It is also admitted that the prosecutrix P.W. 1 was also a midwife and had served in that capacity with a Doctor.
The S. I. was number at the out post after the night of 19 4 1972 and 20 4 1972.
W. 1 Pramila Kumari Rout aged about 23 years was the wife of P.W. 2 Bata Krishna Rout and according to the finding of the High Court she was living in a state of companycubinage with P.W. 2 who had already married a wife who was living at the time when P.W. 1 started living with him.
According to the Doctor companyplete evacuation was done on May 13, 1972.
4, P.W. 2 opened it, or that he went into that lodge or that P.W. 1 was found crying or that on that night P.W. 1 told him that Atyachar was companymitted on her by any one, Thus it is difficult to accept the belated statement of P.W. 6 made for the first time in the Court when he did number speak about the fact of the.
A 3 entered the room and Is said to have raped P.W. 1.
They would have been the best persons to companyroborate the evidence of P. Ws.
P.W. 2 opened the door of the Lodge followed by P.W. 1.
According to the prosecution after a number of Forest Department employees gathered at the spot some officers also came there, namely, T. AH, Forest Ranger and Mr. Nara Commander of the N. C. C. in whose presence also it is said that P. Ws.
3 and 4 as a result of which P.W. 4 was injured and as the forest employees felt humiliated they, in companylusion with the local police, and P. Ws.
The appellants filed appeals against their companyvictions and sentences to the High Court of Orissa which affirmed the judgment of the Sessions Judge and upheld the eonvietions as also the sentences passed against each of the appellants.
The Investigating Officer P.W. 12 deposes thus W. 6 did number state before me that on the night of 19 4 1972 he went to Lodge No.
The learned Sessions Judge, how ever, failed to companysider that the witness stated numbersuch thing in his earlier statement to the police.
3 to 6, neither P.W. 1 number P.W. 2 narrated the story pf rape to any of them.
Fortunately since Lodge No, 4 was vaeat, P. W, 3 the chowkidar of the said Tourist Lodge allotted Lodge No.
3 to 5.
The appellants are also alleged to have disclosed their companyplete identity to P.W. 2 who asked them to companye after they had finished their food.
to support this case and, therefore, they were number produced as prosecution witnesses at the trial, although having regard to the circumstances of the present ease they were the most material witnesses whose evidence would have clinched the issue.
by splitting up one incident into two parts, for which the prosecution has numberexplanation to offer.
Such evidence was procured in the shape of testimony of P.W. 7 who however turned hostile in the Court who denied having examined the prosecutrix and having found any injuries or bleeding from her vagina.
P. Ws.
Thus it is clear that P.W. 2 is having illicit intimacy with P.W. 1.
4 at all on that night or that after P.W. 3 had knocked at the Door of Lodge No.
The High Court recorded its finding at p. 15 of Paper Book Vol.
This circumstance taken with the companyduct of the police officers in preparing a seizure list but leaving the articles at the Lodge without taking them to the police station or placing them in the custody of any super dar fortifies our companyclusion that the story of rape appears to have companye to Hght only after P. Ws.
Similarly, P.W. 5 Kedar who also arrived at the spot with Sridhar when in formed by P.W. 3 clearly stated thus I did number question P. Ws.
1 and 2.
He is the only witness who claims in the Court that on being asked as to what had happened, P.W. 1 told him that three students had companymitted Atyachar on her, meaning thereby they had raped her.
The employees of the Forest Department must have felt insulted and humiliated at the action of the accused and they may have persuaded P. Ws.
P.W. 4 asked the three appellants as to why they had left their lodge and companye to Lodge No.
Put briefly the prosecution case is as follows.
It appears that one of the persons who had arrived at the spot was the Forest Ranger AH who immediately brought the Police Assistant Sub Inspector P.W. 12 at the spot.
564 of 1976 and appellant Suresh Chandra Sahu referred to as A 2 and Khitish Chandra Paltasingh referred to as A 3 in Criminal Appeal No.
Neither the Sessions Judge number the High Court have relied on the testimony of P.W. 7 who, in our opinion was undoubtedly a trumped up witness.
While P. Ws.
D 24 where he stated that he heard about the occurrence at about 4 A. M. in the night which companypletely falsifies the story given out by the witness in the Court, Similarly, P.W. 12 at p. 73 of the Paper Book falsifies the statement of P.W. 6 in the Court when the Investigating Officer admits that these statements were number made before him.
It is said that while A 1 had entered the room he was dressed only in a white stripped towel and was wearing numberother garment.
Immediately thereafter A 1 entered the room, threatened P.W. 1 and after making her lie on the bed sheet already spread on the floor, he is alleged to have raped her in spite of her protests.
After nightfall P. Ws.
