Sister Mina Lalitha Baruwa vs State Of Orissa & Ors

3. Briefly noting the contents in the charge-sheet, we find that one Swamy Laxmananda Saraswati was killed in Kandhamal District, which led to a communal violence in the entire district. The appellant and another Jesuit father by name Thomas Chellan and some others who were residents of Jesuit Home called ‘Divyajyoti Pastoral Centre’, Kanjamendi of district Kandhamal, fearing attack by the unruly mob took shelter in the house of one Prahallad Pradhan of village Kanjamendi on 24.08.2008.

4. On 25.08.2008, according to the appellant, around 1 p.m. a mob of about 40 to 50 persons came to the residence of the said Prahallad Pradhan, dragged her and other priests to the road while some of the members of the mob molested her and also brutally assaulted her. The appellant was stated to have been dragged to a nearby building called ‘Jana Vikash’ where the 8th accused, respondent No.9 herein, alleged to have raped her while the other accused aided for the commission of the said offence apart from molesting her.

5. The appellant was stated to have been subsequently handed over to the Block Development Officer of K. Nuagaon who in turn produced the appellant and the Jesuit father Chellan to the Inspector In-charge of Baliguda Police Station for necessary action. Thereafter, the appellant filed her complaint on 26.08.2008, whereafter she was medically examined at Baliguda Sub-Divisional Hospital and that her wearing apparels were sealed and sent to State FSL, Bhubneswar along with the exhibits collected by the medical officer. Those materials were stated to have been subsequently sent to CFSL Kolkata for DNA Profiling Test.

6. Appellant in her complaint stated that she would be in a position to identify the assailants though she was not knowing their names.

7. The issue with which we are now concerned relates to an alleged incorrect version stated by PW-18 before whom the Test Identification Parade was held on 05.01.2009. PW-18 was the Sub-Divisional Judicial Magistrate, Cuttack on that date. In the course of examination of PW- 18, the prescribed format of Schedule XLVII of Cr.P.C. along with the proceedings recorded by him were marked as Exhibit-8. The signatures of the witnesses were marked as Exhibits-8/1 to 8/5. The description of test identification parade, conducted by him, was marked as Exhibit- 8/6.

33. Having regard to our above conclusions we find that the order of the trial Court, as well as that of the High Court cannot be sustained and while setting aside the same, we direct the trial Court to recall PW- 18 and call upon the prosecutor to cross-examine the said witness on the aspect relating to the statement, namely, “Sister Mina Baruwa identified accused Santosh Patnaik as the said suspect gave her a slap, pulled her wearing Saree, squeezed her breasts and did not commit any other overt act” vis-à-vis the contents of the statement recorded by PW-18 in Exhibit-8 at the time of test identification parade when the appellant as PW-25 identified the respondent No.9 as has been prayed for on behalf of the appellant and also provide an opportunity to the appellant to file the written arguments on her behalf as provided under Section 301 of Cr.P.C. Since the trial was withheld by virtue of the pendency of this appeal till this date, the trial Court is directed to comply with the directions as above and conclude the proceedings in accordance with law expeditiously, preferably within three months from the date of production of the copy of this order. The appeal stands allowed on the above terms.

December 05, 2013.