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IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.01 of 2019 From judgment and order dated 31.03.2018 passed by the Additional Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.191/54 of 2016-15. --------------------------- Sudam Dehury ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Malaya Kumar Swain For Respondent: - Mr. Rajesh Tripathy Addl. Standing Counsel --------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 04.01.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Sudam Dehury faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.191/54 of 2016-15 for commission of offences punishable under section 376(2)(i) of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter referred to as ‘POCSO Act’) // 2 // on the accusation that on 06.05.2015 at about 2.00 p.m. at village Talakusumita under Keonjhar Sadar police station in the district of Keonjhar, he committed rape on the victim, who was a girl child aged about seven years. The learned trial Court vide impugned judgment and order dated 31.03.2018 found the appellant guilty under both the offences, however, in view of section 42 of the POCSO Act, sentenced the appellant to undergo R.I. for a period of ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further R.I. for one year for the offence under section 6 of the POCSO Act. 2. The prosecution case, in short, is that on 06.05.2015 at about 2.00 p.m., the appellant had come to the house of the victim and talked with the informant (P.W.3) and his wife (P.W.5), who are the parents of the victim. At that time, the appellant gave his mobile phone to the victim and asked her to charge it in his house. Accordingly, the victim left her house and went to the house of the appellant for charging the mobile phone of the appellant and thereafter, the appellant also came to his house. While the victim was returning from the house of the appellant, she was dragged into his house by the appellant by holding her hands and then she was lied down on the cot and undressed and thereafter, the appellant forcibly pressed his Page 2 of 20 // 3 // penis into the vagina of the victim. At that point of time, P.W.3 arrived at the scene of occurrence and he pulled the appellant, who was lying naked over the victim on the bed and raping her. P.W.3 gave the appellant two slaps and brought the victim back home. The victim narrated about the occurrence of rape on her by the appellant before her parents. The matter was brought to
Legal Reasoning
the notice of the village gentries by P.W.3 first but it could not be resolved due to absence of the appellant and his family members. Ultimately, on 16.05.2015, the F.I.R. was lodged by P.W.3 before the Inspector in-charge of Keonjhar Sadar police station and accordingly, Keonjhar Sadar P.S. Case No.116 dated 16.05.2015 was registered under sections 376/511 of the Indian Penal Code and sections 8/10 of the POCSO Act. P.W.8 Jinima Samal, the women Sub-Inspector of Keonjhar Sadar police station took up charge of investigation and during course of investigation, she examined the informant and other witnesses as well as the victim, issued medical requisition to the Medical Officer, C.H.C., Padmapur. The wearing apparels of the victim which were produced by her were seized as per the seizure list Ext.9. The Medical Officer collected the biological samples of the victim which were also seized. The Investigating Officer visited the spot and prepared the spot map (Ext.11). The statement of the victim was recorded under section 164 Cr.P.C. Page 3 of 20 // 4 // On 17.06.2015, the appellant was arrested and he was also sent for medical examination. The biological samples of the appellant were also collected by the Medical Officer. The wearing apparels of the appellants were seized. The collected biological materials of the appellants so also the victim and their wearing apparels were sent to S.F.S.L., Rasulgagh, Bhubaneswar for chemical analysis. The Investigating Officer received the ossification test report of the victim so also the medical examination report of the appellant. P.W.8 also seized the school admission register of the victim from the Headmaster of Talakusumita Primary School where the victim was prosecuting her studies under seizure list Ext.3 and handed over the same in zima of the Headmaster as per zimanama (Ext.4) and on completion of investigation, she submitted charge sheet under section 376(2)(i) of the Indian Penal Code and section 6 of the POCSO Act against the appellant. 3. After submission of charge sheet, the learned trial Court framed charges against the appellant and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Page 4 of 20 // 5 // 4. During course of trial, in order to prove its case, the prosecution has examined as many as nine witnesses. P.W.1 Dr. Nibedita Nayak, who was working as Medical Officer, D.H.H., Keonjhar, examined the victim on 16.05.2015 and proved her report marked as Ext.1. She also proved the ossification test report marked as Ext.2. P.W.2 Goura Chandra Dehury was the Headmaster in-charge of Talakusumita Primary School, who produced the school admission register before the Investigating Officer wherein the date of birth of the victim was reflected as 18.02.2008. He stated about the seizure of such register and later on the same was given in his zima. P.W.3 Panab Charan Nayak is the informant in the case