B.K.MISRA, J. CRLA. NO.258 OF 2007 (Decided on 18.8.2011) BHOLANATH SETHY @ BULU … …Appellant. .Vrs. STATE OF ORISSA ……Respondent. EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – Ss.137, 138. For Appellant - M/s. Susamarani Sahoo & Associates. For Respondent - Addl. Govt. Advocate B.K. MISRA, J. The appellant, who has been convicted under Section 376 (2)(g) of the Indian Penal Code (for short the ‘I.P.C.’) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2000/- in default to further undergo rigorous imprisonment for six months in S.T. Case No.27/16 of 2006 by the Ad hoc Additional Sessions Judge (Fast Track Court No.II), Keonjhar being aggrieved has preferred this appeal. 2. The case of the prosecution is that the victim (prosecutrix) (P.W.2), who happens to be the first wife of the informant Pradeep Kumar Pradhan, (P.W.1) on 29.9.2005 around 5 P.M. had gone to a well at ‘BEDANALA’ to fetch water and while she was returning, the present appellant along with one Duan Giri raped her. Information was lodged by P.W.1 in writing before the O.I.C., Nayakote Police Station vide Ext.1. On receipt of the said information, Police took up investigation of the case and on completion of the investigation charge sheet against the present appellant and Duan Giri under Section 376 (2)(g) of the I.P.C was placed. I may mention here that though both the accused persons were convicted by the learned trial court under Section 376 (2)(g) of the I.P.C. but the present appellant only has preferred this appeal. 3. The plea of the appellant was of complete denial of the allegations. It is his further plea that since he had landed property dispute with Pradeep (P.W.1), therefore he has been falsely implicated in this case. 4. The prosecution in order to bring home the guilt of the accused persons examined nine witnesses in all and of them P.W.1 is the informant. P.W.2 is the prosecutrix. P.Ws.3 to 5 are the three eye-witnesses to the occurrence. P.W.6 is a “Panch” witness to testify about the extra judicial confession made by the appellant as well as accused Duan Giri before the villagers to have raped P.W.2. P.W.7 is the Police Havildar who speaks of the seizure of the glass vials containing pubic hairs of the prosecutrix as well as of the accused persons. He also speaks about the seizure of the full pant of the present appellant besides seizure of five numbers of X-ray plates of the prosecutrix. P.W.8 is the I.O. and P.W.9 is the medical officer who had examined the victim. The accused persons declined to examine any witness in his defence. 5. The learned Trial Court on analyzing the evidence as laid by the prosecution came to the conclusion that the prosecution has well established its case against the accused persons and accordingly while convicting the appellant as well as the other accused passed the impugned sentences, which is under challenge by the present appellant in this appeal. 6. The learned counsel appearing for the appellant while assailing the order of conviction and sentences contended that the order of conviction and sentences so far as the present appellant is concerned cannot be sustained in the eye of law for a moment as there is absolutely no credible evidence on record to hold that the present appellant along with the accused Duan committed the offence of gang rape and the alleged extra judicial confession should not have been relied upon in view of the evidence of P.W.2, the prosecutrix. 7. The learned counsel appearing for the State on the other hand contented that the order of conviction and the sentences imposed on the appellant calls for no interference as those are based on proper appreciation of evidence on record. 8. Upon hearing the learned counsel appearing for the appellant as well as the learned Additional Government Advocate for the State and on a close and critical analysis of the evidence on record, I find that the sole evidence of P.W.2, the prosecutrix should not have been relied upon by the learned trial court. It is the case of the prosecution that on 29.9.2005 around 5 P.M. the prosecutrix had gone to fetch water from a well at ‘BEDANALA’ and while she was returning, she was ravished by the present appellant as well as the accused Duan Giri. Admittedly, P.W.1, who happens to be the husband of the prosecutrix is a post occurrence witness. The most important evidence on record is that of P.W.2, the prosecutrix. Though P.W.2 in her examination in chief deposed that the present appellant along with the accused Duan Giri ravished her by taking her to a nearby field, but in her cross-examination she deposed that since there was darkness faces were not visible and she could not recognise the culprits who made her to sleep in the field and it is also her specific evidence that somebody might have slept over her which she could not know. The learned trial court while recording the 2 evidence of P.W.2 has recorded the demeanour of this witness and held at one point of time that the witness was mentally imbalanced. This fact has also been categorically mentioned by the learned trial court in the last sentence of Para-6 of the judgment. But very unfortunately, the learned trial court placed reliance on the evidence of P.W.2 which she deposed in her examination in chief and did not take into consideration the evidence which was elicited from the mouth of P.W.2 in her examination by the defence. It is the settled position of law that the evidence of a witness i.e., which she deposes in his examination in chief as well as in his cross-examination are to be considered and the Court cannot overlook the evidence or overlook the matters which has been brought out in the cross-examination of a witness. It is the duty of the Court to consider the entire evidence of the witness brought on record. Damaging statements in cross-examination cannot be ignored. The veracity of the witness is to be tested with reference to answer given in cross-examination. Sections 137 and 138 of the Evidence Act conjointly speaks of the object of cross-examination. The object of cross-examination is to test the credibility of the witness, to test truthfulness of facts which he had stated in examination- in-chief, to put defence version in the mouth of witnesses and to know facts which the witness did not depose. Further the object of cross-examination is to weaken, to qualify or destroy the case of opponent and establish party’s own case by means of his opponent witnesses. (Vol. 57 (1984) Cuttack Law Times 505 in the case of Gunanidhi Sundara V. State of Orissa and 2006 (2) Crimes 13 in the case of Syed Dastageer V. State of Andhra Pradesh.) But unfortunately in the instant case the learned Trial Court did not take into consideration this aspect of the settled position of law and believed the evidence of P.W.2, the prosecutrix which she deposed in her examination-in-chief but what she deposed in her cross-examination was not taken into consideration. 