REPORTABLE

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 Gouda …Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge 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

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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.

3. Prosecution 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

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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 against him.

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.

Lachhma Bhatrani (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 had

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reported 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.

4. Learned 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.

5. There is no appearance on behalf of the accused in spite of service of

notice.

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6. A  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:

“11 After 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

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aside the conviction and sentence passed against the appellant by the court below.”

(Underlined for 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.  

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7. Before  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.

8. We 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.

9. The appeal is disposed of accordingly.

                               ………….....................................J. (Dr. ARIJIT PASAYAT)              

………….……….........................J.          (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 16, 2008

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