Kalia @ Kalakar Naik Vs. State of Orissa - Court Judgment

Excerpt:
criminal - rape - corroboration of evidence - sections 323, 342 and 376 of indian penal code, 1860 (ipc) - appellant convicted for commission of offence under sections 323, 342 and 376 of ipc - on appeal, first appellate court confirmed the order of conviction - hence, present appeal - held, prosecutrix stated that she was raped by appellant against her will - statement of prosecutrix was not assailed by appellant in her cross examination - further, as per statements of other witness appellant confined prosecutrix in his house and beating her in presence of witness - those statements of witnesses fully corroborated by medical evidence - all evidences produced by prosecution against appellant established and proved beyond reasonable doubt - thus, commission of offence by appellant fully established - accordingly, appeal dismissed and conviction of appellant upheld - 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. - ghosh for the petitioner, has addressed this court with the contention that the learned courts below have failed to appreciate the evidence of the witnesses on record properly and thereby committing gross illegality in convicting the appellant for the offences for which he has been charged. empowers the high court to interfere with the concurrent findings of the learned courts below only in exceptional cases. state reported in (1995) 8 ocr 530, the law has been well settled that powers of revisional court and findings of fact cannot be called in question unless shown to be perverse. 11. in the above background, in the light of well established position of law and having gone through the findings of learned courts below juxtaposing with relevant evidence of the witnesses on record. i am well convinced that the learned trial judge has rightly based conviction of the petitioner on the testimony of prosecutrix (p. generally in cases of sexual assault on a woman during trial the accused propounds of defence theory of innocence as well as false implication besides insisting upon corroboration of victim's testimony which is found to be lacking in most of the cases of rape though victim herself speaks about her victimisation of sexual assault in the hands of rapist. just as a witnesswho has sustained injury, which is not shown or believed to be self inflicted is best witness in the sense that he is least likely to exculpate a real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. state of rajasthan reported in air 1952 sc 54, it is observed as follows :the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances made it safe to dispense with it, must be present to the mind of the judge. in the present case the accused not only satisfied his lust by having sexual co-hibitation with the victim but also he assaulted her physically in presence of the witnesses and confined her wrongfully in a room of his house till she was rescued by the police.m. papanna, j. 1. judgment of the learned sessions judge, dhenkanal in crl. appeal no. 68/96 affirming the order of conviction of the petitioner passed by the learned chief judicial magistrate-cum-asst. sessions judge, angul in s. t. 34-a of 1996 sentencing him to undergo rigorous imprisonment for 7 years and to pay fine of rs. 1000/-under section 376, ipc and in-default to undergo rigorous imprisonment for six months and also to undergo rigorous imprisonment for one year on each count under section 342/323, ipc and to run the above sentences concurrently is impugned in this crl. revision.2. the accused is put up on trial on the accusation that on 12.10.95 at about 1.00 p.m. he caught hold of the prosecutrix (p.w. 2) in front of her house, dragged her by holding tuft of her hair and confined her in a room of his house where he had committed rape on her against her will. she was subsequently rescued by the police and the witnesses from the house of the accused. on her information chhendipada p. s. case was registered. duringinvestigation the i.o. got her medically examined, made seizure of wearing apparels of the victim and also of the accused. on completion of investigation, the i.o. submitted charge sheet against the accused persons.3. during trial the accused who pleaded innocence of the charges and false implication set up a defence theory that after he married the victim's cousin sister she started defaming him that he is a man of bad character for which they were not pulling on well which culminated in roping him in a false case by the victim.4. to bring home the charges to the accused, prosecution has put in the witness box as many as 12 witnesses of whom padmolochan nayak (p.w. 1) is brother of the prosecutrix; p.w. 2 is the prosecutrix herself; p.w. 3 is the secretary of padapada village committee; p.w. 4 is the husband of p.w. 2; p.w. 5 is a co-villager of the parties; p.w. 6 is a medical officer of chhendipada p.h.c. who on police requisition examined the accused; p.w. 7 is ranjita biswal, a lady doctor of kosala p.h.c. who on police requisition examined the victim; p.w. 8 is a medical officer of angul hospital who examined the blood grouping of the accused; p.w. 9 is also a co-villager of the parties; p.w. 10 is another co-villager; p.w. 11 is the c.i. of police, angul p.s. who took charge of investigation of the case from s.i. shri g. n. das, o.i.c. of chhendipada p.s. and p.w. 12 is the o.i.c. of chhendipada p.s. who played his respective role in the investigation of the case.5. the defence, on the otherhand, examined no witness in support of the stand taken by the accused.6. learned trial judge having believed the evidence of witnesses for the prosecution including testimony of prosecutrix corroborated by the medical evidence found the accused guilty of the charges under section 376/342/323, ipc and convicted and sentenced him thereunder as stated above. on appeal, the learned sessions judge, dhenkanal affirmed the said order of conviction and sentence which is now under challenge in the present revision.7. in course of hearing, the learned counsel mr. s.c. ghosh for the petitioner, has addressed this court with the contention that the learned courts below have failed to appreciate the evidence of the witnesses on record properly and thereby committing gross illegality in convicting the appellant for the offences for which he has been charged. according to him the testimony of prosecutrix having been uncorroborated by the evidence of independent witnesses, cannot be relied upon to base conviction of the appellant.8. on the otherhand, the learned addl. standing counsel, mr. s. pradhan for the state, has supported the impugned orderof conviction and sentence as fully justified in consonance with principles of law.9. the learned counsel for the petitioner, since persuaded this court to set aside the concurrent findings of the learned courts below by invoking jurisdiction of this court under section 401 of the code of criminal procedure, position of law on the subject needs to be examined.10. section 401, cr.p.c. empowers the high court to interfere with the concurrent findings of the learned courts below only in exceptional cases. in the case of punia behera @ puma chandra behera v. state reported in (1995) 8 ocr 530, the law has been well settled that