned trial court convicted and sentenced the accused persons as above giving rise to these appeals.4. sri r. panda, the learned advocate for the appellants has argued that the learned court below went wrong in convicting the appellants on basis of the sole testimony of the prosecutrix which is full of contradictions. he has further argued that the delay in lodging the f.i.r. has not been satisfactorily explained in this case and that the material witnesses, the gram rakshi and the brother of the victim before whom the victim narrated the incident at the first instance were withheld. he has also argued that the defence evidence has not been properly appreciated by the learned trial court and that the learned trial court failed to appreciate the fact that the victim had ample reason to falsely implicate the appellants. the learned additional standing counsel oh the other hand has supported the impugned judgment of conviction and sentence.5. there is no rule of law or of prudence that a conviction cannot be based on the evidence of a solitary witness. however the evidence of such witness has to be clear, cogent and trustworthy. it is also settled law that a conviction can be based on the sole testimony of the prosecutrix in a case of rape if her statement is believed. there is no quarrel with the proposition of law. however, it needs to be examined whether the evidence of the prosecutrix inspires confidence or not and further whether the prosecution has been able to bring home the charge beyond reasonable doubt.6. the occurrence took place in the early morning of 21.12.1996 but the f.i.r. was lodged at 2.30 p.m. on 26.12.1996. therefore, there was delay of more than 5 days in lodging the f.i.r. the delay in lodging the f.i.r. per se is not fatal to the prosecution case. however, if there is chance of concoction, deliberation and colourful version being presented due to delay, it assumes significance. whether the delay in lodging the f.i.r. is fatal to the prosecution case or not depends on the facts and circumstances of each case. the learned court below has reasoned that in case of rape especially when the family prestige is involved and so also the future of the victim, some delay in lodging the f.i.r. is inevitable. it was not so in the present case as would be apparent from the following discussion. in the present case, the victim is a married woman and is a widow having a 6 years old daughter. since she is a mature lady there should not have been any hesitation on her part to lodge the f.i.r. soon after the occurrence. in the f.i.r. itself she has mentioned that she wanted to lodge the f.i.r. immediately after the occurrence but due to threat given by the accused goura did not do so. the theory of threat was found to be false by the trial court and therefore the accused persons were acquitted of the offence under section 506 of the i.p.c. the victim went to the hospital on tuesday i.e. on 24th and gave her sample blood and urine for test. not only that on the same day she met the gramarakshi and told him about the occurrence and so also to her brother, who advised her to report the matter in the police station. during all these periods she attended different markets in connection with her business as a green grocer. since she had already disclosed the matter before the gramarakshi, his brother and a lady doctor and it cannot be said that because of family prestige she did not lodge f.i.r. the victim herself has not given any reason why she lodged f.i.r. after a delay of 5 days. the reason supplied by the trial court also does not seem convincing. the delay in lodging f.i.r. in this case therefore remains unexplained and is fatal to the prosecution case.7. another aspect which casts a shadow of doubt on the motive of the victim is that she was more concerned about getting pregnant. in the f.i.r. itself, it has been repeated thrice that she lodged f.i.r. lest she may get pregnant due to rape. interestingly, the evidence of p.w.1 dr. sarmila mishra shows that the victim had come to her on 22.12.1996 and. told her about the stoppage of her menses for two months. again she came to her on 24.12.1996 and on that occasion she told her that she had sex with two persons. on 21.12.1996 morning the lady doctor on examining her found her to be pregnant for 2 months. the victim lady could not have been unaware that she was pregnant for about 2 months by that time since there was stoppage of her periods for more than two cycles. then there was no occasion for her to mention in the f.i.r. about her apprehension that she may get pregnant due to rape. she was a widow and was pregnant for two months which as it seems she wanted to conceal. she was therefore, in search of scapegoats on whom she could put the blame for her pregnancy and escape the stigma. it is not without significance that she had told p.w.1 that she had sex with two persons and that she had never told her that the accused persons