The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 256 of 1997 (Arising out of the Judgment of Conviction dated 12.08.1997 passed by Shri M. C. Ray, Addl. learned Sessions Judge, Balasore, in Sessions Trial No. 19/204 of 1996, for the offences under Section 457 and 376 of I.P.C.) ---------- Susanta Mukhi …. Appellant Mr. S. K. Lenka, Advocate (Amicus Curiae) -versus- State of Orissa …. Respondent Mr. S. Patra, ASC P R E S E N T: HONOURABLE SHRI JUSTICE CHITTARANJAN DASH Date of Judgment: 28.03.2024 Chittaranjan Dash, J. 1. This Appeal is directed against the judgment and order dated 12.08.1997 passed by the learned Additional Sessions Judge, Balasore in S.T. Case No.19/204 of 1996 arising out of G.R. Case No.136 of 1996 of the Court of the J.M.F.C., Jaleswar. The Appellant Susanta Mukhi stood charge U/s. 457/376 of IPC (hereinafter in short called IPC) for having committed lurking house- trespass by night, and rape on the victim. The learned trial court found the prosecution case to be beyond reasonable doubt and held the Appellant guilty, CRA No. 256 of 1997 Page 1 of 12 // 2 // convicted him there under and sentenced to undergo R.I. for seven years for the offence U/s.376 IPC and imprisonment for one year for the offence U/s. 457 IPC with a further direction to run the sentences concurrently. 2.
Legal Reasoning
The case of the prosecution as unfurled before the trial court is that in the intervening night of 16/17.04.1996, the Appellant Susanta Mukhi of Village Nampo forced his entry into the house of the victim and committed rape on the eldest daughter of the Informant, P.W.5. It is alleged that in the occurrence night, the Appellant came to the house of the victim and requested the Informant to go to a pond in the village to catch fish. At first, she was reluctant to go to the pond to catch fish as her husband was absent and her small children including the victim daughter were alone at her home. The Appellant persuaded the Informant in different ways and ultimately succeeded whereupon the Informant accompanied the Appellant to the pond. The Informant closed the Bamboo Tati door from outside and went with the Appellant leaving her children at home including the victim who was aged about 14 years. The Appellant also told that Santosh and Tuna would accompany them. Accordingly, the Appellant gave her a torch light and told her to see fish in the pond in the focus of the torch light. In the meanwhile, the Appellant under the plea to attend the call of nature left the company of the Informant. After 5 to 10 minutes, the Appellant did not return, which led to the Informant entertain doubt, so she moved towards her home. When she arrived at her home, she saw that the Tati door was opened and on the focus of the torch light, she found the Appellant engaged in committing rape on her daughter. She scolded the Appellant and tried to assault him upon which the Appellant pushed her and ran away. However, on the scream raised by the Informant, the persons from neighbourhood appeared there before whom the Informant narrated the incident. In the morning, the victim went to Nampo CRA No. 256 of 1997 Page 2 of 12 // 3 // Outpost and lodged the report which was entered in a Station Dairy vide No. 275 and was sent to the Jaleswar Police Station for registration of the FIR and accordingly the formal FIR was registered vide Jaleswar P.S. Case No. 50 of 1996 followed by investigation. 3. In course of the investigation, P.W. 8, the A.S.I. of Police from Nampo Outpost took up the investigation. He visited spot, prepared the spot map vide Ext. 9, seized the wearing apparel of the accused under Ext.10/1, seized the incriminating article handed over by the medical officer after the examination of the victim which he dispatched for chemical examination under Ext.1. The I.O. took step for the arrest of the accused and handed over the charge of investigation to the O.I.C., Baliapal P.S. The OIC, Baliapal P.S. (P.W.7) in course of investigation, arrested the accused, forwarded him into the custody, he also sent him for medical examination to District Head Quarter Hospital, Balasore, received the medical report of the accused under Ext.4, received the chemical examination report under Ext.6 and upon completion of the investigation submitted the charge-sheet. 4. 5. The case of the defense is one of complete denial and false implication. The further plea of the defense is that due to the dispute with regard to the landed property, a false case has been foisted against him. 6. To bring home the charges, the prosecution examined eight witnesses in all. P.W.1 is the victim. P.W.2 is the radiologist who examined the victim on the requisition being sent by P.W.3, Dr. Indrani Hazira who examined the victim, P.W.4 is the Assistant Surgeon, P.W.5 is the Informant and P.W.6 is the maternal aunt of the accused being the grant mother of the victim. P.W.7 and P.W.8 are the Investigating Officers. CRA No. 256 of 1997 Page 3 of 12 // 4 // 7. The learned trial court having believed the evidence of the victim as well as the Informant coupled with the medical evidence found the case of the prosecution to be cogent and held the Appellant guilty in the offences alleged. 