ARUNA SURESH, J. CRA NO.2 OF 1990 (Decided on16.12.2010) LAKHI @ LAKHIDHAR BAG …………. Appellant .Vrs. STATE OF ORISSA …………. Respondent (A) EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.32. (B) PENAL CODE, 1860 (ACT NO.45 OF 1860) – S.376. For Appellant : M/s P.K. Nanda & P.C. Das For Respondent : Miss Samapika Mishra Addl. Standing Counsel Impugned in this appeal is the judgment of the Sessions Judge, Kalahandi, Bhawanipatna dated 2.12.1989 whereby he convicted the appellant for an offence under Section 376 I.P.C and sentenced him to undergo rigorous imprisonment for three years. 2. On 13th April, 1989 at about 5 P.M, victim Champa Dei , wife of informer Bhadra Thakur, P.W.3 had gone to the house of her sister Mangelin Dei for getting fire. Appellant Lakhi Bag taking advantage of the absence of Mangelin Dei, forced her servant Bisekh Harijan, P.W.5 to leave the place and, thereafter, ravished Champa Dei. When Champa Dei resisted, appellant gagged her mouth with cloth. However, accidentally, the cloth came out of her mouth and she screamed. Hearing her screams, neighbors came there and broke opon the door and rescued the victim. At the time of the incident, the informer was not in the village as he had gone out. He was informed about the incident by his wife, the victim on his return back in the evening. Thereafter, he lodged his complaint, Ext.3 scribed by Dibakar Thakur, P.W.4, at the Jaypatna Police Station. Resultantly, F.I.R No.37 dated 14.4.89 under Section 376 I.P.C. was registered. After completion of the investigation, charge-sheet was filed. 3. On the basis of evidence available on the record, the trial court was pleased to frame charge under Section 376 I.P.C against the appellant to which he pleaded not guilty and claimed trial. 4. Prosecution has examined nine witnesses in support of its case. Relevant witnesses are Bhadra Thakur (P.W.3), Dibakar Thakur (P.W.4), Bisekh Harijan (P.W.5), Chintamani Thakur (P.W.6), Manu Thakur (P.W.8). Dr. Bishnu Charan Panda (P.W.7) had medically examined the victim as well as the appellant. Constable Promod Kumar Mishra (P.W.1), O.I.C, Ramanath Nayak (P.W.2) and D.I.C, Debi Prasad Das (P.W.9) are all official witnesses. The victim could not be examined by the prosecution, as she had expired after about two or three months of the incident i.e., before the commencement of the trial. 5. Informer Bhadra Thakur as P.W.3 in categorical terms has deposed that the victim had narrated the entire incidents to him when he came back to his house in the evening. He explained the entire incident to Dibakar Thakur, P.W.4 who wrote the complaint, Ext.3 on his instructions, he identified his signature on the complaint. He submitted the report at Jaypatna Police Station on the basis of which F.I.R, Ext.3 was registered and was signed by him. In his cross-examination, he has disclosed that appellant is his cousin (Father’s Sister’s son). He denied the suggestion that victim had illicit relationship with the appellant before he married her. P.W.4, Dibakar Thakur has corroborated the statement of Bhadra Thakur. Besides, he is also a witness to the seizure of saree, blouse and Shaya which belonged to the deceased and was seized by the Investigating Officer vide seizure memo, Ext.4. 6. Bisekh Harijan, P.W.5 who happen to be the servant of Mangelin Dei, was present in the house and was cooking his food at the time of the incident. He, in categorical terms has deposed that Mangelin Dei was absent as she had gone somewhere. He was preparing his food in her house when victim came and asked for fire. Appellant Lakhi also came there and dragged the victim inside the house of Mangelin Dei, after pushing him out of the house. He has testified that he ran towards the village Basti and told the incident to Malla Thakur and Manu Thakur that victim had been dragged forcibly by the appellant inside the house of Mangelin Dei. Those two persons came at the spot, opened the door and found the victim weeping inside the house and the appellant had concealed himself in a corner of the room. He has stood the test of cross-examination. When questioned by the defence counsel, he gave graphical description of the place of occurrence as well as details of the incidents. In the cross-examination, he did admit that Jayanti and her daughter Nura had also come there for husking paddy. However, he has explained that it was after Jayanti and his daughter left, victim was dragged by the appellant inside the room. 8. Learned counsel for the appellant has argued that there is contradiction in the statement of the witnesses regarding the place of occurrence. According to P.W.9, the I.O, place of occurrence was the varendah which was enclosed from all sides by wooden planks. According to P.W.5, Bisekh Harijan, the occurrence had taken place in a room. The trial Court has dealt with this submission of the counsel for the appellant in para 9 of the judgment in the following manner: “Such position has been refuted by P.W.9, the I.O in this case who stated that the place of occurrence is on the varendah with its enclosure from all side by wooden planks. This witness might has understood that the varendah to be a room as it was enclosed from all sides having a door. In this case, the spot map prepared by P.W.9 lends a great significance which snows that the place of occurrence was on the varendah……………” 2 9. I find myself in consensus with the observations of the trial court as regards place of offence. Varendah was also enclosed by all sides by wooden planks having door for entrance. It is individual perspective how a person describes a place which is covered from all sides having an entrance door. Bisekh Harijan has explained the place of occurrence as “room” whereas the Investigating Officer has described it a “covered varendah”. The fact remains, all the witnesses for the prosecution who reached the spot after the occurrence have in categorical terms stated that the enclosure where the incident took place was covered with wooden planks from all sides having one entrance door. Therefore, the contradiction as highlighted by the counsel for the appellant is of no consequence. 