Samal & Anr Vs. State of Orissa  INSC 143 (9 July 1991)
B.C. (J) Ray, B.C. (J) Agrawal,
1991 SCR (2) 839 1991 SCC (3) 562 JT 1991 (3) 63 1991 SCALE (2)89
of India: Article 136-Special leave petition-Concurrent
findings of facts-Re-appraisal of evidence-Whether could be considered.
Penal Code, 1860: S.376-Rape-Trial- Uncontroverted testimony of victim-Making
out the offence against the accused persons-Conviction and sentence awarded by trial
court-Maintained by appellate court and High Court in revision-Validity
of-Corroboration not the sine qua non for conviction.
Act, 1872: S. 114A-Evidence-Victim girl subjected to sexual assault
forcibly-Protest and struggle by victim-Absence of consent-Presumption of.
Procedure Code, 1973: S. 401-Revisional jurisdiction-High Court-Whether could
appellants forcibly took P.W. 2 to a lonely place on 19.3.1983, made her to
drink liquor and committed sexual assault on her. Thereafter they left her in a
truck. While the said truck was unloading materials near a village, the victim
stealthily left the truck and concealed herself near a fence. P.W. 7 rescued
her and took her to the house of P.W. 8, one of her distant relative, from
where her father P.W. 1 took her back and lodged the report at the police
station. A case under ss. 363 and 376 read with s. 341.I.P.C.
was registered against both the appellants.
completion of the investigation, a charge sheet was submitted and the
appellants were tried for the aforesaid offences.
appellants denied the prosecution allegations and pleaded that they were
falsely implicated because of refusal by one of them to marry the girl and
previous enmity with the other. The Assistant Sessions Judge rejected the defence
pleas, and found that the appellants committed rape on the victim without her
consent, and relying on s. 114A of the Evidence Act, convicted the appellants
under s. 376(2)(g),
I.P.C. and sentenced each of them to rigorous imprisonment for three 840 years.
Since the victim was more than 16 years of age, the appellants were acquitted
of the charge under s. 363, I.P.C.
dismissal of their appeal against the conviction and sentence by the Addl. Session
Judge, the appellants filed a revision application before the High Court.
High Court duly considered and appraised the evidence and held that the
appellants committed rape on PW 2 forcibly without her consent. Ultimately the
appellants came in appeal by special leave to this Court.
the appeal, this Court,
1. In cases of rape, generally it is difficult to find any corroborative
witnesses except the victim of the rape. However, corroboration is not the sine
que non for a conviction in a rape case. In the Indian setting, refusal to act
on the testimony of a victim of sexual assault in the absence of corroboration
as a rule, is adding insult to injury. [843D-F] Bharwada Bhoginbhai Hirjibhai
v. State of Gujarat, AIR 1983 SC 753 and Rameshwar v.
The State of Rajasthan,  SCR 377, relied on.
the instant case, the victim girl clearly stated in her evidence that she had
been taken to a solitary house in the hills by appellant no. 1 where she was
made to drink liquor and thereafter she was undressed and forcibly subjected to
sexual intercourse by both the accused- appellants one after the other. Her uncontroverted
testimony was accepted by all the courts and they concurrently found that she
had been raped without her consent. [844F-G]
Apart from the legal presumption that flows from the provisions of s. 114A of
the Evidence Act, it is clearly evident in the instant case, that the victim
girl protested and struggled while she was subjected to sexual assault forcibly
by the accused persons and this clearly evinces absence of consent on her part
in such sexual intercourse. [844H; 845A]
High Court rightly held that it cannot be expected to re-appraise the evidence
as a court of appeal while exercising its revisional power under s. 401 Cr.
P.C. [845E-F] 841 State of Orissa v. Nakula Sahu and Ors., AIR 1979 SC 663,
This Court hearing an appeal by special leave cannot consider and re-appraise
the evidence once again in the face of concurrent findings of facts arrived at
by all the courts below. [845F]
APPELLATE JURISDICTION: Criminal appeal No. 383 of 1991.
the Judgment and Order dated 17.7.1990 of the Orissa High Court in Crl. Rev.
No. 382 of 1986.
Das for the Appellants.
Panda for the Respondent.