and the father of the victim and he stated that on the date of occurrence, the appellant had come to their house and handed over his mobile phone to the victim and asked her to charge it in his house and accordingly, the victim went to the house of the appellant but, did not return even after lapse of about one hour for which he went to the house of the appellant and saw the victim was lying naked on the bed and the appellant committing rape on her. He further stated that the victim narrated the incident of commission of rape on her by the appellant in his Page 5 of 20 // 6 // house and he also stated that the victim was eight years of age at the time of incident. P.W.4 Tanu Chandra Pradhan is the scribe of the F.I.R. (Ext.6) and he stated that when P.W.3 and the victim (P.W.6) narrated the incident before him, he scribed it, read over and explained the contents to the informant. P.W.5 Rahasa Nayak is the mother of the victim. She stated that the victim narrated the incident of commission of rape on her by the appellant in his house and she also stated that the victim was eight years of age at the time of incident. P.W.6 is the victim. She stated about the commission of rape on her by the appellant. She further stated about her statement was recorded by the learned J.M.F.C., Keonjhar under section 164 Cr.P.C. P.W.7 Dr. Sobhan Kumar Padhi was the Medical Officer, C.H.C., Padmapur and he examined the appellant on police requisition and proved his report marked as Ext.8. P.W.8 Jinima Samal was the women S.I. of Police, Keonjhar Sadar police station and she is the Investigating Officer of the case. P.W.9 Jadaba Dehury was the Ward Member of village Kusumita. He stated that when P.W.3 disclosed about the Page 6 of 20 // 7 // incident, he convened a village meeting, but the appellant did not turn up for which no decision could be taken by the village gentries. The prosecution exhibited sixteen numbers of documents. Ext.1 is the medical examination report of the victim, Ext.2 is the ossification test report of the victim, Ext.3 is the seizure list of school admission register, Ext.4 is the zimanama, Ext.5 is the entry in Sl. No.268/18 dated 27.06.2014 of victim relating to her date of birth in the school admission register, Ext.6 is the F.I.R., Exts.7 and 7/1 are the signatures of the victim (P.W.6) on her 164 Cr.P.C. statement, Ext.8 is the medical examination report of the appellant, Ext.9 is the seizure list of wearing apparels of the victim, Ext.10 is the seizure list of biological materials of the victim, Ext.11 is the spot map, Ext.12 is the prayer made for recording 164 Cr.P.C. statement of the victim, Ext.13 is the seizure list of biological sample of the appellant, Ext.14 is the seizure list of wearing apparels of the appellant, Ext.15 is the prayer for sending exhibits and Ext.16 is the forwarding letter to S.F.S.L., Bhubaneswar. 5. The defence plea of the appellant is that he has been falsely entangled in the case as he had given Rs.50,000/- (rupees fifty thousand) to the informant (P.W.3) for depositing the money in IPCL company where the informant was working Page 7 of 20 // 8 // but subsequently, when he demanded money from the informant, a false case has been foisted against him through the victim. 6. The learned trial Court after analyzing the oral and documentary evidence on record came to hold that the school admission register indicates the date of birth of the victim to be 18.02.2008 and taking into account the ossification test report of the victim so also the evidence of the parents of the victim and the Headmaster of the Primary School where victim was prosecuting her studies, the trial Court came to the conclusion that the victim was less than twelve years at the time of occurrence. The learned trial Court discussed the evidence of the victim girl, who was minor at the time of occurrence and came to hold that she had not resiled from her previous statement made either before the Magistrate under section 164 Cr.P.C. or before the Investigating Officer under section 161 Cr.P.C. and nothing has been elicited from her cross-examination that the appellant had not pressed his private part on her private part. Learned trial Court then discussed the evidence of the parents of the victim, who are examined as P.W.3 and P.W.5 and came to hold that the learned defence counsel has failed to bring any contradictions in their evidence to disbelieve their statements. The learned trial Court then dealt with the contention raised regarding delay in Page 8 of 20 // 9 // lodging the first information report as the occurrence took place on 06.05.2015 and the F.I.R. was lodged on 16.05.2015 and held that the delay in lodging the F.I.R. was held as a meeting was convened in the village to settle the matter and the Ward Member being examined as P.W.9 has also stated in that respect and therefore, it was held that the informant has properly explained the reason of delay in lodging the F.I.R. The learned trial Court further held that the evidence of the victim- prosecutrix itself proves that she was ravished by the appellant and the father of the victim also arrived at the spot at the time of occurrence and the defence has failed to prove his defence plea through proper evidence. Accordingly, the learned trial Court found the appellant guilty of the offences under section 376(2)(i) of the Indian Penal Code so also section 6 of the POCSO Act. 7.
