http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: GAGAN BIHARI SAMAL AND ANR.

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT09/07/1991

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) AGRAWAL, S.C. (J)

CITATION:  1991 SCR  (2) 839        1991 SCC  (3) 562  JT 1991 (3)    63        1991 SCALE  (2)89

ACT:      Constitution   of  India:  Article  136-Special   leave petition-Concurrent   findings  of   facts-Re-appraisal   of evidence-Whether could be considered.      Indian    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.      Evidence   Act,  1872:  S.  114A-Evidence-Victim   girl subjected to sexual assault forcibly-Protest and struggle by victim-Absence of consent-Presumption of.      Criminal   Procedure  Code,  1973:  S.   401-Revisional jurisdiction-High Court-Whether could reappraise evidence.

HEADNOTE:      The  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. After  completion of the investigation, a charge  sheet  was submitted  and the appellants were tried for  the  aforesaid offences.      The  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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

    On dismissal of their appeal against the conviction and sentence by the Addl. Session Judge, the appellants filed  a revision application before the High Court.      The  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.      Dismissing the appeal, this Court,      HELD: 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,  [1952] SCR 377, relied on.      2. In 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]      3. 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]      4.  The  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, relied on.      5. 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]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION: Criminal  appeal  No. 383 of 1991.      From  the  Judgment and Order dated  17.7.1990  of  the Orissa High Court in Crl. Rev. No. 382 of 1986.      Janaranjan Das for the Appellants.      A.K. Panda for the Respondent.      The Judgment of the Court was delivered by      RAY, J. Special leave granted.  Arguments heard.      This  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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.   Thereafter 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.      The appellants were committed to the Court of Sessions. The  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 occurrence.      Against  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.      The  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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:          "Corroboration  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          dominated society.           A  girl  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.          In  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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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, [1982] SCR  377  with  regard  to corroboration of girl’s testimony and version.  Vivian Bose, J, who spoke for the Court observed as follows:          "The 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. The  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.      It  is 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:          "Although  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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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 below.      For  the  reasons aforesaid we dismiss the  appeal  and uphold  the  conviction and sentence as found  by  the  High Court. R.P.                                       Appeal dismissed.                                                        846