Dola @ Dolagobinda Pradhan vs The State Of Odisha

3. The case of the prosecution in brief is that when the victim-prosecutrix was enroute home from her road side “eating house” (hotel) near Khuntagaon weekly market at about 8:00 p.m. on 24.03.1990, the appellants suddenly emerged from behind a ‘Mahulatree’ and gagged her mouth by a napkin and physically carried her to a roadside date-palm clump. Akshya Pradhan (Appellant No.2) threatened the victim with dire consequences by showing a knife at her, and being frightened, the victim could not raise any alarm. The appellants made her lie on the field and both of them committed rape on her. The victim thereafter rushed to her house and narrated the entire episode to her husband. She also showed her torn inner garments worn at the time of occurrence and the injury sustained by her on her cheeks. The next day, at about 11.00 a.m. the victim and her husband went to the police station and lodged the First Information Report (Ext. 1). The Investigating Officer (PW-7) took up the investigation and filed the 3 charge-sheet against both the accused for the above-mentioned offence. After framing the charges, the Sessions Court held the trial. As mentioned supra, the Trial Court convicted both the accused for the offence punishable under Section 376(2)(g) of the IPC and the same came to be confirmed by the High Court.

9. The victim/prosecutrix (PW-1) has deposed that on the night of the incident, at about 7:00 p.m., the accused persons forcibly lifted her while she was going alone to her house from her hotel, her husband having left already. Though she wanted to shout, she could not do so since the accused showed a knife and threatened her with dire consequences. After this, both the accused persons committed rape on her. According to her, her saya (petticoat) (MO No. II) was stained with semen. The police had seized her saree, saya, and blouse, and she was examined 10 by the doctor at the instance of the police. Although in the examination-in-chief she has deposed about the exact names of each of the accused, and the details of the incident, her admissions in the cross-examination raise several doubts as to the veracity of her version as found in the examination-in-chief. In her cross-examination, she admitted that both the accused persons have a hotel near her hotel; she is the first wife of her husband; her sister is the second wife of her husband and is also residing with her husband; the spot of the incident is in between her hotel and Nuadihi Chowk; the road bifurcates at Nuadihi Chowk and buses usually turn at that chowk; there are shops on that chowk; her hotel is towards the west of that road; the hotel of one Purna Bira is near her hotel; the house of Purna Bira is close to the hotel where he resides with his family members; Nuadihi U.P. School is near that chowk; there are 4 to 5 residential houses near that U.P. School; and teachers also live on the school campus. The scene of offence is a corner place in between the U.P. School and residential houses situated near the school. She further deposed that there are village roads near the scene of offence which connect to the 11 main road. There are cultivable lands between the village road and the spot. The spot is encircled by cultivable lands. There are small stones near the spot. The spot is not plain, but it is uneven. She further admitted in the cross-examination that she did not meet anybody while going to her house after the alleged incident, and that none of the neighbours came to her house when she disclosed the matter to her husband. Her husband, her brother-in-law, one servant boy and she herself work in the hotel. One Mr. Dasarathi Sahu is a partner for this hotel business. Vehicles ply throughout the day and night in front of her hotel. In her hotel, food is usually served till 10.00 p.m. Curiously, she admitted that she could not say if the occurrence took place on 24.03.1990. On the day of the occurrence, there was a weekly market in the village and in that market, business is usually carried on from morning till 10.00 p.m.

12. Curiously, the victim has not sustained any injury except some bruises on her cheeks. Her clothes were not even soiled with mud. In her cross-examination, she admitted that there was a tussle at the time of the alleged incident, and that she tried to save herself. She also stated that both the accused persons physically lifted her from the spot, and her bangles had been broken, by which she had sustained bleeding injuries on her hands. Furthermore, she said that she also sustained marks of violence on her hands. She did not sustain any injury on her knee, breasts and buttocks. She stated that she has no acquaintance with the accused persons and she did not have any kind of dealings with them. She further admitted that she had worn eight bangles on each of her hands and all her bangles on the right hand were broken and only one bangle of 15 the left hand remained unbroken, and that all the bangles were broken at the spot of offence.

20. The evidence of the victim/prosecutrix and her husband (PW-3) are unreliable and untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist placing on record that the prosecution has tried to rope in the appellants merely on assumptions, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems to be neither the truth, nor wholly the truth. The findings of the courts below, though concurrent, do not merit acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face of record resulting in serious and grave miscarriage of justice to the appellants.

22. In our considered opinion, the Trial Court as well as the High Court have convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the Doctor’s evidence do not specify whether there were any signs of forcible sexual intercourse. It seems that the First Information Report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court has, in our considered opinion, brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court has proceeded on the 30 basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. Having regard to the totality of the material on record and on facts and circumstances of this case, it is not possible for this Court to agree with the concurrent conclusions reached by the courts below. At best, it may be said that the accused have committed the offence of hurt, for which they have already undergone a sufficient duration of imprisonment, inasmuch as they have been stated to have undergone two years of imprisonment. Accordingly, the appeal is allowed. The judgments of the Trial Court as well as the High Court are set aside. The appellants are acquitted of the charges levelled against them. They should be released forthwith, if they are not required in any other case.

AUGUST 29, 2018.