Ori HC | Conviction under attempt to rape held in 1990 was set aside in 2020 due to lack of clear evidence; Appeal allowed partly

Orissa High Court: S.K. Sahoo J. allowed the appeal in part setting aside conviction under Sections 376/511, 354 and 457 of  Penal Code, 1860 and upholding conviction under Section 448 IPC.

The facts of the case are such that on 03-10-1989 at about 9.30 p.m. while the victim/informant was sleeping with her younger brother in one room of her house and her elder brother Jubaraj Nag and his elder brother’s wife Jayanti Nag were sleeping in the adjacent room, the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room, disrobed her saree and attempted to commit rape on her. Hearing hullah of the victim, the elder brother and his wife came inside her room. The appellant tried to conceal himself underneath a raised platform inside the bedroom but the victim, as well as his elder brother, assaulted him by firewood. Due to tussle of the appellant with the victim, the bangles of the victim were broken and were lying underneath the cot. Then the brothers of the appellant came and took him to their house. FIR was lodged against the appellant under Sections 457 and 354 of the Penal Code, 1860 i.e. IPC. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge, Titilagarh for offences punishable under Sections 376/ 511, 354 and 457 of the IPC. The learned trial Court vide impugned judgment and order dated 17-03-1990, found the appellant guilty of the offences charged and sentenced him accordingly. Aggreived by the same, instant appeal was filed.

Counsel for the appellants submitted that there are certain improbability features in the prosecution case which create doubt that the appellant attempted to commit rape on the victim rather the victim appears to be a consenting party and when she was caught in a compromising position with the appellant by her family members, she reacted and brought false accusation against the appellant just to save her own skin.

Counsel for the respondents submitted that evidence of the victim is clear, cogent and trustworthy, that in itself is sufficient to convict the appellant.

The Court based on the evidence put on record and the witnesses submissions observed that it is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration and the Court can act on such testimony and convict the accused. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the prosecutrix. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version, if it inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The very nature of offence makes it difficult to get direct corroborating evidence.

The Court further observed on the issue of whether victim was a consenting party or not and stated that law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance, the Court may find that there was no force or threat of force or the act was not against her will. ‘Consent’ does not mean submission under the influence of fear or terror. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent. If the woman resists to a point whereafter further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not consent. Verbal resistance apart, the woman can give effective obstacles by means of hands, limbs and pelvic muscles. Resistance by any or more of these will amount to resistance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated byduress, cannot be deemed to be a consent, as envisaged in law.

The Court thus held that the victim’s version in the Court was of rape but when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore, the victim cannot be said to be a truthful witness. It was further held that coming to the charge of attempt to commit rape, the reaction of the victim at the time of occurrence and immediately thereafter are very relevant features, but its absence is not always a decisive factor. As per examination and records it is clear that there were many opportunities earlier for the victim to raise shout and protest but she did not do that.

In view of the above, the conviction of the appellant under Sections 376/511 and 354 of IPC was held to not be sustainable in the eye of law however; there are enough materials to make out an offence of house18 trespass as defined under Section 442 of IPC which is punishable under Section 448 of IPC.

The court thus allowing the appeal in part held conviction of the appellant under Sections 376/511, 354 and 457 of  IPC is hereby set aside, instead the appellant is convicted under Section 448 of the IPC and sentenced to undergo imprisonment for the period already undergone by him.[Satrughana Nag v. State of Odisha, 2020 SCC OnLine Ori 885, decided on 11-12-2020]


Arunima Bose, Editorial Assistant has put this story together

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