10. The Investigating Officer had prepared the site plan, Ext.7 after visiting the spot. Correctness of the spot map is not indispute. Testimony of Bisekh Harijan is of much importance, as he is the first witness of the incident who has clearly proved the manner in which appellant handled the victim and forcibly took her inside the house. 11. Chintamani Thakur, P.W.6 is a chance witness. He was passing in front of the house of Mangelin Dei, when he heard some noise inside her house. He also saw P.W.5, Manu Thakur coming towards the house of Mangelin Dei followed by Malla Thakur. He met them in front of the house of Mangelin Dei. He removed the wooden plank of the varendah and unchained the door. He deposed that he went inside and found the victim was made to lie on the floor and the appellant was sitting on her. It was when he raised alarm along with Malla Thakur and Manu Thakur, the appellant got up and they rescued the victim. In his cross-examination he has deposed that he had gone inside the house at the instance of Manu Thakur as they had heard some sound coming from inside and also because Manu had told him that appellant had dragged the victim inside the house. 12. Manu Thakur, P.W.8 has also corroborated the testimony of Chintamani Thakur. He, in categorical terms has deposed that when they entered inside the room, they found the appellant in compromising position and sitting on the victim lady. It was when they raised alarm, appellant came out and hid himself in the corner of the room. 13. All public witnesses are in consonance with each other, when they said that victim after her rescue, had told them that she was forcibly taken inside the room and raped by the appellant against her will. All these witnesses had also caught-hold of the appellant at the spot. 14. Defence has failed to demolish the testimony of any of the witnesses in their cross-examination. The trial court, therefore, rightly assessed the testimony of these witnesses to conclude that guilt of the appellant has been proved without any dent. 15. True, that the victim of crime could not be examined because she had died. Under these circumstances, trial Court has rightly given weightage to the statement made by the victim to her husband and other witnesses, being relevant under Section 32 of the Evidence Act. Though her statement cannot be considered as a dying declaration, the fact remains, her statement or narration of incident to the eye- 3 witnesses, soon after she was rescued by them and to her husband without any lapse of time becomes highly credible and could not have been ignored by the trial Court. 16. Learned counsel for the appellant has submitted that as per the medical report( Ext.5), Dr. Bishnu Charan Panda, P.W.7 found few external injury on the person of the victim but did not find any injury on her genetalia, nor there was any sticking of pubic hair by formatic or vaginal fluid. He also did not find any living or dead spermotza in her vaginal fluid. He emphasized that in view of this report, it cannot be said that the appellant had ravished the victim forcibly. 17. I do not find much force in the submissions made by the learned counsel for the appellant. Victim was a married woman. The incident took place on 13.4.1989. The F.I.R was lodged on 14.4.1989 and she was examined by the doctor at about 1.30 P.M on 14.4.1989. 18. Serological report (Ext.9/1) indicates that semen of humane origin was found on the Shaya but, it could not be related with the sample semen because of deterioration. This clearly suggests that the victim was ravished/raped by the appellant. It is not necessary that when a woman is raped, the vaginal fluid must contain spermotza living or dead. To constitute an offence of rape penetration is enough. Under these circumstances, the report of the Medical Officer in no manner has weakened the case of the prosecution. 19. Considering the testimony of the eye-witnesses and other evidence which stands fully corroborated and proved on record, I find no merits in this appeal. Hence, the same is accordingly dismissed. 20. As regards sentence, the trial court inflicted sentence of 3 years to meet the end of justice, keeping in mind the age of the appellant, who was a young man at the time of the incident and also keeping in mind the submissions made by the learned counsel for the appellant that he had committed the offence at the spur of moment out of sudden impulse. The sentence imposed by the trial Court is reasonable and cannot be considered as harsh. Therefore, I found no reason to interfere in the same. Appellant shall surrender himself before the trial Court within a week from today to suffer the sentence imposed on him, failing which the trial Court shall ensure his presence in accordance with law. Attested copy of this order be sent to the trial Court through special messenger forthwith for compliance. Trial Court record be returned back. Appeal dismissed. 4