Judgment of the Court was delivered by RAY, J. Special leave granted. Arguments
appeal by special leave is directed against the judgment and order dated July 17, 1990 passed by the High Court of Orissa
in Criminal Revision No. 382 of 1986 dismissing the revision and affirming the
concurrent findings of the courts below. The prosecution case in short is that
on 19th March, 1983 at about 7.p.m. while the victim girl Srimanthini Samal
(P.W. 2) was going to the house of Rama Samal, for study, the appellant Gagan
informed her that the other appellant Prafulla and others had tied her tutor
Rabi Babu in a nearby mango grove and her father was present there. Having
believed the version of the appellant Gagan, her agnatic uncle, she accompanied
him and ultimately the appellants forcibly took her to a lonely house in hills
where she was made to sit on a chair and the appellant Gagan forcibly thrushed
in her mouth a liquor bottle and she was made to drink the liquor.
both the appellants after having undressed her committed sexual assault on her.
Then she was brought to expression highway from where she was bodily lifted to
a truck standing there and left her in the truck. While the said truck was
unloading materials near village Kurujanga, the victim girl stealthily left the
truck and concealed her presence near a fence. Subsequently, one Purusottam Mohanty
rescued her and brought her to his house and then she was left to the house of
one Niranjan Rout (P.W. 8), who was distantly related to her and took shelter
till her father took her back on being 842 informed. On the information lodged
by her father (P.W. 1) in the police station of Badachana a case under sections
363 and 376 read with section 34 of the I.P.C. was registered against the
accused appellants and after investigation the I.O. sent the victim girl as
well as the appellants for medical examination and after completion of the
investigation a charge sheet was submitted against the appellants to stand
their trial. The pleas of the appellants were a total denial of the prosecution
case. The appellant Prafulla took the plea the there was a marriage proposal of
the victim girl with him but when it was disclosed that she had illicit
relationship with her tutor Rabi, he refused to marry her for which this false
case was foisted against him. The plea of the other appellant Gagan as
suggested to the informant, was that due to his previous enmity he was falsely
implicated with the alleged crime.
appellants were committed to the Court of Sessions.
learned Assistant Sessions Judge after considering the evidences on record
rejected the defence pleas, and found that the accused appellants committed
rape on the victim girl without her consent relying on the provisions of
Section 114(A) of the Evidence Act, and convicted them under section 376(2)(g)
I.P.C. and sentenced each of the accused appellants to rigorous imprisonment
for three years considering the young age of the appellants. The Assistant
Sessions Judge, however, acquitted the appellants from the charge under section
366 I.P.C. as the victim girl was more than 16 years of age at the time of
this judgment and order of conviction the appellants filed an appeal being
Criminal Appeal No. 153 of 1984 in the Court of First Additional Sessions
Judge, Cuttack. The Additional Sessions Judge
considered the pleas of the appellants as well as duly scrutinized and
appraised the evidences on record and found that the accused appellants
committed rape on the victim girl without her consent and affirmed the
conviction and sentence imposed by the Trial Court dismissing the appeal.
appellants thereafter filed a Revision Case being Criminal Revision No. 382 of
1986 in the High Court of Orissa at Cuttack against the said judgment and order passed by the First Additional
Sessions Judge, Cuttack. The High Court duly considered and
appraised the evidences of all the 9 P. Ws. including the deposition of the
victim girl Srimanthni Samal (P.W. 2), the evidence of her father (P.W. 1) as
well as the evidence of her mother (P.W. 3) and the evidences of the two
Doctors (P.W. 4) and P.W. (5) and held that the accused persons committed rap
on P.W. 2 forcibly without her con- 843 sent. It has been further found from
the reliable evidences of P.Ws. 1 and 3 that as soon as P.W. 2 met her mother,
P.W. 3, P.W. 2 told her mother about both the accused persons committing rape
on her in a solitary house and also about the accused persons taking her away
to the highway and keeping her in a truck, and corroborate the version of P.W.
2 regarding the occurrence of rape committed n her by both the accused persons.
It has been further observed that even though the P.Ws. 7 and 8 became hostile
still then their evidences can be safely relied on as the same fully
corroborates the version of P.W. 2 that on the relevant night the she, with the
help of P.W. 7 had taken shelter in the house of P.W. 8 P.W. 6 who the driver
of the truck No. ORG-4839
also stated in his evidence that the accused persons and two others took the
victim girl and left her in the truck. P.W. 6 further admitted that as he
stopped the truck at village Ambura for unloading the boulders, the girl had
stealthily left his truck and inspite of his searching her, he could not trace
her. This fully supports the version of P.W. 2 that she left the truck and
concealed herself near a fence in darkness. The learned Judge, therefore, held
"Hence, on a careful scrutiny of the evidences of the hostile witnesses P.Ws.
