State of Orissa Vs. Kamakshya Prasad Meher - Court Judgment

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criminal - inadequate sentence - section 376 of indian penal code, 1860 (ipc) - respondent convicted under section 376 of ipc by trial court - respondent filed appeal and state also filed appeal for inadequate sentence passed against respondent - held, prosecution failed to establish offence beyond reasonable doubts by leading cogent, convincing, credible, consistent and unimpeachable evidence that accused committed rape on prosecutrix and as such he cannot be held guilty of charge under section 376 of ipc - conviction of accused under section 376 of ipc cannot be sustained in law and is liable to be set aside - since accused is entitled to acquittal, question of enhancement of sentence passed against respondent does not arise - state's appeal is being devoid of merit thus liable to be dismissed - appeal preferred by respondent allowed - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 17 was not good for which she enquired as to what happened and ultimately p. (vi) by appearance, the victim lady was found to be of average built, adult of about 20 years of age and secondary sexual features like breasts, pubic and axillary hair well developed. she is quite intelligent, hailing from the district of balasore. had she not been a consenting party, she could have raised alarm to draw attention of the neighbours and could have very well escaped from the house to the road to raise alarm to draw attention of the passers-by and neighbours and the culprit could have been nabbed. 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 trustworthy and reliable and corroboration is not necessary unless there are compelling reasons for seeking corroboration 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 the corroboration is essential before there can be a conviction, but there is necessity to 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 could not negative the offence of rape. it is also well settled in law that where the medical evidence was 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 sexual intercourse, it would not be safe to convict the accused, on her uncorroborated testimony.p.k. patra, j.1. the state has preferred the above government appeal no. 39 of 1990 under section 377 of the code of criminal procedure, 1973 (act 2 of 1974) challenging the inadequate sentence passed against the respondent (hereinafter referred to as 'the accused') who has been convicted under section 376 of the indian penal code (for short 'ipc') and sentenced to undergo rigorous imprisonment for three years and to pay a fine of rs. 1000.00, in default, to undergo rigorous imprisonment for a further period of two months, in sessions case no. 1/6 of 1990 by the assistant sessions judge-cum-chief judicial magistrate, bhawanipatna. the accused had preferred criminal appeal no. 26 of 1990 in the court of the learned sessions judge, kalahandi at bhawanipatna challenging the judgment of his conviction and sentence passed in the aforesaid case. the said criminal appeal no. 26 of 1990 was transferred to this court and has been renumbered as criminal appeal no. 191 of 2000. both the appeals were heard together and this judgment disposes of both the cases.2. the prosecutrix (p.w. 17), a young unmarried girl aged about eighteen years, was staying with her elder sister (p.w. 16) and brother-in-law (p.w. 14) in village pilkia under junagarh police station in the district of kalahandi. while p.w. 16 was working as an a.n.m. in the pilkia health sub-centre and staying in the mahila samiti building, the accused was serving as a malaria surveillance worker attached to the said health sub-centre. on 7-9-1989 the accused went to the residence of p.w. 16 and informed her that he would come there in the next morning and both of them would go to village kelia. p.w. 16 waited at her house till 8 a.m. in the morning of 8-8-1989 and since the accused did not come, she left for village kelia with her husband (p.w. 14) expecting that the accused might have alone left for village kelia. when p.ws. 14 and 16 left their house, the prosecutrix (p.w. 17) and the children of p.w. 16 were there in the house. p.w. 16 remained in village kelia till noon, but could not find the accused there and returned back to her house at 1.00 p.m. it is alleged by the prosecution that after departure of p.ws. 14 and 16 from their house, the accused came to their house and enquired about p.w. 16. being informed that she had already left for village kelia, he went away, but after some time again came to the house of p.w. 16, caught hold of p.w. 17 from her backside, laid her down on the ground and forcibly committed rape on her against her will and without her consent. after leaving p.w. 17 in the house, the accused departed. returning to her house at 1 p.m., p.w. 16 found p.w. 17 sleeping on bed and asked her to bring a glass of water and noticed that the condition of p.w. 17 was not good for which she enquired as to what happened and ultimately p.w. 17 disclosed about the rape committed on her by the accused. p.w. 16 intimated the matter to her husband (p.w. 14) and after ascertaining the fact from p.w. 17, p.w. 14 lodged written report (ext. 