RANJAN KUMAR NAG Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE appellants have appealed against the order of conviction and sentence passed by the Assistant Sessions Judge, Jeypore in Sessions Case No. 15 of 1986 dated 24 -2 -1987. Each of the appellants was sentenced to undergo R.I. for 10 years Under Section 376 IPC, 5 years Under Section 366 IPC and one year Under Section 506 IPC with a direction that all the sentences are to run concurrently.

(2.) THE facts of the prosecution case in short are as follows : On 25 -2 -1986 the prosecutrix Zarina Bagh had been to Footpad to attend the religious congregation of persons espousing Christianity. In the evening she along with one Bibilina Bagh came to the house of one Adam to get some gruel. While they were returning from the house of Adam to the place of their stay by the hospital road, the present appellants met them on the way and asked them from where they had come. The time then was 8. 30 p. m. in the evening. Raman, the present appellant No. 1 tried to drag Zarina to a place nearby the tank and when Zarina raised alarm, he threatened her with a knife and quieted her. Then he dragged her to a place near the tank and ravished her. The appellant No. 2. Ashraf thereafter committed same act on Zarina and when a police van was seen approaching on the road, these 2 appellants ran away. It is also the case of the Bibilina that after Zarina was dragged to a place near the tank by Ranjan accompanied by Ashraf, she ran to the basti where Adam's house is situated and told the ladies about it but the ladies advised her to report the matter to the police. The occurrence took place on 25 -2 -1986 at 8. 30 p. m. as already stated. On the very same day immediately after the occurrence, F.I R. was lodged at the police station which leads to filing of the G. R. Case Under Section 506/366/376, IPC. The F.I.R. was lodged by the victim girl, Zarina Bagh who was examined by the doctor on the same day.

(3.) THE statements of defense witnesses are of no assistance to the accused persons. DW 1, the mother of Ashraf stated that Ashraf was not at Kotpad on the date of occurrence and went to Jeypore and returned on 30 -2 -1986. DW 2 is the owner of a betel shop who deposed that on 25 -2 -1986 at about 8. 00 p. m. accused Ranjan came to his shop for purchase of bete and in the next morning he also came to purchase betel and ha closes his betel shop at 9. 00 p. m. everyday. I do not put any reliance on the statement of this witness who stated that on the next day Ranjan had been to his shop for purchasing betel. As per the prosecution evidence, on 26 -2 -1986 morning Ranjan was at the police station. He seems to be a neighbor of Ranjan and I do not place any reliance on the statement of this witness. As already stated medical examination report shows that semen was detected on the green say and wearing cloth called Lengthy and blood was also marked on Lenguthi. Serological report also shows that saya had stains of semen and blood. As is revealed from the evidence of Zarina while Ranjan and his friend raped her, she was wearing saree and saya. Ext, 1 is the report of medical examination of Zarina Bagh which is suggestive of commission of rape. The report shows that semen stains were present on the valve and also on the saya which had dried and patches of dust were present on the saree and hairs of the victim. The girl is shown to be 16 years of age. Zarina was examined at 11. 30 p. m. on 25 -2 -1986 but Ranjan was examined at 10. 00 a. m. on 27 -2 -1986, it was difficult to get anything after lapse of 36 hours. All that were found on his male organ are injuries over frenulucer or prepuce. Mr. S. P. Misra, learned counsel for the appellants while arguing the case placing much reliance on the facts that since Zarina had not raised any voice in protest, of the act, argued that it could not be said that sexual assault was committed against her wish. This assertion is not born out on facts. From the evidence led by the prosecution, it is shown that the evidence of PWs 3 and 4 are mutually corroborative as both of them stated that when Ranjan tried to take away Zarina from the road towards tank, both of them raised voice and shouted for help, but they had been quitened on the point of knife and Zarina had to submit to their cruel wishes. Section 114 -A of the Indian Evidence Act which was brought into the Indian Evidence Act in 1872 by Act 43 of 1983 and came into effect with effect from 25 -12 -1983 has brought about a radical change in law relating to rape so far as evidence thereof is concerned. Earlier, a prosecutrix or victim of rape was not strictly speaking regarded as art accomplice inasmuch as on uncorroborated testimony of her, conviction rarely based. Accordingly prudence required corroboration in earlier cases. But this position has been statutorily superseded by inserting Section 114 -A to the Indian Evidence Act. If the sexual intercourse is proved and the victim states that she had no consent, accused is to prove that prosecutrix was a consenting patty. The evidence of PWs 3 and 4 is quite specific on the point that Zarina had no consent to sexual intercourse and the medical evidence is absolutely clear that sexual intercourse had been committed to Zarina. Therefore, it is for the accused to prove that she was a consenting party.