8. It is submitted by the learned counsel for the Appellant that the evidence led through the prosecution witnesses more fully the Informant and that of victim is not free from doubt. Elaborating his submission, the learned counsel argued that having regard to the circumstances appearing at the place of occurrence, it would not have been possible on the part of the Appellant to commit rape. Further the statement of the victim to the effect that the Appellant ejaculated and the semen fell on her wearing apparel being not supported by the report of the chemical examination, the veracity of the testimony of the victim found to be not free from embellishment. As far as the evidence of the Informant is concerned, she has also not given the true picture while implicating the Appellant. He further submits that there are no independent witnesses and all the witnesses are interested. The conclusion arrived at is wrong and the entire prosecution case is full of suspicion and surmises. 9. The learned counsel for the State on the other hand submitted that the finding of the learned trial court is based on the evidence laid before it by the prosecution and the version of the witnesses being consistent and coherent right from the narration made from the F.I.R. till the witnesses were incisive cross examination. He further submitted that the witnesses have well-stood the test of cross-examination and found no way contradicted to their statement made u/s 161 Cr.P.C. and there being no material to elicited by the defence to disbelieve their testimonies. According to the learned counsel, the evidence being free from shadow of doubt has rightly been assessed by the court in accepting the case of prosecution to be cogent and arrived at a just conclusion CRA No. 256 of 1997 Page 4 of 12 // 5 // holding the perpetrator of crime and convicted him of the offence. The non- examination of some witnesses pointed out by the app in the circumstances doesn’t seem fatal to the case and further the plea of the appellant that a case has been hatched against the app merely on the ground of existence of a land dispute cannot be held sufficient to probabilising the case on the face of an otherwise cogent and robust evidence led from the side of the prosecution. 10. In order to appreciate the aforesaid submissions made by the parties it is cogent to the relevant provisions with respect to the charges are required to be referred to – Indian Penal Code, 1860 Section 375: Rape A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: (1) (2) Without her consent. (3) With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. (4) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (5) With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Against her will. CRA No. 256 of 1997 Page 5 of 12 // 6 // Substance, she is unable to understand the nature and consequences of that to which she gives consent. (6) With or without her consent, when she is under eighteen years of age. (7) When she is unable to communicate consent. *** Section 376: Punishment for Rape (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) (3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim. Section 457: Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment Whoever commits lurking house-trespass by night, or house-breaking by night in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; And, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years. 11. In her evidence on oath, P.W.1, the victim has categorically and graphically narrated the incident of rape that took place on 16.04.1996 between 12 A.M. to 12:30 A.M. in absence of her father who was away from home joining the opera where he was playing an instrument. She stated that while she was sleeping at her house with her mother, two younger sisters and her younger brother, the Appellant Susanta whom the victim addressed as CRA No. 256 of 1997 Page 6 of 12 // 7 // Kaka, younger cousin of his father by relation, came to their house and asked her mother to go to catch a fish. At first, her mother denied to go to the tank in the odd hours of the night but the accused insisted her mother and with much reluctance she went with accused to the tank of the village to bring some fish and tied the bamboo split door closed. The accused-appellant Susanta after some time came to their house after the departure of her mother; untied the door rope and entered inside the house. Immediately he forcibly closed her mouth by means of his hand and raped her. At that time, she was wearing frock and panty which he tore. She felt pain and protested strongly against the action of the accused but failed. During this time, the mother of the victim came back with torch light in her hand. She saw the accused raping her daughter, assaulted him and abused him in filthy language for his heinous act. She further stated that the semen of the accused ejaculated and fell on the wearing apparels of the victim. The accused started to run away by pushing the mother. The victim and her mother started shouting and hearing their hullah, the villagers arrived at the spot and watched the accused run away. The statement of the victim is corroborated by her mother (P.W.5.) in her evidence. 