State of Orissa Vs. Damburu Naiko & Anr.
EmailAppeal: Criminal Appeal No.567 of 1983
(Arising out of SLP (Crl.) No.2741 of 1982)
(Arising out of SLP (Crl.) No.2741 of 1982)
Petitioner: State of Orissa
Respondent: Damburu Naiko & Anr.
Apeal: Criminal Appeal No.567 of 1983
(Arising out of SLP (Crl.) No.2741 of 1982)
(Arising out of SLP (Crl.) No.2741 of 1982)
Judges: KULDIP SINGH & K. RAMASWAMY, JJ.
Date of Judgment: Mar 31, 1992
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860:
Sections 366 and 376 read with section 34 – Kidnapping and gang rape of village girl in broad day light – Victim identifying the accused – Her evidence, if inspires confidence to be truthful, need not be corroborated – Acquittal by High Court set aside.
Held:
The High Court acquitted the respondents on the grounds, namely, that PW.1 identifying these respondents would not be relied on and that there is no corroboration to her evidence. When there is a gang rape there could be several injuries on the person of the victim which are absent. Therefore she was a consenting party. We are at a loss to understand the reasoning of the High Court. …. Though PW.1 was a stranger to the accused is the victim of dastardly offences of kidnapping and gang rape and it was done in broad day time. Therefore, when she was kidnapped into forest by the accused she had opportunity to see them, though later her eyes were closed with a piece of cloth. When she was made to lie down on the ground at the threat of her life and gang rape was committed, she was absolutely helpless. The medical evidence amply corrobo- rates that she had injuries on her private parts and so there is yet enough resistance put up by her to the gang rape committed one after the another. When it was done at the threat of her life, she cannot be expected to go on resisting except to resign to her fate and succumb to their assault. … It is not necessary that there would be corroboration to the evidence of the victim of rape. If her evidence inspires confidence to be truthful that itself would be sufficient to convict the accused. We need not see corroboration to the evidence of PW.1. She was a simple village girl and she will not leave out her own assailants and implicate falsely other innocent persons with the allegation that she was raped by them. Even if we seek for corroboration the injuries on her private parts; medical evidence of the doctor and her first information report provide such corroboration. We have carefully scanned her evidence. We wholly accept her evidence as truthful. The High Court also did not make any attempt to disbelieve her evidence on its own merits. In these circumstances the casual and mechanical approach, without regard to human probabilities, and the consequent acquittal by the High Court resulted in gravemiscarriage of justice. The approach adopted by the High Court shall not be allowed to stand for a moment. The appeal is accordingly allowed. (Para 2)
JUDGEMENT:
K. RAMASWAMY,J.:
1. The two respondents Dambaru Naiko (A1) and B. Sankara Rao (A2) and two others were charged in Sessions Case No.6/78 of Asst. Sessions Judge, Jeypore for offences under sections 366/34 and 376 read with s. 34 I.P.C. kidnapping and committing rape of Manguri Bhotruni, PW.1 on October 21, 1978 at about 4.00 p.m. By judgment dated November 26, 1978 the trial court convicted the respondents and sentenced themto undergo rigorous imprisonment for a period of three years on each count and the sentences were directed to run concurrently. He acquitted the other two which became final. On appeal it was confirmed by the Sessions Court. In Crl. Revision No.152 of 1981 by judgment dated April 19, 1982, the High Court acquitted them of the charges. Thus this appeal by special leave.
2. The case of the prosecution is that on the fateful day the victim Bhotruni alongwith other girls, PWs. 2 to 4 went to Papadahandi to witness Dasahara festival. At about 4.00 p.m., while they were returning home, PW.1, the victim was ahead of them and when they reached inside the forest, the appellants and two others gagged the mouth of PW.1 and kidnapped into the forest; covered her eyes with a piece of cloth and threatened to kill her if she would raise cries. They made her to lie down on the ground and raped her one after another. PWs. 2 to 4 ran back Papadahandi and reported, to the police on duty in the festival, of the incidence and PW.5, the constable came alongwith them. They found the victims eyes covered with a piece of cloth and that she was crying. She was taken to Papadahandi. She laid the complaint (Ext.P.1). The accused were arrested on October 31, 1977 and in the identification parade conducted by the Executive Magistrate, PW.13, PW.1 to 4identified the accused, PW.1 identified the respondents and one another, PW.2 to 4 identified some as per Ex.P10 report the details of which are not necessary as it is admitted by them that before the identification parade was conducted PWs.2 to 4 had opportunity to see the accused. So the trial court did not rely upon the evidence of PWs.2 to 4. But it accepted the evidence of PW.1, the victim and convicted the respondents. The High Court acquitted the respondents on the grounds, namely, that PW.1 identifying these respondents would not be relied on and that there is no corroboration to her evidence. When there is a gang rape there could be several injuries on the person of the victim which are absent. Therefore she was a consenting party. We are at a loss to understand the reasoning of the High Court. The vehement contention of the learned counsel for the respondents that the reasoning given by the High Court is cogent and needs no interference absolutely lacks substance. Though PW.1 was a stranger to the accused is the victim of dastardly offences of kidnapping and gang rape and it was done in broad day time. Therefore, when she was kidnapped into forest by the accused she had opportunity to see them, though later her eyes were closed with a piece of cloth. When she was made to lie down on the ground at the threat of her life and gang rape was committed, she was absolutely helpless. The medical evidence amply corrobo- rates that she had injuries on her private parts and so there is yet enough resistance put up by her to the gang rape committed one after the another. When it was done at the threat of her life, she cannot be expected to go on resisting except to resign to her fate and succumb to their assault. PW.1 also identified the respondents in the identification parade. Since there is no appeal against the others, we need not go into their acquittal. But suffice to state that she had enough opportunity to identify the persons who committed rape on her. It is not necessary that there would be corroboration to the evidence of the victim of rape. If her evidence inspires confidence to be truthful that itself would be sufficient to convict the accused. We need not see corroboration to the evidence of PW.1. She was a simple village girl and she will not leave out her own assailants and implicate falsely other innocent persons with the allegation that she was raped by them. Even if we seek for corroboration the injuries on her private parts; medical evidence of the doctor and her first information report provide such corroboration. We have carefully scanned her evidence. We wholly accept her evidence as truthful. The High Court also did not make any attempt to disbelieve her evidene on its own merits. In these circumstances the casual and mechanical approach,without regard to human probabilities, and the consequent acquittal by the High Court resulted in gravemiscarriage of justice. The approach adopted by the High Court shall not be allowed to stand for a moment. The appeal is accordingly allowed. The judgment of the High Court and the order of acquittal of the respondents is set aside. The judgments and convictions and sentences recorded by the trial court and affirmed by the Sessions Court are restored and the respondents should surrender and serve out the sentences.
