‘A Person Hardly Expected To Outrage Modesty Of Aunt Along With Brother’: Orissa High Court Quashes Man's Conviction U/S 354 IPC

The Orissa High has acquitted a man accused of outraging the modesty of his aunt, being associated with other accused persons including his brother, in a 31-year-old-case. While giving relief to the appellant, the Single Bench of Justice Sashikanta Mishra observed,

“Learned Sessions Judge therefore, could not persuade himself to believe that an elder brother and younger brother would jointly commit rape on their aunt… To reiterate, a person can hardly be expected to outrage the modesty of his aunt being associated with his younger brother.”

An FIR was lodged by the prosecutrix on 28.02.1992 against the present appellant and four other accused persons alleging that while she was alone, the accused persons entered her home and gagged her mouth, laid her on the ground and two co-accused persons committed sexual intercourse with her one after another.

While the incident was going on, one Phula Majhi arrived at the spot and saw the offence being committed. However, she was allegedly chased away by the accused persons. Phula informed the husband of the prosecutrix about the incident, after which they proceeded to the spot only to find that the accused persons had already fled away.

Upon registration of the FIR, investigation was done and charge-sheet was submitted against the accused persons under Sections 448/376(2)(g)/34 of the Indian Penal Code.

After holding the trial, the Sessions Judge, Mayurbhanj was of the considered view the evidence of the victim as well as her husband and the eye-witness does not prove the theory of rape. However, he held that the presence of the accused persons in the house of the victim and use of physical force on her are well-proved.

Therefore, the trial Court found them guilty under Sections 451/354/34 of the IPC and sentenced accordingly. Being aggrieved by the order of conviction, three accused persons preferred an appeal before the High Court, including the present appellant. As two of them died while the appeal was pending, the case against them stood abated.

Court’s Observations

The Court noted that the prosecutrix gave vivid details of the incident of gang rape in the FIR. She reiterated the same version in her sworn testimony before the Court. However, the trial Court was not inclined to believe her version after comparing it with the medical evidence. The State did not challenge such finding. The Court agreed to the conclusion reached by the trial Court in this respect.

So far as the culpability of the appellant for offences under Sections 451 and 354 was concerned, the Court took into consideration the evidence as was elicited from the victim. It was of the opinion that the evidence of the victim is quite consistent with the version of the FIR and ordinarily, the Court would have accepted such version.

However, in this case, the defence evidence was given due weightage from which it came to the light that there was a quarrel between the husband of the prosecutrix and one of the accused persons on the very same day. At this time, both the prosecutrix as well as eye-witnesses Phula had assaulted that accused.

“Viewed in this background the defence evidence, which is to be tested on the principle of preponderance of probability assumes significance and rather, lends support to the theory that there was a fight between the husband of the prosecutrix and accused, Ramai in which the prosecutrix as well as Phula (P.W.-5) had also participated. Another significant aspect that needs mention is that according to P.W.-6, his wife (prosecutrix) had also sustained injuries because of assault on her by the accused persons at the end of the handia drinking ceremony. This, in fact explains the injuries found on the body of the prosecutrix,” the Court observed.

The Court also noted that the trial Court discarded the allegation of gang rape considering the fact that the accused persons were brothers and nephews of the prosecutrix. The trial Court could not persuade itself to believe that an elder brother and a younger would jointly commit rape on their aunt.

“If this is accepted as the reason for discarding the prosecution evidence in so far as the same is projected to prove the occurrence of rape, then by logic the very same argument can be put forth to reject the finding of outraging of modesty,” the Court added.

Consequently, the Court concluded that the evidence of the victim, her husband and the eye-witness does not inspire confidence to convict the accused persons for commission of gang rape. Therefore, basing upon the very same reason, it was held that the charge of outraging of modesty cannot also stand.

Resultantly, the appeal was allowed setting aside the order of conviction and sentence rendered by the trial Court.

Counsel for the Appellant: Mr. B.K. Mishra, Amicus Curiae

Counsel for the State: Mr. S.K. Mishra, Additional Standing Counsel

Citation: 2023 LiveLaw (Ori) 102

Case Title: Bada Majhi v. State of Orissa

Case No.: CRA No. 307 of 1993

Date of Judgment: September 26, 2023

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