12. In her sworn testimony, P.W.5 has stated that the occurrence took place on the midnight of last Baisakh when her husband was absent from home and was out to perform at an opera. As herself, her three daughters, including the victim girl who was 14 years old then and one son were sleeping, the Appellant, who she has mentioned as her brother-in-law, with her brothers, came to her house and called her to catch fish. At first, she refused to go with the accused as her small children were sleeping at home and her husband was absent. After several persistent requests made by the appellant saying that fishing will be over shortly, P.W.5 finally agreed to accompany them. She CRA No. 256 of 1997 Page 7 of 12 // 8 // closed the bamboo Tati door from outside and went along with them. She also mentions that the concerned tank, namely Naveria, which was 1 furlong (about 200m) away from the house of the Informant, was taken on lease collectively by her husband, the Appellant and some other villagers. The appellant gave her a torch to look for fish in the tank and shortly excused himself to attend nature’s call. P.W.5, when she could not find any fish in the tank and the appellant did not make his return to the tank, entertained doubt. She took the torch from Santosh and went back to her house. On reaching, she found the Tati door open, so, she focused the torchlight inside and saw that the appellant was raping her daughter. She abused him in filthy language and assaulted him on his back by means of a silver thali. She tried to catch hold of the appellant but he pushed her and ran away. After raising hullah, some of the neighbours gathered and she narrated the whole thing to them. P.W.5 in her statement has mentioned that she tried to chase the appellant up to 100 cubits but he emerged in the darkness. P.W.6 is a post-occurrence witness who came after hearing the hullah of P.W.5. She saw P.W.5 chasing the appellant when they focused the torch light. 13. P.W.3, the lady asst. surgeon in her sworn testimony categorically stated that she examined the tests done by her on the victim and her medical opinion on the subject. The victim was sent for medical examination on police requisition on 18.04.1996. Since the victim girl had already taken bath by the time she had gone for examination, no foreign hair or foreign body was found in the body of the victim. In the vaginal swab that was collected and examined, no living or dead spermatozoa was detected under the microscope. P.W.3 further stated that there was no external or internal injury found on her vulva or vagina and that her hymen was intact. However, she has also stated that the rape can be possible without the rupture of hymen. If the victim CRA No. 256 of 1997 Page 8 of 12 // 9 // changes her clothes, then there may not be possibility of detection of stain on the wearing clothes, furthermore, if the victim takes a bath before examination, then there is no chance of detecting the living spermatozoa in the private part of the victim. Nevertheless, she has stated that the possibility of rape cannot be ruled out. 14. In view of the evidence discussed as above, the primary question before this court while reassessing the evidence is with regard to the testimony of the prosecutrix. Having regard to the time of the occurrence it is quite natural to accept that the petitioner ought to have gone asleep particularly in village life, the time by which the occurrence took place is the time when normally the villagers prefer to go asleep. As stated by the victim she was sleeping along with her younger siblings besides her mother. P.W.5 has stated in her cross- examination that her husband and some villagers including the Appellant had taken a tank called Naveria on lease from one Kulamani Dey. She was at first reluctant agreeing to the request of the appellant to go and catch fish in the late hour of the night and that her husband had already brought some fish on the same day during the afternoon, but eventually went for the reason that the appellant happened to be her younger brother-in-law and because the tank belonged to her as well. It is only when the appellant left to attend nature’s call and did not return even after 10 minutes of time had already lapsed, she entertained doubt. She then returned to her home. From the above it appears that the absence of mother at that hour, was only on the persuasion of appellant who had an ill motive to see her out and there is nothing to disbelieve the witness evidence of P.W.1 and 5. The evil intention of the appellant somehow could not be apprehended by the mother. Now the statement of P.W.5 that on return she found the appellant committing rape on her daughter and that she abused Appellant with filthy language and assaulted CRA No. 256 of 1997 Page 9 of 12 // 10 // him on his back by means of a silver thali and that the appellant escaped from the spot being consistent and reaction which is quite natural too cannot be seen with doubt to attribute the interestedness of P.W.5. The version of the victim, hence, stands corroborated and found to be truthful and reliable.