1. The two respondents Dambaru Naiko (A1) and B. Sankara Rao (A2) and two others were charged in Sessions Case No.6/78 of Asst. Sessions Judge, Jeypore for offences under sections 366/34 and 376 read with s. 34 I.P.C. kidnapping and committing rape of Manguri Bhotruni, PW.1 on October 21, 1978 at about 4.00 p.m. By judgment dated November 26, 1978 the trial court convicted the respondents and sentenced themto undergo rigorous imprisonment for a period of three years on each count and the sentences were directed to run concurrently. He acquitted the other two which became final. On appeal it was confirmed by the Sessions Court. In Crl. Revision No.152 of 1981 by judgment dated April 19, 1982, the High Court acquitted them of the charges. Thus this appeal by special leave.
2. The case of the prosecution is that on the fateful day the victim Bhotruni alongwith other girls, PWs. 2 to 4 went to Papadahandi to witness Dasahara festival. At about 4.00 p.m., while they were returning home, PW.1, the victim was ahead of them and when they reached inside the forest, the appellants and two others gagged the mouth of PW.1 and kidnapped into the forest; covered her eyes with a piece of cloth and threatened to kill her if she would raise cries. They made her to lie down on the ground and raped her one after another. PWs. 2 to 4 ran back Papadahandi and reported, to the police on duty in the festival, of the incidence and PW.5, the constable came alongwith them. They found the victims eyes covered with a piece of cloth and that she was crying. She was taken to Papadahandi. She laid the complaint (Ext.P.1). The accused were arrested on October 31, 1977 and in the identification parade conducted by the Executive Magistrate, PW.13, PW.1 to 4identified the accused, PW.1 identified the respondents and one another, PW.2 to 4 identified some as per Ex.P10 report the details of which are not necessary as it is admitted by them that before the identification parade was conducted PWs.2 to 4 had opportunity to see the accused. So the trial court did not rely upon the evidence of PWs.2 to 4. But it accepted the evidence of PW.1, the victim and convicted the respondents. The High Court acquitted the respondents on the grounds, namely, that PW.1 identifying these respondents would not be relied on and that there is no corroboration to her evidence. When there is a gang rape there could be several injuries on the person of the victim which are absent. Therefore she was a consenting party. We are at a loss to understand the reasoning of the High Court. The vehement contention of the learned counsel for the respondents that the reasoning given by the High Court is cogent and needs no interference absolutely lacks substance. Though PW.1 was a stranger to the accused is the victim of dastardly offences of kidnapping and gang rape and it was done in broad day time. Therefore, when she was kidnapped into forest by the accused she had opportunity to see them, though later her eyes were closed with a piece of cloth. When she was made to lie down on the ground at the threat of her life and gang rape was committed, she was absolutely helpless. The medical evidence amply corrobo- rates that she had injuries on her private parts and so there is yet enough resistance put up by her to the gang rape committed one after the another. When it was done at the threat of her life, she cannot be expected to go on resisting except to resign to her fate and succumb to their assault. PW.1 also identified the respondents in the identification parade. Since there is no appeal against the others, we need not go into their acquittal. But suffice to state that she had enough opportunity to identify the persons who committed rape on her. It is not necessary that there would be corroboration to the evidence of the victim of rape. If her evidence inspires confidence to be truthful that itself would be sufficient to convict the accused. We need not see corroboration to the evidence of PW.1. She was a simple village girl and she will not leave out her own assailants and implicate falsely other innocent persons with the allegation that she was raped by them. Even if we seek for corroboration the injuries on her private parts; medical evidence of the doctor and her first information report provide such corroboration. We have carefully scanned her evidence. We wholly accept her evidence as truthful. The High Court also did not make any attempt to disbelieve her evidene on its own merits. In these circumstances the casual and mechanical approach,without regard to human probabilities, and the consequent acquittal by the High Court resulted in gravemiscarriage of justice. The approach adopted by the High Court shall not be allowed to stand for a moment. The appeal is accordingly allowed. The judgment of the High Court and the order of acquittal of the respondents is set aside. The judgments and convictions and sentences recorded by the trial court and affirmed by the Sessions Court are restored and the respondents should surrender and serve out the sentences.
