State of Orissa Vs. S. Appa Rao and ors. - Court Judgment

Excerpt:
criminal - evidence of prosecutrix - sections 366-a, 376, 379, 506 and 34 of indian penal code, 1860 (ipc) and section 114 a of evidence act, 1872 - respondents chargesheeted for commission of offence under sections 366-a, 376, 379, 506 and 34 of ipc - on completion of evidence, trial court acquitted respondents - being aggrieved, appellant filed appeal - held, as per established law, statement of prosecutrix is sufficient evidence under section 114-a of act - however, in present case, as per established facts, prosecutrix was of unsound mind - thus, evidence of prosecutrix was not reliable and could be considered as sufficient evidence to convict respondents -further, prosecutrix herself given contradictory statements and there was no strong corroboration of statement of prosecutrix - thus, prosecution case not established beyond reasonable doubt - no infirmity found in impugned order - appeal dismissed - 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. - 8 to 10 along with medical reports and serological reports clearly established the charges of kidnap and rape against the respondents, but the trial judge without appreciating these evidence properly, recorded the order of acquittal. 6 as unreliable and medical reports submitted by p. she admitted that she was not mentally well for some time and was under medical treatment for her mental illness. order of conviction can also be recorded on the solitary statement of prosecutrix but such presumption or conclusion can be drawn if the evidence of prosecutrix is found reliable. so it is not safe to blindly rely on her statement without strong corroboration. 6 was unrealiable and was not supported by any strong or cogent evidence; the trial court could not have convicted respondents for serious offences like kidnap, rape, theft etc.a.k. parichha, j. 1. this is an appeal by the state against the order dated 28th january, 1986 passed by the learned asst. sessions judge, rayagada acquitting respondent-accused persons from the charges under sections 366-a/376/379/506/34, i.p.c. in sessions case no. 22 of 1985.2. the prosecution allegation in sessions case no. 22 of 1985 was that the victim girl boarded the gunupur-rayagada bus at parbatipuram bus-stand in the evening of 10.5.1985 for her journey to village-ganganabalsa. the respondents who were the driver, helper and conductor of that bus respectively did not allow the victim girl to get down from the bus at ganganabalsa and took her in the bus to rayagada against her will. at rayagada bus-stand also they did not allow her to leave the bus and after all the passengers got down, the respondent no. 2 spread some seat cushions on the floor of the bus, laid down the victim girl on those cushions, removed her clothes and committed sexual intercourse against her will uttering threat of dire consequences, if she resists. respondent no. 1 then committed rape on the victim girl at the same place. it is alleged that after such sexual intercourse respondent no. 2 asked the victim girl to take food and sleep in the bus, but respondent no. 3 insisted that he would take her to the lodge situated nearby. when respondent no. 3 was taking the victim girl from the bus towards the lodge, the victim girl found some police persons present nearby and informed them about the incident. p.w.10 with the assistance of interpreter p.w.1 reduced the report of the victim girl into writing, treated that report as f.i.r. and registered p.s. case no. 159 of 1985. investigation was then conducted by the police authorities and charge-sheet was submitted under sections 366-a/376/379/506/34, i.p.c. against the respondents. after commitment, the said case was registered as sessions case no. 22 of 1985 and learned asst. sessions judge, rayagada who was entrusted with the trial of the case, framed charge under section 366-a, i.p.c. against all the respondents and in addition under sections 376/379/506/34, i.p.c. against respondent nos. 1 and 2. during trial the prosecution examined eleven witnesses and produced documents and material objects, which were marked exts.1 to 16 and m.os.i to xi respectively. the respondent accused persons neither examined any witness nor produced any document. on consideration of the evidence on record, learned trial judge came to the conclusion that the charges have not been substantiated beyond reasonable doubt and accordingly acquitted the respondents. aggrieved, the appellant-state has filed the present appeal, after obtaining leave of the court, challenging the said order of acquittal.3. the appeal against respondent no. 2 was dismissed as his present address and whereabouts could not be furnished by the appellant and notice could not be served on him. this order therefore, relates to respondents nos. 1 and 3 only.4. mr. mishra, learned standing counsel appearing on behalf of the appellant-state submitted that the evidence of the prosecutrix-p.w.6, doctors-p.ws.7 and 11 and police officers-p.ws. 8 to 10 along with medical reports and serological reports clearly established the charges of kidnap and rape against the respondents, but the trial judge without appreciating these evidence properly, recorded the order of acquittal. according to him, impugned order is against weight of evidence on record and the settled norms of law.5. learned counsel appearing for the respondent nos.1 and 3 on the other hand supported the finding of the trial court and submitted that the evidence of the victim girl-p.w.6, lady doctor-p.w.7 and the police officers are unacceptable as those are improbable, self-contradictory and riddled with omissions and contradictions.6. p.w. 1 is a local resident of rayagada who interpreted the oral report of the victim girl from telgu to oriya before p.w.10 and also explained the contents of the f.i.r. to the victim girl in telgu. p.ws.2 and 3 are witnesses to the seizure of the seat cushions, cloth of the victim girl, cloth of the accused persons, the bus and its documents etc. and have proved the seizure list exts.2 to 7. p.ws. 4 and 5 are the two post occurrence witnesses who disowned the prosecution allegations and were declared hostile. p.w.6 is the victim girl. p.w.7 is the lady doctor, who examined the victim girl on police requisition and submitted report ext.6. p.w.8 is the police officer, who conducted the seizure of the articles under seizure list exts.2 to 7. p.w.9 is a police officer, who was present when the f.i.r. was recorded p.w. 10 is the then o.i.c., rayagada