Legal Reasoning
15. The argument by the learned counsel for the Appellant that the evidence of P.W.5 being the mother of the victim (P.W.1), cannot be relied upon as she being an interested witness is not acceptable for the reason that P.W.5 is a witness whose presence on the scene of occurrence was completely natural and no mother will ever involve her daughter in an offence such heinous only to gain benefit from the situation more so when no such benefit has been attained as a result of this case. 16. The Apex Court in the matter of State of Rajasthan V. Kalki (1981) 2 SCC 752, has held that – “True, it is she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be ‘interested.’ In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents.” 17. As far the evidence of the doctor is concerned, the mere fact that the hymen was intact and there was no actual wound on her private parts is not conclusive of the fact that she was not subjected to rape. It is possible to legally commit the offence of rape without producing any injury to the genitals or leaving any seminal stains. It is for this reason that the doctor categorically ruled out the possibility of the victim having not subjected to CRA No. 256 of 1997 Page 10 of 12 // 11 // rape. The Apex Court in Aman Kumar and Anr. Vs. State of Haryana 2004 Cri LJ 1399 had held that: “ In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity………….. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.” 18. Needless to say, that in a charge of rape the evidence should be evaluated considering the broader probabilities of a case, rather than being influenced by minor contradictions or discrepancies in the prosecutrix's statement that are not crucial enough to discredit an otherwise reliable prosecution case. If the evidence of the victim instills confidence, her version needs to be trusted unless it needs any additional corroboration. The prosecutrix's version assessed with the evidence of her mother (P.W.5) has been proved to be truthful and unbiased from the above discussion. 19. Further, the fact that the victim was a minor being 15 years at the time of occurrence is not under challenged by the defence. In the instant case, even in supposition we believe that the alleged act was consensual in nature, it must be observed that the legislature introduced the concept of Rape in the provisions of IPC with the description Sixthly because of the sole and the most important objective of protecting a minor as they are incapable of making a rational decision especially of giving consent. The consent of a minor is to be treated as not a legitimate consent and invalid. It has been established that the victim girl is less than 16 years and considering the fact that the Appellant is a grown-up man and an agnatic relative of the victim’s family as deposed by CRA No. 256 of 1997 Page 11 of 12 // 12 // P.Ws.1, 5 and 6, he was well aware of her age as well. Responsibility is, therefore, cast upon the Appellant to not have exploited the situation. It cannot be seen as a mitigating circumstance and the law leaves no room to entertain such plea. Moreover, the appellant was seen absconding from the place of occurrence in guilt and was also chased by the mother of the victim. P.W.1 has also mentioned that she resisted the concerned act but couldn’t overpower him and since bore pain in her vagina for several days. Due to the limited understanding of a minor girl, it has to be noted that the girl is delusional about the meaning of the concept of ‘consent’ or its consequences. The subject of voluntary consent does not exist in the instant case as the consent of a minor is immaterial. Hence, the offence of rape is proved beyond reasonable doubt and the learned trial court has rightly found the appellant guilty thereof and convicted under section 376 IPC. 20. As regards the applicability of Section 457 IPC, it has been proved beyond reasonable doubt that the Appellant made a lurking house-trespass by entering into the house of the victim at the odd hour of the night with the knowledge and intention to commit rape and as such come under the ambit of offence under section 457 IPC and hence been correctly convicted thereunder. 21. From the discussions as above, the findings recorded by the learned trial court is found to be legal and justified and the conviction of the Appellant- Accused is confirmed. Since the sentence awarded is absolutely in accordance with minimum prescribed, there is nothing to be interfered with. 22. As a result, the Appeal stands dismissed being devoid of merit. Judge (Chittaranjan Dash) Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Bijay Reason: Authentication Location: HIGH COURT OF ORISSA Date: 30-Mar-2024 12:36:27 CRA No. 256 of 1997 Page 12 of 12