had committed rape on her. this aspect though was noticed by the learned court below, was explained away merely on the reasoning that even if the victim was a woman of loose character then also rape should not have been committed on her. of the three persons to whom she had disclosed about the occurrence prior to the lodging f.i.r. two i.e. her brother and the gramarakshi were not examined and the evidence of the third one i.e. p.w.1 goes against her version. on the other hand, the evidence of p.w.1 supplies a strong motive for false implication of the accused persons.8. as far as the defence evidence is concerned, it consists of evidence of d.w. 1 ghanashyama behera and d.w. 2 dr. benudhara muduli, who were examined to prove that the accused debadatta patra was admitted into the hospital as an indoor patient and remained their till 22.12.1996. d.w. 3, sarju prasad sahu has stated that the accused goura never worked for him and the victim had never kept the vegetables in his shop. d.w.1 has proved the indoor register and bed head ticket, which reveals that the accused debadutta patra was treated as an indoor patient from 20.12.1996 to 22.12.1996. a suggestion has been given to him that there are interpolations in the register. however, the prosecution has failed to show that the interpolations related to the entry with regard to the accused debadutta. d.w.2, a medicine specialist has stated that he admitted debadutta as an indoor patient to the hospital for fever and gastritis and that he remained there till 22.12.1996. in cross-examination he has stated that he knows debadutta personally and that he cannot say that debadutta had left the hospital between 20.12.1996 and 22.12.1996. p.ws.1 and 2 have not been cross-examined effectively. the prosecution has not challenged the admission of debadutta as an indoor patient for fever and gastritis and no suggestion to that effect has been given to the d.ws. 1 and 2. there is therefore, no reason to brush aside their evidence. on the evidence of d.w.2 it can be safely presumed that debadutta was admitted during the previous night for fever and gastritis. it is not possible for such a patient to get up at about 5 a.m. and go to a place without prior knowledge and to commit rape on a lady soon after another accused has committed rape on her. it may be noted here that the prosecution has not at all proved that there was common intention between two accused persons to commit rape on the victim. it is alleged that after one committed rape the other came to the spot and also committed rape.9. the victim has mentioned in the f.i.r. itself that since the owner of the iron shop was not present she kept vegetables in a betel shop of sarju after taking permission of the accused gaura. the discussion in the judgment with regard to the evidence of d.w.3 is as follows:d.w.3 is the betel shop owner who deposed that the victim had never kept vegetables in his shop. it is not the case of the prosecution that the victim kept the vegetables in the betel shop but the specific case is that the vegetables were kept in the iron shop by informing the accused gaura. so the evidence of d.w.3 is of no use.this narration in the judgment is totally wrong and is contrary to the evidence available. the victim has stated in her evidence (as well as in the f.i.r.) that she kept the vegetable in the shop of. sarju. the evidence of sarju, who was examined as d.w.3 is of vital importance. he has stated that the accused gaura never worked in his shop. he used to open his shop at 8 a.m. and used to close and lock it at 8 p.m. and that nobody used to sleep on that shop. he has further stated that the victim never kept the vegetable in his shop. there is no cross-examination of this witness except giving him two or three suggestions. his evidence effectively shows that the victim could not have kept the vegetables in his betel shop and accused gaura could not have been involved in her keeping the vegetables and she could not have got entry into the shop with the help of the accused gaura. in effect as per d.w. 3, no rape could have been committed inside the shop.10. the prosecution has to prove its case beyond the reasonable doubt but it is not so in case of the defence which can discharge its onus by preponderance of probabilities. there is no presumption that the prosecution witnesses are truthful and the defence witnesses are not. the defence evidence is therefore entitled to equivalent weight , as the prosecution evidence. in the present case, the defence evidence shows that the accused persons could not have been committed rape on the victim lady.11. on the discussions above, i find that the prosecution has failed to prove its case against the accused persons beyond any reasonable doubt. therefore, the appeals are allowed. the judgment of conviction and order of sentence are set aside and the appellants are acquitted of the charge under section 376(2)(g) of the i.p.c.