ADAM TIRKY Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal from jail has been preferred assailing the conviction of the appellant under sections 457 and 376, I.P.C. and sentences to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for one month mote under section 376, I.P.C. and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2001- in default to undergo rigorous imprisonment for one month more under section 457, I.P.C., with direction that both the sentences of imprisonment would run concurrently.

(2.) The appellant was charge sheeted along with another Chhotu Mahanandia but the latter having absconded the appellant alone faced the trial on the allegation that at the midnight of 12.5.1986, four persons entered into the room where the victim lady P.W. 5 was sleeping, through the open space available in between the thatch and the height of wall of the room and successively gang raped her. It is the prosecution case that the victim lady was staying in the house of P.W. 1 and was working as a labourer at Rajgangpur. Her husband had deserted her and she was putting up in one room along with another working woman who was not present during the night of occurrence and neither her child was also there. She woke up because of the sound caused due to entry of the appellant and others and found the appellant to beholding a knife. At the point of knife she was first raped by the absconding accused Chhotu Mahanandia and thereafter by all others in spite of her protest and that due to her protest she received injury on her wrist. After the act was committed, three of the persons including the appellant escaped in the same route as they had come and the absconding accused went out through the entrance door when she opened it. She immediately narrated the occurrence to P.W. 1 and his wife in whose house she was staying as a tenant and named the appellant as also Chhotu Mahanandia as among the persons who had violated her. She also narrated the incident to the villagers and on their advice went to the police station where at 11 a.m. next day she orally lodged the F.I.R. on which investigation was taken up. Her wearing apparels were seized as also a half pant, a chadi and a towel supposed to have been left back by the miscreants, and her broken bangles. The seized articles were sent for clinical examination. P.W. 5 was also sent for medical examination which was done the same day by P.W. After completion of investigation, charge-sheet was submitted and the appellant was made to stand trial. The plea of .the appellant was complete denial of the occurrence. The learned Sessions Judge found the evidence led by the prosecution to be acceptable to sustain the charges and hence convicted the appellant and sentenced him as above.

(3.) Mr. Das, learned counsel for the appellant, has made a yeomans effort in assailing the judgment contending that in view of the evidence of the victim lady herself and the medical evidence, there could not be any question of rape committed on her and that the appellant is entitled to acquittal. It is his submission firstly that the medical evidence completely rules out the possibility of rape and secondly that even if any such act was committed, yet there was no evidence of the appellant being one of the participants in the crime, his identity having never been properly established. Developing, he has placed specific reliance on the evidence of the P.W. 4 who had examined P.W. 5 and had found no injury on her private parts or around the same, and on the fact that her vaginal swab did not show detection of any spermatozoa. The pubic hair was not matted and there was absence of semen on the vagina or its region and that the overall opinion of the doctor was that no sign of rape was noticed. Ext. 3 is the communication by P.W. 4 to the 1.0. on 19.5.1986, i.e. six days after the examination wherein he stated that is the patient was neither a virgin nor any spermatozoa was detected from her vaginal canal and no injury was noticed at the vaginal canal or on the private parts, and she was capable of undergoing sexual act without any difficulty it was not possible to say that she had undergone recently any sexual act. It is the submission of the learned counsel for the appellant that since it is the case of P.W. 5 that she was successively raped by four persons and that Chhotu Mahanandia committed rape twice; it would have been impossible, if the facts were true, that the vaginal swab would not show presence of spermatozoa in the vaginal canal, that semen would not be detected in the vaginal or around it or that the pubic hair would not be malted. Coupled with this, he also places reliance on the fact that though P.W. 5 made specific statement that her saree and saya, M.Os. IV and V respectively, had been stained with semen, yet their chemical examination did not show presence of any semen or blood. According to Mr. Das, while such medical evidence demolishes the story of rape, further the very identity of the appellant is not established as it was P.W. Ss case that the room was completely dark and she had extinguished the Dibri (as open lamp) which was burning earlier and the act committed on her was in darkness and that she had been able to identify the appellant only because the persons were talking among themselves and were uttering each others names. She had specifically admitted in her cross-examination that the faces of the assailants were not clearly visible as it was dark. It is also pointed out that in the F.I.R. she had stated that she had been able to identify the appellant and Chhotu Mahanandia.