LexGAGAN BIHARI SAMAL AND ANR versus STATE OF ORISSA
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GAGAN BIHARI SAMAL AND ANR. v. STATE OF ORISSA JULY 9, 1991 [B.C. RAY AND S.C. AGRAWAL, JJ.] Constitution of India: Article 136-Special leave petition-Con- cutrent findings of facts-Re-appraisal of evidence-Whether could be considered. A B Indian Penal Code, 1860: S. 376-Rape-Trial-Uncontroverted C testimon)' of victim-Making out the offence against the accused persons-Conviction and sentence awarded° by trial court-Maintained by appellate court and High Court in revision-Validity of-Corro- boration not the sine qua non for conviction. Evidence Act, 1872: S. 114A-Evidence-Victim girl subjected D to sexual assault forcibly-Protest and struggle by victim-Absence of consent-Presumption of. Criminal Procedure Code, 1973: S. 401-Revisional jurisdiction -High Court-Whether could reappraise evidence. The appellants forcibly took P. W. 2 to a lonely place on E 19 .3 .1983, made her to drink liquor and committed sexnal assault on her. Thereafter they left her in a truck. While the said truck was unloading materials near a village, the victim stealthily left the truck and concealed herself near a fence. P.W. 7 ~her and tOOk her_., the house of P. W. 8, one of her distant relative, from where her lather F P. W. 1 took her hack and lodged the report at the police station. A case nnder ss. 363 and 376 read withs. 34 I.P.C. was registered against both the appellants. Aller completion ofthe investigation, a charge sheet was submitted and the appellants were tried for the aforesaid offences. The appellants denied the prosecution allegations and pleaded G that they were falsely implicated because of refusal by one of them to marry the girl and previons enmity with the other. The Assistant Sessions Judge rejected the defence pleas, and fonnd that the appellants committed rape on the victim withont her consent, and relying on s. 114A of the Evidence Act, convicted the appellants under s. 376(2)(g), I.P.C. and sentenced each of them to rigorous imprisonment for three H 839 840 SUPREME COURT REPORTS [ 1991) 2 S.C.R. A years. Since the victim was more than 16 years of age, the appellants were acquitted of the charge under s. 363, I.P.C. On dismissal of their appeal against the conviction and sentence ... by the Addi. Session Judge, the appellants filed a revision application B before the High Court. The High Court duly considered and appraised the evidence and held that the appellants committed rape on PW 2 forcibly without her ·consent. Ultimately the appellants came in appeal by special leave to this Court. c Dismissing the appeal, this Court, HELD: l. In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape. However, corro- boration is not the sine que non for a conviction in a rape case. In the D Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. [843D-F] Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 and Rameshwar v. The State of Rajasthan, [1952] SCR 377, relied E on. 2. In the instant case, the victim girl clearly stated in. her evidence that she had been taken to a solitary house in the hills by appellant no. l where she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the :p accused-appellants one after the other. Her uncontroverted testiinony was accepted by all the courts and they concurrently found that she had been raped without her consent. [844F -G] 3. Apart from the legal presumption that flows from the provi- sions of s. ll4A of the Evidence Act, it is clearly evident in the fustant G case, that the victim girl protested and struggled while she was sub- ' jected to sexual assault forcibly by the accused persons and this clearly evinces alJsenre of wmem oo her part in sudi sexual intercourse. [844H; 845A] 4. The High Court rightly held that it cannot be expected to re-appraise the evidence as a· court of appeal while exercising its revi- H sional power under s. 401 Cr. P.C. [845E-F] ' G.B. SAMAL v. STATE OF ORISSA [RAY, J.] 841 State ofOrissa v. Nakula Sahu and Ors., AIR 1979 SC 663, relied A on. - S. This Court hearing an appeal by special leave cannot consider ~ .. and re-appraise the evidence once again in the face of concnrrent find- ings of facts arrived at by all the courts below. [84SF] B CRIMIN
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