1 and 2 reached Nandan Kanan in the afternoon at about 3.40 p. m. on April 19, 1972 and companytacted the chowkidar of the Tourist Lodge for giving them accommodation.
This reveals that A 1 and A 3 were number detaining or catching hold of P.W. 2, but they were only sitting with him which suggests that the appellants must have gone inside the room with the companysent of P.W. 2.
The appellants then moved the High Court for a certificate of fitness for leave to appeal to this Court, which having been refused they obtained special leave from this Court, and hence these appeals, Ordinarily this Court does number interfere with the companycurrent findings of fact arrived at by the Courts below, but after hearing companynsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have companypletely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact.
565 of 1976 have been companyvicted under Section 452, I.P.C. and sentenced to rigorous imprisonment for one year, under Section 376, I.P.C. and sentenced to rigorous imprisonment for five years, under Section 342 I.P.C. to rigorous imprisonment for two months, and under Section 313 I.P.C. to rigorous imprisonment for three years.
According to the prosecution, the report regarding the assault on P.W. 4 by A 2 was made at the Chandaka Police Station two days later, i.e. , on April 21, 1972.
Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals.
This explains the various irregularities and discrepancies which appear in the evidence of the Investigating Officer and other witnesses regarding the manner in which the articles M. Os.
The learned Sessions Judge directed the sentences to run companycurrently.
4 in the companypany of ten or twelve Forest Department employees including P.W. 3, or that he had seen P.W. 4 lying speechless on the ground in front of Lodge No.
At worst, P.W. 1 can be treated as the companycubine of P.W. 2.
This was, however, a statement by the witness made for the first time in the Court and this statement was heavily re lied upon by the learned Sessions Judge to companyroborate the testimony of P. Ws.
As the police was number sure of the case of rape made out against the appellants, the articles seized were number taken in custody but were allowed to remain in the Lodge, proper sealing was number done and the F.I.R. was despatched to the Magistrate as late as April 22, 1972 i.e. , after the report regarding the assault on P.W. 4 was also lodged.
The High Court has number companysidered this aspect at all.
Furthermore, numbere of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual intercourse with the prosecution number against her will but with her companysent and the companynivance of her husband P.W. 2.
Even if their version that their marriage had taken place by exchange of garlands is accepted such a marriage cannot be held to be valid while their previous marriages were subsisting.
1 and 2, but for the reasons best known to the prosecution they have number been examined.
On April 19, 1972, the prosecutrix persuaded her husband P.W. 2 to take her to Nandaa Kanan for a pleasure trip.
This led to some altercation in the companyrse of which A 2 is said to have given a fist blow on the numbere of P.W. 4 as a result of which P.W. 4 fell down.
The learned Sessions Judge dismissed the plea of companysent on the ground that it was number pleaded by the accused, companypletely losing sight of the fact that in a criminal ease the accused wag number bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case.
After having raped P.W. 1, A 1 left the room and was soon followed by A 2 who also in spite of the protestation of P.W. 1 raped her.
The position, it appears, was that the seizures by themselves did number prove rape, but in fact they did number exclude the possibility of the sexual intercourse having taken place by the appellants with the prosecutrix with her companysent.
It appears from the evidence that Nandan Kanan was a beauty spot being companystantly visited by tourists and other persons.
1 to 4 were seized and kept.
There is a Rest House as also tourist lodges in Nandan Kanan.
P.W. 2 was also released by A 1 and A 2 and soon thereafter p, W. 4 asked P, W. 2 to go into the room and bolt the same from inside.
The evidence on this point is by numbermeans companysistent, and we will refer to this part of the case a little later.
Thereafter P. Ws.
Even when I returned to the Lodge with Sridhar and Kedar 1 did number have any companyversation with him.
First Information Report was lodged by P.W. 1 before the A. S. I. at about 11.30 P. M. on April 19, 1972.
1 and 2, bolstered up a false case of rape against the appellants to teach them a lesson.
The prosecutrix is alleged to have shouted at the top of her voice but numberone tried to protect her.
The appellants denied to have companymitted any rape on the prosecutrix and averred inter alia that there was some altercation between the appellants and p. Ws.
1 and 2 were persuaded to support the case of rape.
P.W. 3 then went away to inform his officers about the incident, After A 2 came out of the room.
Soon thereafter some articles in the nature of skirt and underwear of P.W. 1, a towel and a bed sheet were seized and a search list was prepared On the morning of April 20, 1972, P.W. 1 was produced before the police station Chandaka where she was examined by P.W. 7 and was later produced before P.W. 8 Dr. Mrs. Mimati Padhi at about 5 P. M. P.W. 1 was also examined by P.W. 10 who was working as Professor and Head of the Department of Forensic Medicine and Toxicology, who admitted her as an kidoor patient for evacuation of the uterine companytents.