police station, who recorded the f.i.r. ext.1 and registered the p.s. case. p.w. 11 is the local sub-divisional medical officer, who examined the accused persons, took x- ray of the victim girl and submitted his reports exts.10/1, 11/1 and 12/1. the serological reports are exts.14 and 15.7. on a close reading of the evidence and the documents available on record it appears that evidence of p.ws.1, 2, 3, 8 & 9 are technical in nature and that of p.ws.4 and 5 are virtually useless as they have not supported the prosecution allegation. the evidence which are really relevant to the issues involved are the evidence of p.ws.6, 7, 10 and 11 and the documents exts.1, 6, 10/1, 11/1, 12/1, 14 & 15.8. the evidence of p.w. 11 and the report exts. 12/1 submitted by him show that the victim girl was between 14 to 17 years on the date of occurrence. the report exts.6 reveals that the victim girl was medically examined on 11.5.1985 (day following occurrence) and linear abrasion at the middle border of right eye, mark of human teeth impression of the right cheek, linear abrasion just below the middle of the chest and bleeding from fresh hymen tear were found. such marks of violence and bleeding from the private part of the girl was suggestive of recent sexual intercourse and use of some physical force.9. the next question for consideration was whether such sexual acts on the victim girl committed by the respondents. learned trial court answered this question in negative as he considered the allegation and evidence of p.w.6 as unreliable and medical reports submitted by p.w.7 as improbable. the correctness of such conclusion is now to be tested.10. p.w.6 in her f.i.r. ext.1 made allegations that she boarded the gunpur-rayagada bus at parbatipuram in order to go to her village ganganabalsa and paid rs. 2.00 to the conductor-respondent no. 3 as the bus fare from parbatipuram to ganganabalsa was rs. 2.00, but instead of letting her out of the bus at ganganabalsa the respondent brought her to rayagada. she further alleged that after the bus reached at rayagada at about 10.00 p.m. in the night, the respondent detained her in the bus and laying her on some seat cushions on the floor of the bus respondent nos. 1 and 2 raped her one after the other. she also alleged that after committing the rape respondent no. 2 offered her some food and asked her to sleep in the bus, but respondent no. 3 objected and asked her to go with him to a nearby lodge and sleep with him there. she claimed that when the respondent no. 3 was taking her to the lodge, she found some police personnels present at the bus stand and reported the matter to them and her report was reduced into writing. in her statement before the court p.w.6 gave a different version. she stated that being directed by the respondents she came to rayagada in the bus from parbatipuram and at rayagada all the three respondents raped her one after the other and that after committing such rape respondent no. 2 asked her to stay inside the bus and told that he would pay her some money so that she can go home. she stated that at that time a car came with two women and one police officer and she was taken to the police station where her report was reduced into writing. p.w.6 did not say anything about the respondents' forcibly bringing her in the bus to rayagada or threatening her in any manner or stealing any article from her possession. she admitted that she was not mentally well for some time and was under medical treatment for her mental illness. in cross-examination, she stated that she does not remember if she stated before the i.o. that the respondents asked her to come to rayagada or if some rickshaw pullers rounded her at rayagada bus-stand and if those rickshaw pullers raped her. she even admitted that due to her mental imbalance, she is not able to remember the incidents properly.11. presumption under section 114-a of the evidence act is available in a case of rape. order of conviction can also be recorded on the solitary statement of prosecutrix but such presumption or conclusion can be drawn if the evidence of prosecutrix is found reliable. in the present case the very statement of p.w.6 shows that she is a lady of unsound mind and is not even able to remember the incidents properly. she has also given prevaricating and contradictory statements. so it is not safe to blindly rely on her statement without strong corroboration.12. the only corroborations put forth are the statement of p.w.7 and her report ext.6. in the report ext.6, the doctor, p.w.7 has indicated that there were some marks of violence on the body of p.w.6 and there was also recent tear of the hymen at 5'o clock position. in her statement, p.w.7 has disclosed that p.w.6 was unwilling to undergo medical examination and did not co-operate when she was taking medical examination. she stated that p.w.6 refused to lie down on the examination table and fled away and that because of non-corporation of p.w.6, she could only perform general examination and submitted her report basing on such examination. in cross-examination, p.w.7 candidly admitted that unless the p.v.c. and internal examination of the victim girl is made in lying posture, the rupture of hymen, position and age of rupture cannot be ascertained. so, the statement of p.w.7 and her report are not quite consistent and accordingly, cannot be relied upon. none of the p.ws. has stated anything about the respondents' bringing the victim girl to rayagada against her will, threatening her, or committing any sexual intercourse with her. rather p.w.3 has stated that p.w.6 paid bus fare of rs. 4.25 to the conductor and that the bus fare from parbatipuram to rayagada was rs. 4.25 at that time. p.ws.4 and 5 have given indication that in the night they found some rickshaw pullers surrounding the victim girl near the bus stand of rayagada. the serologist report no doubt reveals presence of some semen on the clothes of respondent nos.1 and 2 and some bloodstain in the seat cushion of the bus, but those blood and semen have not been linked to the accused persons or the victim girl.13. when the evidence of p.w.6 was unrealiable and was not supported by any strong or cogent evidence; the trial court could not have convicted respondents for serious offences like kidnap, rape, theft etc. learned trial judge therefore did not commit any error or illegality in acquitting the respondents in sessions case no. 22 of 1985.14. in the result, therefore, the govt. appeal is found to be without any merit and is dismissed.