Holding

The Supreme Court held that the prosecutrix’s testimony was truthful and trustworthy, corroborated by medical evidence, and the High Court erred in acquitting; the conviction under Section 376 IPC was upheld.

Summary

The State of Orissa prosecuted Thakara Besra and another accused for rape under Section 376 of the IPC. The prosecutrix testified that the accused forced entry through the thatched roof, assaulted her, and left blood and semen stains on her petticoat, which were confirmed by medical and forensic reports. The trial court found her testimony truthful and corroborated by the medical evidence, convicting the accused to five years’ imprisonment. On appeal, the Orissa High Court acquitted them, doubting the injury’s origin, suggesting the semen could be from the husband, and criticizing the lack of a neighbor’s testimony and evidence of forced entry. The Supreme Court held that the prosecutrix’s testimony was reliable, the medical evidence corroborated it, and the High Court’s reasoning was unsound, thereby setting aside the acquittal and upholding the conviction.

Issues considered

Whether the testimony of the prosecutrix in a rape case can be deemed trustworthy despite alleged infirmities.
Whether medical and forensic evidence corroborates the prosecutrix’s account sufficiently to sustain a conviction.
Whether the absence of certain evidentiary elements (neighbor’s testimony, proof of forced entry) creates reasonable doubt.
Whether the possibility of semen originating from the husband raises doubt about the accused’s guilt.

Legislation cited

Indian Penal Code, 1860s. 376

Subjects

rapetestimony of prosecutrixmedical evidencecorroborationconvictionacquittalevidentiary standardsSection 376 IPCappellate review

Judgment

... " STATE OF ORISSA A
v.
THAKARA BESRA AND ANR.

APRIL 16, 2002

[R.P. SETHI AND D.M. DHARMADHIKARI, JJ.] B

Penal Code, 1860: Section 376

Rape-Testimony of prosecutrix-Trusworthiness-Corroboration by
medical evidence-Conviction by Trial Court-Appeal by accused persons- c
Re-appreciation ofevidence by High Court-Acquittal-Appeal before Supreme
Court-Held. High Court rejected testimorry of prosecutrix on surmises-
Acquittal order passed by High Court set aside.

The respondents were tried under Section 376 of the Indian Penal Code,
1860. The prosecution story was that in the absence of husband. ofprosecturix
D
the accused persons made a forcible entry into the house of prosecturix from
the thatched roof and committed, rape. On raising of a cry by the prosecutrix
-. "" one of the neighbours rushed towards and thereafter FIR was lodged_ The
medical report indicated an injury on the private part of the victim. Blood
and semen stains were found on the petticoat of the prosecutrix- The Trial E
Court found the evidence of the prosecutrix trustworthy as it was
corroborated by medical evidence.. It rejected the defence plea that the semen
stains on the petticoat of the prosecutrix might have been caused by her
physical contact with her husband. Accordingly, it convicted the accused
persons and sentenced them to five years imprisonment On appeal, High
Court acquitted the accused persons. It disbelieved the version of the F
prosecution and held that (i) injury found on the private part of the
prosecturix could have been self-inflicted; (ii) semen stains found on the
petticoat of the prosecturix might have been caused by her physical contact
with her husband. It also held that there were lapses in the prosecution because
the neighbour of the victim had not been examined as a witness and that no G
evidence had been collected with regard to forcible entry of the accused in
the house of prosecutrix.

State preferred appeals before this Court challenging the acquittal of
respondents-accused.
H
173
174 SUPREME COURT REPORTS [2002) 3 S.C.R.

A Allowing the appeal, the Court

HELD: I. The testimony of the prosecutrix appears truthful and
trustworthy being without any embellishments and exaggerations. She is
corroborated by her immediate and subsequent conduct as also the medical
evidence. The High Court re-appreciated evidence and rejected the testimony
B of the prosecturix on extremely insignificant alleged infirmities and adopted
strange reasoning to convert the verdict of conviction into acquittal. It did
not at all bestow any importance to the fact that victim of rape was not a
woman of easy virtues. There is no suggestion that the prosecutrix had any
grudge or reason to falsely implicate the two accused in such a heinous crime
C in which she herself was ravished and her honour was at stake. High Court
also ventured into a wild surmise that the injury found on her private parts
could have been self-inflicted. It is most unlikely that only to falsely implicate
the accused the prosecutrix would inflict injury on her private parts. Non-
examination of one of the neighbours who had rushed towards her house after
a call by her is also not a serious infirmity in the prosecution case as he was
D not the witness to the commission of the offence. Consequently the acquittal.
·order passed by the High Court is set aside.
(175-G; 176-G, H; 177-G, H; 178-A, BJ

State of Punjab v. Gurmit Singh, (1996) 2 SCC, relied on.

