SYAMA ALIAS SHYAMA SAHOO Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the order of learned Asst. Sessions Judge, Kamakhyanagar in S.T. No. 76 -D of 1998/18 of 1998 convicting the appellant under Sections 457/376, I.P.C. and sentencing him to undergo R.I. for ten years and a fine of Rs. 1,000/ - in default to undergo R.I. for three months and R.I. for one year and a fine of Rs. 500/ - in default to undergo R.I. for one month respectively.

(2.) PROSECUTION case in brief is that in the night of 12.10.1997 while the victim lady (P.W. 4) was sleeping inside her house at village -Kanakhai with her child, the appellant trespassed into the room at about midnight and forcibly committed sexual intercourse with her against her will. On arrival of her husband in the following morning the victim lady narrated the incident and both the husband and wife went to Bhuban Police Station where they lodged a report, Ext. 5. Basing on this report a case was registered under Sections 457 and 376, I.P.C, investigation was conducted during the course of which the victim lady and the appellant were subjected to medical examination, the clothes of the victim lady stained with semen were seized and sent for chemical and serological examinations and finally on completion of investigation, charge -sheet was submitted for the above noted offences. The appellant denied the allegations and took the plea that he has been falsely implicated by P.W. 4 and her husband because of his previous enmity with them. To substantiate the charges, prosecution examined seven witnesses, P.W. 4 being the prosecutrix, P.W. 7 the husband of the prosecutrix, P.Ws. 1 and 3 the co -villagers of the victim, P.W. 2 the lady doctor, who examined the prosecutrix, on police requisition, P.W. 5 the doctor, who examined the appellant and P.W. 6 the Investigating Officer. No witness or document was produced by the appellant in his defence. On assessment of evidence on record learned trial Judge felt that there is sufficient evidence to establish the charges under Section 457 and 376, I.P.C. Accordingly, he recorded the conviction and sentence indicated above. Mr. S.K. Tripathy, learned Counsel appearing for the appellant contends that the evidence and circumstances on record clearly belie the prosecution allegation, but without considering the contradictions, omissions and procedural lacuna in the evidence learned trial Judge arbitrarily recorded the order of conviction. To substantiate his contention Mr. Tripathy points out that although the victim lady claimed that she sustained multiple injuries on her hands, back and breast, the doctor while examining her on police requisition did not find any injury; although the victim lady claimed that immediately after the occurrence she took shelter in the neighbour's house and narrated the incident to some of the neighbours, none of those neighbours came forward to support her plea, rather one such neighbour P.W. 1 contradicted the claim of the prosecutrix in this regard. It is also pointed out by the learned Counsel that although P.W. 4 admitted in cross examination that she was raped on the floor of the room in totally naked condition and that her wearing clothes were lying on the cot, the prosecution claimed presence of semen stains of the appellant on the saree, which was highly improbable. In substance learned Counsel for the appellant claims that the impugned judgment is totally contrary to the materials on record and based on improbable reasons. In support of his arguments Mr. Tripathy relies on the case of Kubera Mahanta v. State 1991 (II) OLR 83. 3. Mr. A.K. Mishra, learned Standing Counsel argues per contra stating that in case of rape, the evidence of the victim lady is sufficient to warrant a conviction and no corroboration is necessary. According to him, the statement of P.W. 4 being clear and direct, rightly the trial Court relied on her statement. Mr. Mishra also submits that even otherwise the reports of the chemical examiner and serologist are there to support the version of the victim lady and so it is not correct to say that corroboration to the statement of P.W. 4 is totally wanting. He further contends that absence of injury on the person of the victim does not negative the evidence of rape and therefore, absence of injury on the person of P.W. 4 was of no consequence. To support the above noted contentions Mr. Mishra relied on the cases of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, : 1983CriLJ1096 ; Dinesh @ Budha v. State of Rajasthan (2006) 33 OCR (SC) 830; Visveswaran v. State Rep. By S.D.M. 2003 (3) Supreme 566; Prithi Chand v. State of Himachal Pradesh : 1989CriLJ841 and Dinabandhu Behera v. State of Orissa (1995) 8 OCR 123.

(3.) As has been said in the cases of Bharwada Bhoginbhai Hirjibhai (supra) and Dinesh @ Budha (supra) conviction can lie against an accused on the sole uncorroborated testimony of the prosecutrix as an offence of rape is generally committed out of sight of others. It was, however, clarified in these judgments that the sole testimony of the prosecutrix must be clear, cogent irrevocable, unassailable and above -board. So before acting on the sole statement of the prosecutrix the Court must closely scrutinize her evidence to find out the aspect of the reliability.