GAGAN BIHARI SAMAL AND ANR v. STATE OF ORISSA

Citation: [1991] 2 S.C.R. 839

Court: Supreme Court of India

Bench: B.C. RAY, S.C. AGRAWAL

Case summary

The learned Assistant Sessions Judge after considering the evidences on record rejected the defence pleas, and found that the accused appellants committed rape on the victim girl without her consent relying on the provisions of Section 114(A) of the Evidence Act, and...

Judgment text

The Judgment of the Court was delivered by RAY, J. Special leave granted. Arguments heard. I "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before ) there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind ofthe judge, The only 0 rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or ihem. There is no rule of practice that there must, in very case, be corroboration before a conviction can be allowed to stand. " l' In the instant appeal as has been stated hereinbefore that P. W. 2, the victim girl has clearly stated in her evidence that she had been taken to a solitary house in the hills by the appellant no. 1 Gagan Bihari Sama!

and there she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other. Her uncontroverted testimony has been accepted by all the courts and the courts concurrently found that she was raped without her consent. It has been tried to be contended on behalf of the appellants that the amended section 114(A) was brought into the Evidence Act after the commission of the offence for which the appellants were charged and as such no assumption can be made on the basis of this provision. This submissio! l. is,SJf no · avail in as much as it is clearly evident that the victim girl protested and struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on part of the victim girl in such sexual intercourse apart from the legal presumption that follows from the provisions of Section 114(A) of the Evidence Act.

The learned counsel on behalf of the appellants further tried to argue on the basis of some minor discrepancies in the evidences of P. W. 2 that the prosecution case was a false one and it has been foisted on the appellants due to enmity and also due to accused Prafulla, one of the appellants, having disagreed to marry the victim girl. The courts below have clearly found that the defence case was not at all substantiated by any cogent evidence. So this contention is not at all tenable. It is apropos to mention here the observation made by this Court in the case of State of Orissa v. Nakula Sahu and Ors. , AIR 1979 SC 663 which are set-out herein: "Although the revisional power of the High Court under Section 439 read with section 435 is as wide as the power of Court of appeal under Sec.

423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Inspite of the wide language of Section 435, the High Court is not expected to act under Section 435 or Section 439 as if it is hearing an appeal. " - The High Court of Orissa referred to the said observation and rightly held that the High Court cannot be expected to re-appraise the evidence as a court of appeal. This Court hearing an appeal by special leave cannot consider and re-appraise the evidences once again in the face of concurrent findings of facts arrived at by all the courts below. For the reasons aforesaid we dismiss the appeal and uphold the conviction and sentence as found by the High Court. R. P. Appeal dismissed.