16) at 4.30 p.m. on 8-8-1989 before the o.i.c. of junagarh p.s. (p.w. 18) who registered the case and took up investigation. during investigation, the i.o. seized the saya and saree of p.w. 17 stained with blood and semen, examined witnesses and sent p.w. 17 for medical examination. he also seized one gunny bag stained with blood from the spot. p.w. 18 searched for the accused, but could not trace him out. he seized a full pant and a shirt of the accused. the seized garments were sent for chemical examination. the accused surrendered in court on 11 -9-1989 and was remanded to jail in custody. after completion of investigation, p.w. 18 submitted chargesheet under section 376, ipc against the accused who stood his trial.defence plea is one of denial and false implication due to hostility with the elder sister of p.w.17.3. learned addl. standing counsel for the state and mr. n.c. panigrahi, learned counsel for the accused, were heard at length. while learned addl. standing counsel urged for enhancement of the sentence passed against the accused, mr. panigrahi contended that the impugned judgment of conviction is unsustainable in law due to improper and incorrect appreciation of evidence on record and urged for setting aside the same.4. in order to bring home the charge against the accused, prosecution has examined eighteen witnesses in all, of whom p.w. 17 is the prosecutrix, p.w. 16 is her elder sister and p.w. 14 is her brother-in-law. p.w. 1 is a resident of village pilkia who turned hostile and did not support the pros ecutipn case. p.ws.2 and 3 are two witnesses to seizure. p.ws 4 and 5 are two residents of village pilkia who also turned hostile and did not support the prosecution case. p.w. 6 is the lady assistant surgeon who medically examined the victim (p.w. 17} on 8-8-1989 at 7.15 p.m. and submitted her report, ext. 5 and opinion, ext. 6. p.w. 7 is the medical officer (radiologist) who conducted ossification test of p.w. 17 and submitted his report, ext. 7. p.w. 8 is another medical officer who also medically examined p.w. 17 and submitted his report, ext.9. p.w.9 is also a medical officer who examined the vaginal swab collected from p.w. 17 and submitted his report, ext. 10. p.w. 10 is a witness to seizure who turned hostile and did not support the prosecution case. p.w. 11 is a witness to seizure of the wearing apparels of the accused. p.w. 12 is a witness to seizure of some documents. p.w. 13 has turned hostile and has not supported the prosecution case. p.w. 15 is the medical officer of chiliguda p.h.c. where the accused was serving as malaria surveillance worker. p.w. 18 is the investigating officer.defence has examined no witness.5. learned asst. sessions judge while discussing the evidence on record placed reliance on the testimony of the prosecutrix (p.w. 17) notwithstanding the infirmities and inconsistencies with the medical evidence on record. therefore the testimony of the prosecutrix requires careful scrutiny before placing reliance on her to sustain the conviction of the accused. before the statement on p.w. 17 is subjected to severe test and close scrutiny, it will be expedient to consider the medical evidence on record in support of the prosecution case.6. the lady assistant surgeon (p.w.6) who examined p.w.17 on 8-8-1989 at 7.15 p.m. and submitted report (ext.5) and opinion (ext. 6), in her statement in court, has stated that:(i) there were no marks of violence or injury on her person especially over cheeks, breasts, nipples and inner parts of thighs.(ii) on separation of labia majora it was found that there was bleeding from the vaginal orifice. hymen was found absent with remnants found at 2, 5 and 7 o'clock positions. the passage admitted two fingers easily. vagina was filled with clots and fresh blood. on cleaning it was found that there was a lacerated injury over posterior wall of the vagina near the posterior fornix of 2' x 1' x ' size with fresh bleeding. age of injury was less than twentyfour hours.for the management of this injury the prosecutrix was referred to o & g. specialist of district headquarters hospital and was admitted to maternity ward of the said hospital. opinion regarding the cause and nature of the wound was to be obtained from the o & g. specialist.(iii) no hair of foreign origin was found on the person of the lady.(iv) p.w.6 stated that the swab was collected from the posterior fornix and sent to pathology specialist for examination for the presence of spermatozoa and his report showd that there was no spermatozoa.(v) no foreign body was found in the vagina.