State of Orissa Vs.
Sukru Gouda  INSC 2188 (16 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of S.L.P. (Crl.) No.4833 of 2007) State of Orissa ...Appellant Versus Sukru
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the Division Bench of the Orissa High
Court directing acquittal of the respondent of the charges under Section 376 of
the Indian Penal Code, 1860 (in short the `IPC') and Sections 3 to 5 of the
Scheduled Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989 (in
short the `Atrocities Act'). The respondent No.1 filed an appeal before the
High Court questioning his conviction as recorded by learned Special
Judge-cum-Sessions Judge, Koraput, Jeypore.
version sans unnecessary details is as follows:
On the basis of an
FIR lodged on 4-9-1993 by Dasamu Bhatra (P.W.4) alleging that on the said day
at 1.00 p.m while his wife (P.W.1) was collecting fire wood in a nearby jungle
known as 'Dobari Jungle', the respondent who was collecting cow dung in the
said jungle told her that a big piece of wood was lying nearby in the jungle.
P.W.1 however refused to go there. It was alleged that thereafter the
respondent forcibly pulled her down on the ground and in spite of her
resistance committed rape on her inside that jungle by raising the saree of
P.W.1 and also removing the pad which P.W.1 was using as she was having her
monthly menstruation. While the appellant was committing the crime, Lachhminath
Bhatra (PW2) arrived at the spot, seeing whom the appellant left P.W.1 and fled
away. Due to rape on her P.W.1 had profused bleeding. She reported the matter
to her husband P.W.4 who lodged the report before police at 6 p.m., the very
day. On the basis of such report, G.R. Case No. 383 of 1993 was registered.
After investigation prosecution submitted charge sheet against the respondent
who faced the trial.
The plea of the
respondent was complete denial. He further stated that a day prior to the
alleged occurrence, he had dispute with informant P.W.4 and his wife - the
alleged victim (P.W.1) regarding landed property which had culminated in a
quarrel and in order to harass the respondent the case had been falsely foisted
To prove its case,
prosecution examined as many as eight witnesses and exhibited eleven documents.
Two witnesses were examined by the defence.
P.W.1 is the alleged
victim. She corroborated the FIR story. Lachhminath Bhatra (PW2) who was stated
to have seen the alleged occurrence.
(P.W. 3) a resident of the village and was near the spot of occurrence before
whom P.W.1 was stated to have narrated the incident soon thereafter. P.W.4 was
Dasamu Bhatra - P.W.1's husband - before whom P.W.1 stated to have narrated the
alleged incident whereafter he hadreported the matter to the police. Damuru
Pujari (P.W.5) is another person before whom also P.W.1 had narrated the
alleged incident. The Lady Assistant Surgeon (P.W.6) who had examined the
alleged victim on police requisition. S. Venkataswamy (P.W.7) the A.S.I of
Police Kosagumuda Outpost before whom P.W.4 had lodged the FIR and was one of
the investigating officers. O.I.C. of Kodinga P.S. (PW 8) the other investigating
officer who had submitted charge sheet in the case.
Out of the defence
witnesses, Laikhana Bhatra (DW 1) who deposed about the dispute between the
appellant and PW 4 over excavation of a drain on the land of the appellant and
the quarrel ensuing thereafter. Hari Mirgan (DW 2) who deposed about the land
dispute which was reported to him by the appellant.
counsel for the appellant-State referred to the evidence of PWs 1&2 and
submitted that the High Court was not justified in directing acquittal. No
reason has been indicated to discard their evidence. On surmises and
conjectures the High Court has directed acquittal.
is no appearance on behalf of the accused in spite of service of notice.
bare reading of the High Court's order shows a complete non application of
mind. Some of the conclusions are clearly contrary to the law as laid down by
this Court. The High Court's conclusions are not only abrupt but also it
clearly indicate the non application of mind. The reasoning is contained in one
paragraph i.e. Para 11 reads as follows:
perusing the statements of the doctor and the other prosecution witnesses, we
are unable to accept the prosecution story without a pinch of salt. Here is a
case where excepting P.W.1and P.W.2 the person who claimed to have seen the
occurrence, there is no other eye-witness. The medical evidence contradicts the
ocular statement of P.W.2. If P.W.2's statement is believed, a suspicion arises
with regard to the conduct of P.W.1.
Admittedly PW.1 was
an able-bodied tribal lady, capable of taking care of herself. It was natural
that she would have resisted to the best of her ability if sexual intercourse
was being committed on her against her consent.
P.W.2's evidence does
not reveal that any resistance by P.W.1 was found by him. In fact, P.W.2 walked
inside the jungle when the crime as alleged was in the process. Law is well
settled that it is not possible for a single man to commit sexual intercourse
with a healthy adult female in full possession of her senses against her will.
If there would have been any resistance by P.W.1, at least some scratches or
bruises would have been found either on her body or the body of the appellant.
The medical evidence clearly reveals that no external injury was detected. Though
it was alleged that P.W.1 was raped during her menstrual period and that there
was profuse bleeding due to rape, the wearing apparel of PW 1 did not contain
any blood stain, as would appear from the chemical examination report (Ext.
11). This also throws a cloud of suspicion on the truthfulness of the
prosecution case. A cumulative effect of the medical evidence coupled with the
oral testimony throws a doubt on the correctness of the allegation of rape put
forward by PW 1 in her statement in Court. Thus the assessment of the entire
evidence in the case leads us to the conclusion that prosecution has not
succeeded to prove its case beyond all doubts. We have therefore no hesitation
to set aside the conviction and sentence passed against the appellant by the
emphasis) The conclusions are not only confusing but border non absurdity. It
baffles us as to why High Court says that "law is well settled that it is
not possible for a single man to commit sexual inter course with a healthy
adult female in full possession of her senses against her will." There is
not even a single decision which says so. The presumptuous conclusion is that
PW 1 was an able bodied tribal lady capable of taking care of herself. On that
basis the High Court has come to this conclusion is not fathomable. To add to
the confusion the High Court itself noticed that there were two contradictory
stands. One was that no such incidence had taken place and this was a case of
false implication; other was that the act was with consent. Such irreconcilable
stand should not have found favour with the High Court. The High Court observed
that except PWs 1 & 2, there were no other eye witnesses, and therefore,
prosecution version was not acceptable. To say the least, the conclusion is not
only contrary to law laid down by this Court, but also shows scant regard to
law declared by this Court.
we part with the case, we note with lot of concern that notwithstanding series
of decisions by not only the Orissa High Court but also of this Court that name
of victim should not be indicated in the judgment, the High Court has done the
reverse. This speaks volumes of judicial indiscipline.
would have set aside the order of the High Court and restored that of the trial
court. But it is considered appropriate to remit the matter back to the High
Court to hear the appeal afresh for disposal of the same as the
accused-respondent has not appeared before the court in spite of notice,
keeping in view the correct legal principles.
appeal is disposed of accordingly.
(Dr. ARIJIT PASAYAT)
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