BIJAYA KUMAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) Originally charge-sheet was submitted against seven accused including the present appellants alleging appellant No. Ito have raped P.W. 2 and appellant Nos. 2 and 3 to have kept guard over the place whereas out of the other four accused whose case was split up because of their absconding, three to have raped P.W. 1 and one to have kept watch along with appellant Nos. 2 and 3. Because of splitting up of the case, only the present appellants faced trial under sections 3761366/457/506/34 I.P.C. On being convicted under all the sections, the appellant No. 1 was sentenced under section 376 I.P.C. to rigorous imprisonment for ten years and fine of Rs. 100.00, in default to undergo rigorous imprisonment for a further period of fifteen days. Likewise, appellant Nos. 2 and 3 were also convicted and sentenced to rigorous imprisonment for ten years each and fine of Rs. 100.00, in default to undergo rigorous imprisonment for fifteen days more. Though they were also convicted of the other charges, yet no separate sentence there under was passed. The prosecution case is revealed from the F.I.R. and the evidence of P.Ws. 1 and 2. The facts are that P.Ws. 1 and 2 along with P.Ws. 3, 4 and 5 and many others were working as daily labourers under a contractor at a site and were staying in hutments constructed by the contractor. Since the work site was nearer to the village of the appellants, they and many others used to come to the site to see them work. On the night of the occurrence i.e. at midnight of lst/2nd of March, 1989, the appellants and the absconding accused came to their hutment and appellant NO.1 opening the Tatidoor of the same entered inside along with some others with torchlights and knives for which the inmates woke up. They threatened the inmates with knife and forcibly dragged P.Ws. 1 and 2 outside. Out of the three absconding accused, Bharat Chandra Sahudragged P.Ws. 1 and raped her. Appellant No.1 dragged P.W. 2 to the opposite direction and raped her. The appellant Nos. 2 and 3 and Padmacharan were keeping guard. After committing the act, the accused persons went away. In the morning police had come to the site in connection with some quarrel and seeing them there, P. W. 1 lodged oral information with P.W. 10. Her information was reduced to writing; explained to her and her thumb impression taken. Thereafter investigation was taken us the wearing apparels of P.Ws. 1 and 2 were seized and they were sent for examination by P.W.8, a Lady Assistant Surgeon of Kaniha Hospital. Since the report of medical examination did not agree with the version of the victims, they were brought to Cuttack for examination by the Head of Department of F.M.T., P.W. 12, who examined them on 4/3/1989. The wearing apparels of the victims had been sent for chemical examination which yielded the result of presence of semen and blood. The appellants had been arrested in course of the investigation and their wearing apparels were also seized and sent for chemical examination. I Appellant No. 1 had also been medically examined by P.W. 9. After completion of investigation charge-sheet was submitted. During the trial the appellants pleaded denial with appellant No.1 further taking the stand that the contractor under whom P.Ws. 1 and 2 were working had inimical relationship with him for which the case had been falsely foisted.

(2.) The prosecution, to establish its case, examined the victim girls as P.Ws. 1 and 2 and besides examined P.Ws. 3,4 and 5 as the immediate pre-occurrence witnesses who were the inmates of the hut. P.Ws.6 and 7 are inconsequential witnesses and P.Ws. 10 and 11 were the investigating officers who had investigated into the case. P.W.12 as has already been soon was the Professor and H.O.D. of F.M.T., S.C.B. Medical College-Hospital, Cuttack who had examined P.Ws. 1 and 2. P.W. 8 is the medical officer who had first examined both the victims and had opined uniformly in respect of them that no spermatozoa was noticed in the vaginal swab, no injury was detected over any part of their body including the private parts, nothing was found under the finger nails and that their hymen was intact. It is the evidence of P.W. 11 that as the medical report did not agree with the oral evidence, he had sent P.Ws. 1 and 2 to P.W. 12 for examination. The report of examination by P.W. 12 disclosed a completely different picture from what had been stated by P.W. 8. It is of profit to extract at length the opinion given by him regarding P.W. 2:On examination of the private part I found blood stains dried and fresh over the public reason perineum and inner sideof4 sizes both the thighs. Blood was seen oozing out from the vaginal outlet, which was menstrual blood. On wiping out these blood stains and menstrual blood, blood clots were seen sticking into the injury margins, which on being wiped out resulted in fresh oozing of blood from these injuries was traumatic bleeding. Hymen was found tom at 7 Oclock and 3 Oclock positions. The tears of the hymen were associated with marked inflammation and oedema of the margins. There was marked bruising of the adjacent labia minora more evident towards left side and margins of labia majora and vaginal outlet with dark brownish colouration. Al cm long tear was also found on the posterior forchettee extending to the perinium, the margin of which was covered with sticking blood clots along with inflamation and oedema. Vaginal wall also had areas of bruising. There was pain and tender ness during vaginal examination and the vagina admitted only one finger with difficulty. Plucked pubic hair and vaginal swab were collected for laboratory examination. A sample of vaginal fluid examined microscopically revealed:

(3.) Mr. Nayak apart from challenging the conviction of appellant No.1 also tried to emphasise the fact, so far as appellant Nos. 2 and 3 are, concerned, of their having not taken part in sexual assault on P.Ws. 1 and 2 and urged that they are entitled to acquittal as the only thing stated against them is that they had kept guard. From the evidence of P.W. 1 it is seen that while she had been dragged, they were outside the hutment and were guarding the other members. Such statement was corroborated by P.W. 3 saying that there persons were watching them. Hence even though at the first instance it may seem that appellant Nos. 2 and 3 had not taken part in the crime, yet the evidence disclosed is that they vitally perpetrated the commission of it by keeping watch over the other members of the hutment. Their intention hence was same as that of appellant No.1 and no exception can be taken to their conviction. In the result, the appeal has no merit and is dismissed. Appeal dismissed.