Legal Reasoning
Mr. Malaya Kumar Swain, learned counsel appearing for the appellant contended that the impugned judgment and order of conviction is not sustainable in the eye of law and apart from delay in lodging the F.I.R. which has not been satisfactorily explained, there are contradictions in the evidence of the witnesses and the medical evidence does not corroborate from the victim’s evidence about the commission of rape on her and there are no material that there was any penetration into vagina Page 9 of 20 // 10 // of the victim and the ingredients of the offence under section 6 of the POCSO Act are not attracted and therefore, the impugned judgment is liable to be set aside. Mr. Rajesh Tripathy, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and argued that not only in the F.I.R. but also in the evidence of the informant (P.W.3) and in the evidence of the Ward Member (P.W.9), it appears that a village meeting was convened after the occurrence and that was the reason for which delay was caused and the learned trial Court has rightly held that the informant had satisfactorily explained the delay in lodging the first information report. Learned counsel further submitted that the victim being examined as P.W.6 has not only supported the prosecution case, but also specifically stated that the appellant pressed his penis into her vagina and her evidence is consistent with her previous statement made before the police so also before the Magistrate, which was recorded under section 164 Cr.P.C. The defence plea of false implication has rightly been discarded by the learned trial Court. Reliance was placed on the decision of the Hon’ble Supreme Court in the case of Tarkeshwar Sahu -Vrs.- State of Bihar (now Jharkhand) reported in 2006 (8) Supreme Court Cases 560 and urged that slightest penetration is Page 10 of 20 // 11 // sufficient to hold that the offence under section 376(2)(i) of the Indian Penal Code as well as section 6 of the POCSO Act has been committed if the victim is below the age of sixteen years, which has been proved not only through the medical evidence by way of ossification test but also entry in the school admission register and therefore, there is no illegality or perversity in the impugned judgment for which the appeal should be dismissed. Delay in lodging F.I.R.: 8. Coming to the first contention regarding delay in lodging the F.I.R., there is no dispute that according to the prosecution case, the occurrence took place on 06.05.2015 and the F.I.R. was lodged on 16.05.2015 and in the F.I.R., it has been mentioned that there was an attempt made by the informant in the village level by bringing the matter to the notice of the village gentries in connection with the case. P.W.3 has specifically stated in his evidence that even though his wife (P.W.5) advised him to report the matter to the police, but he thought it proper to bring the matter to the notice of the village gentries at first and accordingly, he called the village gentries and informed the matter, but the matter could not be resolved because of the absence of the appellant and his family members and thus, he lodged the F.I.R. in the police station. When a question was put by the learned defence counsel in the cross- Page 11 of 20 // 12 // examination, P.W.3 specifically stated the names of the village gentries before whom he disclosed about the occurrence and he specifically stated that a meeting was held involving the village gentries near his house within seven days of the occurrence and one Baguli Pradhan called the mother of the appellant, but she refused to attend the meeting and an attempt was made to convene the meeting again, but it was not successful. P.W.5, the mother of the victim has also stated that she advised her husband (P.W.3) to report the matter to the police, but he said that it would be better to inform the village elders at first and to solve the matter and accordingly, a meeting was decided to be convened in the village, but it could not be held because of absence of the appellant and his family members despite due intimation to the mother of the appellant and his maternal uncle and subsequently, they reported the matter in the police station. P.W.9 is the Ward Member of village Kusumita and he also stated that the informant (P.W.3) disclosed before him about the occurrence for which he convened a meeting, but the appellant did not turn up for which no decision could be taken by the village gentries. Nothing has been brought out from the evidence of P.W.3, P.W.5 or P.W.9 by the defence to disbelieve this part of the evidence that there was an attempt to convene a village meeting over the issue of commission of rape on the victim and Page 12 of 20 // 13 // the matter was intimated to the village gentries, but the appellant and his family members did not cooperate for which it could not be decided at the village level and thereafter, the matter was reported in the police station. In the case of State -Vrs.