6 and 8 it is seen that even they corroborate the evidence of the victim gild,
P.W. 2 on material aspects of the prosecution case." In cases of rape,
generally it is difficult to find any corroborative witnesses except the victim
of the rape. It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai
v. State of Gujarat, AIR 1983 SC 753 as follows:
is not the sine qua non for a conviction in a rape case. In the Indian setting,
refusal to act on the testimony of a victim of sexual assault inthe absence of
corroboration as a rule, is adding insult to injury. Why should the evidence of
the girl or the woman who complains of rape or sexual molestation be viewed
with the aid of spectacles fitted with lenses tinged with doubt, disbelief or
suspicion? To do so is to justify the charge of male chauvinism in a male
or a woman in the tradition bound non- permissive society of India would be extremely reluctant even
to admit that only incident which is likely to reflect on her chastity had ever
occurred. She would be conscious of the danger of being ostracized by the
society or being looked down by the society including by her own family
members, 844 relatives, friends, and neighbours. She would face the risk of
losing the love and respect of her own husband and near relatives, and of her
matrimonial home and happiness being shattered. If she is unmarried, she would
apprehend that it would be difficult to secure an alliance with a suitable
match from a respectable or an acceptable family.
view of these and similar factors, the victims and their relatives are not too
keen to bring the culprit to book. And when in the face of these factors the
crime is brought to light there is a built-in assurance that the charge is
genuine rather than fabricated." The above observation has been made by
this Court relying on the earlier observations made by this Court in Rameshwar
v. The State of Rajasthan,  SCR 377 with regard to
corroboration of girl's testimony and version. Vivian Bose, J, who spoke for
the Court observed as follows:
rule, which according to the case 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 make it safe to dispense with it, must be present to the mind of
the judge, ...................The only rule of law is that this rule of
prudence must be present to the mind of the judge or the jury as the case may
be and be understood and appreciated by him or them. There is no rule of
practice that there must, in very case, be corroboration before a conviction
can be allowed to stand." In the instant appeal as had been stated
hereinbefore that P.W. 2, the victim girl has clearly stated in her evidence
that she had been taken to a solitary house in the hills by the appellant no. 1
Gagan Bihari Samal and there she was made to drink liquor and thereafter she
was undressed and forcibly subjected to sexual intercourse by both the accused
appellants one after the other. He uncontroverted testimony has been accepted
by all the courts and the courts concurrently found that she was raped without
her consent. It has been tried to be contended on behalf of the appellants that
the amended section 114(A) was brought into the Evidence Act after the
commission of the offence for which the appellants were charged and as such no
assumption can be made on the basis of this provision. This submission is of no
avail in as much as it is clearly evident that the victim girl protested and
845 struggled while she was subjected to sexual assault forcibly by the accused
persons and this clearly evinces absence of consent on part of the victim girl
in such sexual intercourse apart from the legal presumption that follows from
the provisions of Section 114(A) of the Evidence Act.
learned counsel on behalf of the appellants further tried to argue on the basis
of some minor discrepancies in the evidences of P.W. 2 that the prosecution
case was a false one and it has been foisted on the appellants due to enmity
and also due to accused Prafulla, one of the appellants, having disagreed to
marry the victim girl. The courts below have clearly found that the defence
case was not at all sub-stantiated by any cogent evidence. So this contention
is not at all tenable.
apropos to mention here the observation made by this Court in the case of State
of Orissa v. Nakula Sahu and Ors., AIR 1979 SC 663 which are set-out herein:
the revisional power of the High Court under Section 439 read with section 435
is as wide as the power of Court of appeal under Sec. 423 of the Code, it is
now well settled that normally the jurisdiction of the High Court under Section
439 is to be exercised only in exceptional cases when there is a glaring defect
in the procedure or there is a manifest error on a point of law which has
consequently resulted in flagrant miscarriage of justice. Inspite of the wide
language of Section 435, the High Court is not excepted to act under Section
435 or Section 439 as if it is hearing an appeal." The High Court of Orissa
referred to the said observation and rightly held that the High Court cannot be
expected to re-appraise the evidence as a court of appeal. This Court hearing
an appeal by special leave cannot consider and re- appraise the evidences once
again in the face of concurrent findings of facts arrived at by all the courts
the reasons aforesaid we dismiss the appeal and uphold the conviction and
sentence as found by the High Court.