\E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
533 of 1994.

"From the Judgment and Order dated 12.1.94. of the Orissa High Court
in Crl. A. No. 236 of 1990.

Jana Kalyan Das for the Appellant.
F
K.K. Rohtagi and Praveen Jain for the Respondents.

The Judgment of the Court was delivered by

DHARMADHIKARI, J. The Court of Sessions Judge, Balasore (State
G of Orissa) by Judgment dated 17. g, 1980 in sessions trial No. 34 of 1990
convicted the two accused (the respondents herein) for commission of offence
under Section 376 IPC and sentenced them to five years imprisonment.
..· .
The High Court of Orissa at Cuttack in Crl. Appeal No. 236 of 1990
by judgment dated 12.1.1994 on re-appreciation of evidence acquitted the
H accused against which the State of Orissa has preferred this appeal.
• STATE OF ORIS SA v. THAKARA BE SRA [DHARMADHIKARI, J.] 175

The case of the prosecution is that prosecutrix PW! Promila Ranjit A
went to Police Station Baliapal, district Balasore on 5.11.89 at about 10. 30
in the morning and lodged FIR to give full narration of the incident of rape
committed by accused on her. She supported her version in FIR in her
examination as PW I in Court. It is stated by her that in the intervening night
between 4-5 of November, 1989 while her husband had gone to his sister's B
house at Prapatpur sometime in the midnight when she was sleeping alone
with her three year old son, somebody knocked the door of her house waking
her up by the name of her son. She could identify that the caller was accused
Baya Tudu of her village. She did not open the door at the odd hour in the
night, as her husband was not at home. The accused Thakara Besra thereafter
entered by making a passage from the thatched roof followed by the co- C
accused Baya who also similarly made a forcible entry into the room. One
of the accused then put off the chimney lamp burning in the room. Both of

-- them then closed mouth of the prosecutrix and threatened her. They then
subjected her to forcible sexual intercourse one after the other. After thus
satisfying their sexual lust, from the door they made good their escape. The
prosecutrix raised a cry whereupon one of the neighbours Anandi Behera D
rushed towards her house. Next day the prosecutrix was carried in a trolly to
police station which is seven kilometers away from the place of occurrence.
She lodged a report at 10. 30 hrs in morning of5.l 1.1989. The learned judge
of the trial court found the evidence of the prosecutrix to be truthfu.l and
trust-worthy. He rejected all hypothetical defence pleas taken by the accused E
and thus convicted and sentenced both of them. Looking to their young age,
instead of imposing on them minimum prescribed sentence of ten years,
sentence of five years· was imposed on each of them.

After hearing learned counsel .appearing for the State who strongly
assailed the judgment of acquittal passed by the High Court and after perusing F
the record with the judgment of the courts below, to put it very mildly, we
are extremely shocked by the manner in which the learned judge of the High
Court re-appreciated evidence and rejected the testimony. of the prosecutrix
on extremely insignificant alleged infirmities and adopted strange reasoning
to convert the verdict of conviction into acquittal.
G
In the course of investigation the police seized the petticoat of the
prosecutrix which she was wearing at the time of fqrcible sexual intercourse
with her and also the Kantha and mat on which she was sleeping. The
prosecutrix was sent for medical examination and was found to have stains
of human blood and semen. The prosecutrix was medically examined by Dr. H
176 SUPREME COURT REPORTS [2002] 3 S.C.R.
••
A Kalpana Kar PW2 on 5.11.1989 at 4.30 P.M. and she found a bruise of 1 cm
x 1cm lf.icm on the lateral side of the left of the genital camiel. The bruise
was found to have _been caused within 24 hours.

