ANAM SWAIN Vs. STATE

JUDGEMENT

(1.) This is a reference made under Section 397, Criminal P. C., by the Additional Sessions Judge, Cuttack, recommending that the unanimous verdict of 'guilty' returned by the Jury, in respect of a charge under Section 376, I. P. C., should be set aside.

(2.) The prosecution case, briefly, is this. On the night of 12-2-1951, P.W. 7 Bimali Dei, an unmarried girl was sleeping in her house in village Patkura in P. S. Tikhiri of Cuttack district, with her mother (P.W. 5), her sister (P.W. 6) and her younger brothers. At midnight she was carried away by some persons who made a forcible entry into the house, and was carried-to a field about, 600 yards away from her house and there she was raped by the four accused persons. After she had been raped twice by each of the accused persons, she was brought by them and left in the backyard (bari) of her house in a prostrate condition. Meanwhile her mother and sister had been aroused by the cries of a young baby and P.W. 5 called out P.W. 7 but found her missing. A little later P.W. 5 could hear the moans of P.W. 7 who had by then been left in the backyard of the house. The girl was helped into the house by her mother and sister and sometime later she disclosed what had happened to her mother. The father of the girl was at that time absent from the village, and on receiving information about the occurrence returned to the village on the 14th evening. An attempt was made by the villagers to hush up the matter by persuading the accused to pay compensation but as no settlement could be arrived at, P.Ws. 3 and 7 went to the Police Station where the girl (P.W. 7) lodged First Information on 18-2-1951. On 19-2-1951, she was examined by P. W, 1, a doctor, who noticed some abrasions on her right and left scapula and buttocks. He also noticed a laceration of the fourchettes & it was gaping. The hymen was ruptured and was bleeding on touch. The mucus membrane of the vulva was inflamed, tender, and signs of recent tearing were found. The accused pleaded a complete denial of the occurrence and stated that the case had been foisted on them at the instigation of P.W. 4.

(3.) The learned Additional Sessions Judge clearly charged the Jury for an acquittal. He criticised the prosecution from all points of view. He indicated, in unmistakable terms, that the story given out by the complainant was hard, to believe. He pointed out what in his opinion were material contradictions and discrepancies between the version given by the girl in the F.I.R. (Ext. 5) and her evidence in Court, saying that they could not be brushed away as being of a minor character. The learned Judge then referred to the contradiction between the girl's evidence and her mother's evidence and her sister's evidence. Referring to the evidence of the doctor he said that the injuries pointed out by the doctor were as consistent with a case of adultery as with rape, though it was nobody's case that there had been an offence of adultery as admittedly the girl was unmarried. The injuries noticed on the person of two of the accused persons were, in the opinion of the learned Judge, sufficiently explained and not such as to cause any suspicion against them. He did not choose to place any reliance upon the evidence of the doctor with regard to the age of the girl. On this part of the case the learned Judge told the Jury that the evidence of the doctor was "no surest guide" in the absence of the Ossification test. He also refer red to the defence evidence and characterised it unconvincing. The accused had been charged Under Sections 457 and 376, I. P. C. The jurors returned a verdict of 'guilty' in respect of the charge under Section 376 and 'not guilty' on the charge under Section 457. The learned Sessions Judge refused to accept the verdict in respect of Section 376 and has made the present reference to this Court, as, in his opinion, the two different verdicts of the Jury are inconsistent and "not mutually tenable", and there was no evidence at all to sustain any of the charges against any of the accused persons.