Rape | ‘Too Broad A Generalization’ To Hold That A Woman Would Never Speak Something Affecting Her Character: Orissa HC

While allowing an appeal against conviction for rape, a Single Judge Bench of Justice Sashikanta Mishra held:

“Learned Court below has also considered the theoretical possibility that a woman ordinarily would not like to speak about something affecting her character and estimation. While the above may be a plausible presumption of the conduct of a woman subjected to rape the same would be too broad a generalization to be accepted in every case as a rigid formula.”

Prosecution Case

On 13th July, 2012 when the victim, who was then a minor girl aged about 13 years, was preparing to go to School in the morning, the accused came to her house and informed that he had been instructed by Naxals to call her to the forest. When the victim enquired about the reason, she was told that the Naxals would cut her throat if she did not obey. Therefore, she accompanied the accused to the nearby forest at the end of the village out of fear.

There, the accused told the victim that he would save her from the Naxals if she lets him to have sexual intercourse with her. However, she declined and resisted. But it is alleged that the accused put her on the ground forcibly and committed rape. The victim was further threatened that he would cut her throat if she disclosed the occurrence before any person.

On 12th September, 2012 there was a gathering of about 500 people for discussion regarding a letter of threat issued by Naxals to the Sarpanch of the village. In that meeting, the accused admitted to have raped the victim despite her protest. Therefore, the informant lodged a written complaint before the police on the very next day. Upon completion of investigation, charge sheet was submitted under Sections 376/506, IPC, cognizance was taken and the case was committed to the Court of Sessions for trial.

After going through the evidence in detail, the Sessions Court was convinced that the accused committed the aforesaid offences and sentenced him accordingly. Being aggrieved by the same, the accused filed this appeal before the High Court.

Contentions of Parties

Manoj Kumar Panda, counsel appearing for the appellant argued that the alleged extra judicial confession of the accused before the villagers in the meeting cannot be treated as admissible in view of the evidence that he was pressurized and threatened to do so. Further, he contended, the victim’s version, which is clouded with doubts, could not have been relied upon by the Trial Court as the basis for convicting the accused.

On the other side, Additional Standing Counsel Priyabrata Tripathy supported the findings of the Court below. He submitted that when the version of the victim is clear, cogent and credible, it is adequate to convict the accused solely basing on it. No corroboration is necessary in a case of rape, as the victim is not an accomplice. It was further argued that the victim had adequately explained the reasons for not disclosing the fact before any person as also for lodging the FIR belatedly.

Court’s Observations

The Court, while perusing the statement of the village Sarpanch, questioned the veracity of the extra-judicial confession made by the accused. It held that the so-called extra judicial confession must be voluntary and without any kind of coercion or pressure. However, in the instant case, the villagers threatened to take away his life and left him in the custody of the Sarpanch. Only after which the accused made the alleged confession. Hence, the Court declined to accept the same.

Further, the Justice Mishra noted that the letter of threat received by the villagers as well as the minutes of the meeting were never proved before the Court. This compelled him to doubt whether such a meeting took place at all. The Court was also of the view that if the meeting was convened to discuss the letter of threat issued by the Naxals, there was no reason why the victim would be called to attend the same. Further, there is no evidence that the victim or her guardian had made any complaint in the village, which could be the basis or reason for convening the meeting.

“Even otherwise, it does not stand to reason or a probable or normal conduct on the part of a girl as young as the victim was at the relevant time to hide such fact from her own mother for whatever reason but could disclose the same before 500 villagers in the village meeting. The above act of the victim militates against normal human conduct”, the Court added.

The Court also observed that if the victim was forcibly raped, it is natural that she would have sustained injuries not only on her private parts but also on her body. However, there is nothing in the evidence to show that the victim had sustained any such injuries. It seemed improbable to the Court that she had sustained injury but did conceal the same for nearly two months and did not say anything about it even to her mother.

“The Court must distinguish between a mere possibility and probability because a case is to be decided on broader probabilities. Merely because, an act is theoretically possible does not necessarily mean that the same is probable under the facts and circumstances of the case. In other words, the Court is required to make a broader assessment of the evidence on record to find out whether the version of the witnesses suggest the probability of the occurrence having taken place”, the Court further remarked.

Justice Mishra was of the view that the Court below considered ‘the theoretical possibility’ that a woman ordinarily would not like to speak about something affecting her character. But he said that though the above may be a plausible presumption of the conduct of a prosecutrix, the same would be “too broad a generalization” to be accepted in every single case as a rigid formula.

Accordingly, it concluded:

“Such theorizing, divorced of the peculiar facts and circumstances can result in erroneous appreciation of the evidence adduced in a particular case, which unfortunately, the impugned judgment is found to be suffering from. Hence, the impugned judgment of conviction and sentence cannot be sustained in the eye of law.”

Case Title: Mukunda Parichha v. State of Odisha

Case No.: CRLA No. 299 of 2015

Judgment Dated: 6^th January 2023

Coram: Sashikanta Mishra, J.

Counsel for the Appellant: Mr. Manoj Kumar Panda, Advocate

Counsel for the Respondent: Mr. Priyabrata Tripathy, Additional Standing Counsel

Citation: 2023 LiveLaw (Ori) 8

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