The accused were also medically examined on 6. 11. 1989 by the
Medical Officer Braja Mohan Patra PW3 who reported that because of the
B non-cooperation of the· accused their semen could not be collected. There is
also evidence of Amiya Samantaray PW4, the Scientific Officer of Forensic
Science Laboratory, Bhubaneswar. According to his chemical examination
. report (Ex. 3) there was presence of b1ood & semen's stains on the article
including petticoat sent to him for chemical examination. According to .the
C learned trial judge the version of the prosecutrix was corroborated by the
medical evidence and the evidence of chemical report of the Forensic Science
. Laboratory. The High Court in the judgment of acquittal has disbelieved the
prosecutrix. Her apparent truthful testimony was discarded on wild sunnises
and strange reasonings. With regard to injuries found on her private parts the
High court observed that there is no evidence, as to how long before and
D after the alleged offence the husband of the prosecutrix was absent as he had
left in the evening of 4.11.1989 and the possibility of her sexual contact with
her husband cannot be ruled out. The High Court also took note of statement
made in cross-examination by the doctor that the injury can be self-inflicted.
The High Court gave no importance to the report of the chemical examiner
E and serologist which showed blood and semen stains on the petticoat of the
prosecutrix. It is observed that the possibility of semen being that of her
husband is not ruled out. The High Court also saw some infirmity in the
prosecution case as Anadi Behera the neighbour who is alleged to have
rushed towards her hous~ after she had given a cry and when the accused ran
away, was not examined as witness. The High Court also took note of the
F omission of the investigating officer (PW-5) in not making any attempt to
collect any evidence of forcible entry of the accused in the house through the
roof. It is on the above reasoning that the learned judge of the High Court
acquitted the accused.

It is distressing to note that the learned judge of the High Court did
G not at all bestow any importance to the fact that victim of rape was not a
woman of easy virtues. There has been no suggestion made to her in a cross
examination or in defence plea of the accused in the course of his examination
under Section 313 of the Criminal Procedure Code that the prosecutrix had .i.__ •
any grudge or reason to falsely implicate the two accused in such a heinous
H crime in which she herself was ravished and her honour was at stake. We
+
STATE OF ORISSA v. THAKARA BESRA [DHARMADHIKARI, J.] 177

.... consider it necessary to reiterate the following observations of this court in A
_, State of Punjab .v. Gurmit Singh, [ 1996] 2 SCC 384 containing the guidance
given to the courts while appreciating evidence of prosecutrix in cases of
rape:
"We must remember that a rapist not only violates the victim's privacy
and personal integrity, but inevitably cause serious psychological as B
' well as physical harm in the process. Rape is not merely a physical
assault it is often destructive of the whole personality of the victim.
A murderer destroys the physical body of his victim a rapist degrades
_,.
the very soul of the helpless female. The Court, therefore, shoulder
a great responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity. The Courts c
should examine the broader probabilities of a case and not get swayed
by minor contradictions or insignificant discrepancies in the statement
of the prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of the prosecutrix
' inspires confidence, it must be relied upon without seeking D
corroboration of her statement in material particulars. If for some
reason the Court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be appreciated in the background
of the entire case and the trial court must be alive to its responsibility E
and be sensitive while dealing with case involving sexual
molestations."
The learned judge of the High Court has dealt with alleged infirmities
pointed out on behalf of the accused in the prosecution case. The learned
..,
... judge has given no importance to the fact that the trial judge rejected the
defence plea that the semen stains on the petticoat of the prosecutrix might
F

have been caused by her physical contact with her husband. There was nothing
to disbelieve, according to the trial judge - the version of the prosecutrix that
her husband had left the house on the previous afternoon and was absent at
the time of incident and when she made the report to the police. The learned G
Judge in appeal then ventured into a wild surmise that the injury found on
her private parts could have been self-inflicted. It is most unlikely that only
to falsely implicate the accused the prosecutrix would inflict injury on her
j.
private parts. Non-examination of one of the neighbours who had rushed
towards her house after a call by her is also not a serious infirmity in the
prosecution case as he was not the witness of the commission of the offence. H
178 SUPREME COURT REPORTS [2002] 3 S.C.R.

A The testimony of the prosecutrix appears truthful and trustworthy being without
any embellishments and exaggerations. She is corroborated by her immediate
and subsequent conduct as also the medical evidence.

Consequently, the appeal is allowed. The judgment of acquittal dated
12.1.994 passed by the High Court in Crl. A. No. 236 of 1990 is set aside
B and the judgment of conviction and sentence dated 17-8-1990 of the Sessions
Judge in Sessions Trial No. 34 of 1990 is maintained. The Bail-bonds of the
accused are cancelled and they be re-arrested for sending them to jail to
suffer the remaining sentence.

T.N.A. Appeal allowed.

1,
j

.... ,..,_

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