(vi) by appearance, the victim lady was found to be of average built, adult of about 20 years of age and secondary sexual features like breasts, pubic and axillary hair well developed. however she was referred to radiology specialist for x-ray examination and opinion.7. the medical officer (p.w.7) who conducted the ossification test of p.w. 17 found that the age of p.w. 17 would be above eighteen years as per his report ext.7.as per the statement of the medical officer p.w.8, p.w. 17 was admitted for treatment to the o. & g. department of the district headquarters hospital, bhawanlpatna being referred by p.w.6. in his statement in cross-examination he has stated that the injury found on the vagina of p.w. 17 might be possible by accidental fall or by self-infliction and was not possible by a male organ in course of sexual intercourse. in his opinion, p.w. 17 was having previous sexual intercourse as her vagina was patulous.as per the statement of the medical officer (p.w. 9), no spermatozoa was detected in the vaginal fluid of p.w. 17 as per his report, ext. 10.8. the victim girl (p.w. 17) has stated that she was in the house with children of p.w. 16 while someone came from behind, caught hold of her and she lost her senses which she regained after one hour. after regaining her senses she did not see anybody in the house and she could not say who was that person who caught hold of her. she hastened to add that the accused might have been that person who committed rape on her and that immediately she went to one kishori dandasena (p.w. 13) and informed her about the occurrence, but p.w. 13 has not supported the prosecution case and has not corroborated the statement of p.w. 17 and has turned hostile. in her statement in cross-examination p.w. 17 has admitted that she sustained injury on her private part due to fall and there was bleeding and that she could not say who caught hold of her from back side and who committed rape on her. she has read up to class xi and had appeared in matriculation examination in the year 1984. she is resident ofvillage kudupur under basta police station in the district of balasore and had temporarily come to reside with her sister in village pilkia under junagarh police station in the district of kalahandi. she is quite intelligent, hailing from the district of balasore. had the accused actually committed rape on her, she would not have hesitated to depose against him. that apart, she has disowned the saree (m.o.i.) to be belonging to her stating that she had not put on that saree at the time of rape and that she did not know what happened to her wearing saree and saya which she put off after the occurrence. none of the children of p.w. 16 who were present at the time of the alleged rape, has been examined as a witness in support of the prosecution case and there is no evidence on record as to whether they were absent from the house at that time. if at all it is believed that someone unknown to p.w. 17 committed rape on her during the absence of the children in the house, finding her alone, the same might have been with her consent. had she not been a consenting party, she could have raised alarm to draw attention of the neighbours and could have very well escaped from the house to the road to raise alarm to draw attention of the passers-by and neighbours and the culprit could have been nabbed. despite the above circumstances of the case and the exculpatory statement of the prosecutrix and the medical evidence on record not supporting the prosecution case, the learned assistant sessions judge has placed reliance on the statement of the prosecutrix and has held the accused guilty of the charge which cannot be legally sustained. it will be quite hazardous to convict the accused of the charge on such materials on record.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 trustworthy and reliable and corroboration is not necessary unless there are compelling reasons for seeking corroboration 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 the corroboration is essential before there can be a conviction, but there is necessity to 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 could not negative the offence of rape. it is also well settled in law that where the medical evidence was 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 sexual intercourse, it would not be safe to convict the accused, on her uncorroborated testimony.10. in the present case, as discussed above, the irresistible conclusion would be that prosecution has not been able to establish beyond reasonable doubts by leading cogent, convincing, credible, consistent and unimpeachable evidence that the accused committed rape on the prosecutrix, p.w. 17, and as such he cannot be held guilty of the charge under section 376, ipc. learned assistant sessions judge has erred in finding the culpability of the accused and convicting him under section 376, ipc which cannot be sustained in law and is liable to be set aside. accordingly, the impugned judgment is found to be unsustainable in law and is liable to be set aside. since the accused is entitled to an acquittal question of enhancement of the sentence passed against him does not arise. the government appeal is thus found to be devoid of any merit and is liable to be dismissed and the criminal appeal preferred by the accused is bound to be allowed.11. in the result, government appeal no.39 of 1990 is dismissed and criminal appeal no. 191 of 2000 is allowed. the impugnedjudgment dated 28-7-1990 passed by the learned assistant sessions judge-cum-chief judicial magistrate, bhawanl-patna in sessions case no. 1/6 of 1990 convicting the accused under section 376, ipc and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of rs. 1000.00, in default to undergo rigorous imprisonment for a further period of two months, is set aside. the accused is found not guilty and is acquitted of the charge. since he is on bail, his bail-bond be discharged.