powers of revisional court and findings of fact cannot be called in question unless shown to be perverse. a finding is perverse when no reasonable man on a consideration of the materials on record can arrive at such finding. in the case of bhola v. state reported in 1987 (ii) olr 304 similar view has been taken by this court holding that concurrent findings of both the courts below do not require interference. in the case of gangadhar v. state reported in 1987 (ii) olr 519 also similar view has been taken. likewise in 84 (1997) clt 835, santosh sahu, v. state it is held that the revision against the conviction being confirmed in appeal, there is no ground for interference against concurrent findings of fact. the ratio of the above decisions shows that the high court is not expected to act as if it is hearing an appeal. if the findings are based on no evidence or are otherwise vitiated and no reasonable conclusion can be drawn regarding guilt on an accused, it would be the duty of this court to set at naught such findings.11. in the above background, in the light of well established position of law and having gone through the findings of learned courts below juxtaposing with relevant evidence of the witnesses on record. i am well convinced that the learned trial judge has rightly based conviction of the petitioner on the testimony of prosecutrix (p.w. 2) which is not only clear, consistent and free from neutral infirmities but also corroborated by evidence of medical officer (p.w. 7) who examined her on police requisition and prepared the report (ext. 5) showing multiple external injuries on the breast and other parts of her body from which possibility of sexual assault on the victim cannot be ruled out though no spermatoza could be detected in her private parts during medical examination. her clear and categorical testimony that she was raped by the accused against her will having remained unassailed by the defence during her cross examination, can be safely accepted and relied upon particularly when evidence of other witnesses such as p.ws. 1, 3, 5, 9 and 10 establishes the case of the prosecution to the effectthat inspite of their protest the accused dragged her by beating by the by to his house and threatening them to assault if they would come to her rescue, and confined her in a room of his house where he committed sexual assault on the victim for which there was no scope for them to see the actual act of rape. p.w. 4, being her husband having no enimical relation with him deposed stating that he committed rape on his wife. when he has no enimical relation with the accused there was no reason why he would implicate him by resorting to falsehood basing on the version of his wife. therefore, on the face of these materials on record, the learned trial judge cannot be said to have committed material irregularity or illegality in accepting evidence of the victim corroborated by the medical evidence which the learned sessions judge, dhenkanal having appreciated properly in course of hearing of the appeal saw eye to eye with the learned trial judge in respect of his findings of guilt of the accused under sections 376/342/323, ipc.12. while parting with the judgment, i feel it desirable to express a bit of my mind on the evidence of the prosecutrix and up-holding conviction of the petitioner relying on her evidence. generally in cases of sexual assault on a woman during trial the accused propounds of defence theory of innocence as well as false implication besides insisting upon corroboration of victim's testimony which is found to be lacking in most of the cases of rape though victim herself speaks about her victimisation of sexual assault in the hands of rapist. therefore, in such cases testimonial potency of version of prosecutrix cannot be lost sight of. in the case at hand, the accused while committing sexual assault on the victim against her will applied criminal force for which multiple injuries as per ext. 5 were caused particularly on the breast and other parts of her body having corroborative value which must be borne in mind while adjudicating a case of rape, in the case of krishan lal v. state of haryana, air 1980 sc 252, the hon'ble apex court has taken this view. it is pertinent to refer to an important ruling of the apex court in this connection, i.e. case of vharwada bhogia bhai and hirly bhai v. state of gujrat reported in air 1983 sc 753 wherein their lordships were constrained to observe that in the indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. a girl or a woman in the tradition bound non-permissive society in india would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. she would be conscious of danger of being ostracised by the society and when in the face of these factors the crime is brought to light there is built in assurance that the charge is genuine rather than fabricated. just as a witnesswho has sustained injury, which is not shown or believed to be self inflicted is best witness in the sense that he is least likely to exculpate a real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. a woman or a girl who is raped is not an accomplice. corroboration is not the sine qua non for conviction in a rape case.13. in case of rameswar v. state of rajasthan reported in air 1952 sc 54, it is observed as follows :'the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances made it safe to dispense with it, must be present to the mind of the judge....'14. therefore, in the light of dictum discussed above, i am of the considered view that corroboration of the testimony of the victim cannot be insisted upon. in the present case the accused not only satisfied his lust by having sexual co-hibitation with the victim but also he assaulted her physically in presence of the witnesses and confined her wrongfully in a room of his house till she was rescued by the police. while sitting in a court of revision for the reasons recorded and law on the subject discussed as above, i am not inclined to interfere with the concurrent findings of fact recorded by the learned courts below basing on the materials available on the record.15. in course of hearing, the learned counsel shri s. c. ghosh for the appellant has also submitted that since the appellant has already undergone imprisonment for about 6 years and 4 months he should be set at liberty forthwith by treating the period of detention undergone by him as substantive sentence of imprisonment to which the learned addl. standing counsel, shri s. pradhan objected vehemently. so far as sentence is concerned, the law as contemplated under section 376, ipc prescribes a minimum sentence for 7 years which under no circumstances can be reduced particularly when he has committed an ugly crime of rape which is not only a felony against the person of the present victim but also it is a crime against the society as a whole, thereby polluting the entire atmosphere in the society of human beings and destroying the psychology of woman folk and above all it being a crime against basing human rights of a woman, i feel that the appellant has been rightly convicted and sentenced thereunder, but, however, he need not pay fine of rs. 1000/- as the revision merits no consideration, is hereby dismissed with the aforesaid modification.