3 9. It is the evidence of P.W.1, the husband of P.W.2 that Binapani is mentally deranged though she is not fully mad, but she is lacking in manners and child care. Despite that he and Binapani had good conjugal life and Binapani had given birth to a daughter. P.W.1 deposed that he was informed by his aunt Karpura Pradhan that P.W.2 was lying near a ‘Nala’ and when he proceeded there found P.W.2 and accused Duan Giri washing themselves in the ‘Nala’ and accused Duan was then fully naked. P.W.1 also deposed that on seeing him Duan Giri told that the present appellant loved Binapani and so saying ran away from the ‘Nala’. P.W.1 also deposed that when she asked, P.W.2 she reported that while she was returning after fetching water the present appellant along with Duan Giri dragged her near the canal and she was ravished by them one after the other. But P.W.1 in his cross-examination deposed that when he reached at the ‘Nala’ it was dark and Binapani did not disclose anything to him on her own accord. But this evidence of P.W.1 cannot be believed in view of the evidence of P.W.2, the prosecutrix who says that she cannot say if somebody might have slept on her and she could not recognise the persons in view of the darkness. P.W.1’s evidence do not disclose the presence of the appellant near the ‘Nala’ when he arrived at the spot on hearing the incident. 10. P.Ws.3, 4 & 5 are the three vital witnesses for the prosecution. P.Ws.3 to 5 consistently deposed that they had seen accused Duan Giri having sexual intercourse with P.W.2. Their evidence simply shows that the present appellant was standing under a ‘Jamun’ (Black Berry) tree while they were going to attend the call of nature and when they asked him to go away and not to drench in rain the present appellant asked for umbrella and when chased thereafter they ran towards the paddy field and thereafter to their house. Thus P.Ws.3 to 5 never breath a word if the present appellant was there at the spot where P.W.2 was sexually assaulted by Duan Giri and their evidence do not show if the present appellant in any way abated in such commission of rape by Duan Giri on the prosecutrix. P.Ws. 3 to 5 who are the relations of prosecutrix and P.W.1 the informant nowhere implicate the present appellant in committing gang rape on P.W.2 along with Duan Giri. The evidence of P.Ws. 3 and 4 that they had seen the present appellant standing under a ‘Jamun’ tree while they were going to attend the call of nature and asked for an umbrella cannot be believed as they did not disclose those facts before the I.O., P.W.8. P.W.8 the I.O. has deposed that Pratima Pradhan and Rajani Pradhan did not state before him that they had seen the present appellant standing under a ‘Jamun’ tree while they were going to attend the call of nature on the evening of the date of occurrence. Now coming to the next point as to the extra-judicial confession made by the appellant before the village ‘Panch’, prosecution relied upon the evidence of P.W.6. 11. P.W.6 deposed that on the allegation of Pradeep that the accused persons had raped his wife a meeting was convened where the present appellant confessed to have raped P.W.2 and he has proved the ‘Panch-Faisalanama’ as Ext.2. P.W. 6 deposed that the prosecutrix was present in the meeting and she told about the incident but P.W.6 admitted that Ext.2 nowhere reflects about those facts and similarly what Bholanath (appellant) confessed, Ext.2 is silent. In view of the evidence of P.Ws.2 to 5 the extra judicial confession which has been pressed into service cannot at all be believed and accepted especially when they have not at all breathed a word about such village meeting to have been held where the present appellant admitted his guilt. P.W.8, the 4 I.O. he deposed that he did not direct his investigation to ascertain if the victim was present in the Panchayat or not and he did not enquire as to who scribed the ‘Panch- Faisalanama’. P.W.9 is the doctor and the doctor deposed that he did not find signs of any recent sexual intercourse but in view of the injury over the breast and ‘glutial’ region sexual intercourse cannot be ruled out. But this evidence of P.W.9 do not at all probablises the case of the prosecution so far as the present appellant is concerned. 12. The seizure of the full pant of the appellant which has been deposed to by P.Ws.7 & 8, the two Police Officers vide seizure list Ext.6 is of no help to the case of the prosecution, in view of the chemical examination report Ext.16 which shows that no blood and semen stains could be found on Ext. E i.e. the full pant seized from the present appellant. 13. In the instant case, the learned trial court failed to appreciate the evidence on record in its proper perspective and erred in arriving at a wrong conclusion which cannot be sustained in the eye of law for a moment. The evidence on record do not at all inspire any confidence to warrant conviction of the present appellant under Section 376 (2)(g) of the I.P.C. Consequently, the impugned order of conviction and sentences so far as the present appellant is concerned are hereby set aside. The appellant having held not guilt under Section 376 (2)(g) of the I.P.C. is acquitted thereof and he be set at liberty forthwith if his detention in custody is not required in any other case. Accordingly, the Criminal Appeal stands allowed. Appeal allowed. 5