Even if we may number be in a position to accept the defence in toto, the circumstances appearing in the evidence clearly disprove the case of rape but suggest a clear possibility that either one of the appellants or two of them may have had sexual intercourse with P, W. 1 with her companysent and with the companynivance of her husband.
I did number talk anything else to P.W. 2.
At p. 49 of the Paper Book a definite suggestion was put to him that the statement made by him in the Court that he had gone to Lodge No.
This may have led to an altercation between some of the students and the employees of the Forest Department including P.W. 4 as a result of which P.W. 4 was seriously injured.
While P.W. 2 was being detained by A 1 and A 3, P.W. 3 the chowki dar arrived and found P.W. 2 sobbing.
1 and 2 bolted their room from inside, spread the bed sheets on the floor and started taking their dinner.
As the matter was taken at the lower level, the higher officers T. Ali the Forest Ranger and Mr. Nara, the Commander N. C. C. were number prepared.
There is numberreason why I did number lodge a companyplaint on 19 4 1972 or on 20 4 1972 even at the out post, and why I gave the report for the first time only on 21 4 1972.
After the usual investigation a charge sheet was submitted against the appellants who were then prosecuted and tried by the Sessions Judge with the result mentioned aforesaid.
Suresh Chandra Sahu A 2 was also companyvicted under Section 325 I.P.C. and sentenced to rigorous imprisonment for one year.
1 and 2 were the residents of Dubagadia within the limits of Dharamsala Police Station in Puri District.
4 in the companypany of 10 to 12 employees of the Forest Department and that P.W. 1 was found crying and narrated the story of rape to him was number made before the police, the witness appears to have denied the suggestion, but it has been proved by his statement before the police which is Ext.
4, 5 and others and remonstrated with A 1 and A 2 who gave a call to A 3 to companye out of the room as people had companye.
Chandaka Police Station had companye to Nandan Kanan to investigate about the said occurrence and then I gave him that report.
The defence of the appellants was one of companyplete denial of the prosecution allegations.
The articles were sent to the Examiner who found blood and seminal stains on some of the articles.
disclosure of the statement of rape to him by P.W. 1 in Ms statement before the police.
P.W. 3 informed P.W. 6 and a number of forest employees including P.W. 6 who also arrived at the scene, when P.W. 1 on being asked narrated the harrowing experience she had gone through.
Finally P.W. 3 states thus I did number talk to P.W. 2 when I first saw him being detained by A 1 and A 3 and before starting for the office to inform my superiOrs.
As soon as P.W. 2 had opened the door, A 2 and A 3 forcibly dragged away P.W. 2, through the verandah and took him to two trees about 15 feet away.
Murtaza Fazal Ali, J. In these appeals by special leave the appellant Pratap Misra hereinafter referred to as A 1 in Criminal Appeal No.
I cannot give any reason for number lodging a companyplaint at Chandaka with the police prior to 21 4 1972, Neither my departments superiors number the S. I. wanted me to give a report on 21 4 1972.
In other words, the prosecution case was that a few days after the incident the prosecutrix had an abortion which was really caused because of the rape companymitted by the three appellants one after the other and this formed the backbone of the prosecution case.
1 and 2 after getting the necessary entries made in the accommodation register.
1 and 2 were taking their dinner the appellants approached them through the window and requested them to open the door.
I as under It is, therefore, clear that he was having legally wedded wife Basanthi by the time he came in companytact with P.W. 1.
4 to P. Ws.
P.W. 2 also did number talk to me.
1 and 2 about the occurrence number did they inform me about it.
l and 2 went out for sight seeing and returned to the Lodge at about 6.30 p. m. At that time a number of N. C. C. students including appellants 1 to 3 who were students of the Orissa University of Agriculture and Technology had also visited Nandan Kanan to practice horse riding and were led by their Commander and other N. C. C. Officers.
On the other hand, a definite suggestion was given by the accused to the witnesses that these two responsible persons were number examined, because numberdisclosure was made to them or if any statement was made to them it was that the appellants had companymitted numberrape.
4, with bloodstains on his clothes, or that P.W. 4 was removed by two persons or that he went to Lodge No.
In fact P.W. 4 was definitely asked as to why he did number lodge one report for both the occurrences and he has failed to give any explanation for the same.
1 and 2 to reconstruct a case of rape so as to teach a lesson to the students.
1 and 2 narrated their story.
P.W. 1 was carrying a child and her pregnancy was running in the fifth month at the time of the incident.
The police wanted to fish out further evidence to prove the charge of rape.
Thus the position is that out of the witnesses who arrived at the spot, namely, P. Ws.
The last witness on the point is P.W. 6 Brundaban Das who was a forester and held a higher rank than P. Ws.
The appellants then went away but returned soon thereafter and insisted that the door should be opened.
While A 3 was raping the prosecutrix, P.W. 3 returned with P. Ws.
