Fazal Ali, J. - (1.) In these appeals by special leave the appellant Pratap Misra (hereinafter referred to as A-1) in Criminal Appeal No. 564 of 1976 and appellant Suresh Chandra Sahu referred to as A-2 and Khitish Chandra Paltasingh referred to as A-3 in Criminal Appeal No. 565 of 1976 have been convicted under S. 452, I. P. C. and sentenced to rigorous imprisonment for one year, under S. 376, I. P. C. and sentenced to rigorous imprisonment for five years, under S. 342 I.P.C. to rigorous imprisonment for two months, and under S. 313 I. P. C. to rigorous imprisonment for three years. Suresh Chandra Sahu A-2 was also convicted under S. 325 I. P. C. and sentenced to rigorous imprisonment for one year. The learned Sessions Judge directed the sentences to run concurrently. The appellants filed appeals against their convictions and sentences to the High Court of Orissa which affirmed the judgment of the Sessions Judge and upheld the convictions as also the sentences passed against each of the appellants. The appellants then moved the High Court for a certificate of fitness for leave to appeal to this Court, which having been refused they obtained special leave from this Court, and hence these appeals.
(2.) Ordinarily this Court does not interfere with the concurrent findings of fact arrived at by the Courts below, but after hearing counsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have completely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact. Furthermore, none of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual intercourse with the prosecutrix not against her will but with her consent and the connivance of her husband P. W. 2. The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals.
(3.) Put briefly the prosecution case is as follows. P. W. 1 Pramila Kumari Rout aged about 23 years was the wife of P. W. 2 Bata Krishna Rout and according to the finding of the High Court she was living in a state of concubinage with P. W. 2 who had already married a wife who was living at the time when P. W. 1 started living with him. The High Court recorded its finding at page No. 15 of Paper Book Vol. I as under: "It is, therefore, clear that he was having legally wedded wife Basanthi by the time he came in contact with P. W. 1. Thus it is clear that page No. W. 2 is having illicit intimacy with P. W. 1. Even if their version that their marriage had taken place by exchange of garlands is accepted such a marriage cannot be held to be valid while their previous marriages were subsisting. At worst, P. W. 1 can be treated as the concubine of P. W. 2" P. Ws. 1 and 2 were the residents of Dubagadin within the limits of Dharamsala Police Station in Puri District. P. W. 1 was carrying a child and her pregnancy was running in the fifth month at the time of the incident. It is also admitted that the prosecutrix P. W. 1 was also a midwife and had served in that capacity with a Doctor. On April 19, 1972, the prosecutrix persuaded her husband P. W. 2 to take her to Nandan Kanan for a pleasure trip. It appears from the evidence that Nandan Kanan was a beauty spot being constantly visited by tourists and other persons. There is a Rest House as also tourist lodges in Nandan Kanan. P. Ws. 1 and 2 reached Nandan Kanan in the afternoon at about 3.40 p.m. on April 19, 1972 and contacted the chowkidar of the Tourist Lodge for giving them accommodation. Fortunately since Lodge No. 4 was vacant, P. W. 3 the chowkidar of the said Tourist Lodge allotted Lodge No. 4 to P. Ws. 1 and 2 after getting the necessary entries made in the accommodation register. Thereafter P. Ws. 1 and 2 went out for sight-seeing and returned to the Lodge at about 6.30 p.m. At that time a number of N.C.C. students including appellants 1 to 3 who were students of the Orissa University of Agriculture and Technology had also visited Nandan Kanan to practice horse-riding and were led by their Commander and other N.C.C. Officer. After nightfall P.Ws. 1 and 2 bolted their room from inside, spread the bed-sheets on the floor and started taking their dinner. While P. Ws. 1 and 2 were taking their dinner the appellants approached them through the window and requested them to open the door. The appellants are also alleged to have disclosed their complete identity to P. W. 2 who asked them to come after they had finished their food. The appellants then went away but returned soon thereafter and insisted that the door should be opened. P. W. 2 opened the door of the Lodge followed by P. W. 1. As soon as P. W. 2 had opened the door. A-2 and A-3 forcibly dragged away P. W. 2, through the verandah and took him to two trees about 15 feet away. Immedicately thereafter A-1 entered the room, threatened P. W. 1 and after making her lie on the bed-sheet already spread on the floor, he is alleged to have raped her in spite of her profests. P. W. 1 felt pain all over the body. It is said that while A-1 had entered the room he was dressed only in a white-stripped towel and was wearing no other garment. The evidence on this point is by no means consistent, and we will refer to this part of the case a little later. After having raped P. W. 1. A-1 left the room and was soon followed by A-2 who also in spite of the protestation of P. W. 1 raped her. The prosecutrix is alleged to have shouted at the top of her voice but no one tried to protect her. While P. W. 2 was being detained by A-1 and A-3, P. W. 3 the chowkidar arried and found P. W. 2 sobbing. P. W. 3 then went away to inform his officers about the incident. After A-2 came out of the room. A-3 entered the room and is said to have raped P. W. 1. While A-3 was raping the prosecutrix, P. W. 3 returned with P. Ws. 4, 5 and others and remonstrated with A-1 and A-2 who gave a call to A-3 to come out of the room as people had come. P. W. 2 was also released by A-1 and A-2 and soon thereafter P. W. 4 asked P. W. 2 to go into the room and bolt the same from inside. P. W. 4 asked the three appellants as to why they had left their lodge and come to Lodge No.4. This led to some altercation in the course of which A-2 is said to have given a fist blow on the nose of P. W. 4 as a result of which P. W. 4 fell down. P. W. 3 informed P.W. 6 and a number of forest employees including P. W. 6 who also arrived at the scene, when P. W. 1 on being asked narrated the harrowing experience she had gone through. It appears that one of the persons who had arrived at the spot was the Forest Range Ali who immediately brought the Police Assistant Sub-Inspector P. W. 12 at the spot. First Information Report was lodged by P. W. 1 before the A. S. I. at about 11.30 P. M. on April 19, 1972. Soon thereafter some articles in the nature of skirt and underwear of P. W. 1, a towel and a bed-sheet were seized and a search list was prepared. On the morning of April 20, 1972, P. W. 1 was produced before the police station Chandaka where she was examined by P. W. 7 and was later produced before P. W. 8 Dr. (Mrs.) Mimati Padhi at about 5 P. M. P.W. 1 was also examined by P. W. 10 who was working as Professor and Head of the Department of Forensic Medicine and Toxicology, who admitted her as an indoor patient for evacuation of the uterine contents. According to the Doctor complete evacuation was done on May 13, 1972. In other words, the prosecution case was that a few days after the incident the prosecutrix had an abortion which was really caused because of the rape committed by the three appellants one after the other and this formed the backbone of the prosecution case. We shall, however, point out that the Courts below did not consider that this aspect of the case was not only not proved but positively disproved by the medical evidence of P. Ws. 8 and 10 which has not been rejected by the Courts below on this ground. The Sessions Judge, however, seems to have entered into the realm of speculation in trying to explain away the effect of medical evidence.;