- Gurmit reported in 1996 Criminal Law Journal 1728, it was held that delay in lodging an F.I.R. in sexual offence may be due to a variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police station and complain about the incident which concerns the reputation of the prosecutrix and honour of her family and such delay would not matter if properly explained. In view of the available materials on record and the explanation that has been offered by the prosecution through the evidence of P.W.3, P.W.5 and P.W.9 relating to the delay in lodging the F.I.R., I am not able to accept the contention raised by the learned counsel for the appellant that the prosecution has failed to explain the delay satisfactorily in lodging the F.I.R., rather I am of the humble view that the delay would not be fatal to the case of the prosecution since the case involves commission of sexual offence on a minor child and the delay was natural as it involved the prestige and reputation of the family. Page 13 of 20 // 14 // Age of the victim: 9. Coming to the age of the victim at the time of occurrence, the Medical Officer (P.W.1), who examined the victim on 16.05.2015 at D.H.H., Keonjhar stated that on the basis of ossification test conducted by her, the age of the victim was found to be seven to nine years and the ossification test report has been marked as Ext.2. Nothing has been asked to the doctor by the defence in the cross-examination to disbelieve this part of the evidence. The parents of the victim being examined as P.W.3 and P.W.5 have also stated the age of the victim was eight years at the time of occurrence. The Headmaster of the School where the victim was prosecuting her studies was examined as P.W.2 and he proved the school admission register where the date of birth of the victim has been reflected to be 18.02.2008. Since the occurrence took place on 06.05.2015, from this documentary evidence also it appears that the victim was aged about eight years at the time of occurrence. In my humble view, the learned trial Court after taking note the entry of the school admission register so also the evidence of the parents of the victim and the medical officer has rightly came to the conclusion that the victim was less than twelve years of age at the time of occurrence. Page 14 of 20 // 15 // Evidence of the victim and her parents on rape: 10. The victim being examined as P.W.6 was put some questions by the learned trial Court to see whether she was capable to understand the questions and give rational answers and the learned trial Court not only reflected the questions in the deposition sheet but also the answers given by the victim and he came to the conclusion that the victim is capable of understanding the questions put to her and giving rational answers and therefore, held that she is competent to testify as a witness in the case. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto in a coherent and comprehensible manner. The trial Judge had the advantage of watching the demeanour of P.W.6 and the Court found the child is able to answer the questions in a rational manner and there is no perversity in such finding. P.W.6 has stated that on the occurrence day, while she along with her friends and elder sisters and brothers were playing in their house, the appellant came to their house and talked with her parents and then he called her and asked her to take his mobile phone to charge it and she took the mobile and went to the house of the appellant and put it on charge and while she was returning, the appellant dragged her into his house by Page 15 of 20 // 16 // holding her hands and he made her lie and undressed her and then he himself got undressed and pressed his penis into her vagina. The victim further stated that after some time, her father (P.W.3) arrived there, pulled the appellant and gave her two slaps and brought her home and when she was asked about the occurrence by her mother (P.W.5), she narrated the entire incident before her. She further stated to have given her statement in the Court earlier which was obviously recorded under section 164 of Cr.P.C. In the cross-examination, the victim has stated that the appellant arrived in his house from her house half an hour after she had gone there and that the family members of the nearby house owners were present in their respective houses. She has denied the suggestion given by the learned defence counsel that the police had tutored her to speak against the appellant before the Magistrate and that her father had tutored her to speak against the appellant on the date of her deposition. Though the victim has been cross-examined at great length, but nothing has been elicited to create any doubt about her veracity. She withstood the cross-examination well and her evidence has not been shaken. The evidence of the victim is clear, cogent and trustworthy. The evidence of the victim (P.W.6) is getting corroboration from the evidence of her father (P.W.3), who has Page 16 of 20 // 17 // stated that on the occurrence day, when the victim took the mobile of the appellant and went to his house and did not return, he went to the house of the appellant in search of the victim and went inside the house and found that the victim was lying naked on the bed and the appellant was raping her. He further stated that he rushed towards the appellant, caught hold of him by collar of his shirt and gave him two slaps and then he brought back the victim to his house and the victim was crying at that time. He further stated that the victim narrated before him about the commission of rape on her by the appellant. The mother of the victim being examined as P.W.5 also stated that after the victim went to the house of the appellant to charge his mobile set, the appellant left their house and when the victim did not return for some time, P.W.3 went in search of her and then the victim returned home crying and disclosed before her as to how she was undressed by the appellant and how he forcibly pressed his penis into her vagina. Therefore, the evidence of the victim gets ample corroboration from the evidence of her parents and the disclosure made by the victim about the occurrence before her parents immediately after the occurrence is also admissible as res gestae under section 6 of the Evidence Act as it is a Page 17 of 20 // 18 // spontaneous statement connected with the fact in issue and there was no time interval for fabrication. Absence of medical evidence: 11. No doubt, the doctor (P.W.1) when examined the victim on 16.05.2015 did not notice any bodily injury suggestive of sexual intercourse and there was no sign of recent sexual intercourse, but it cannot be lost sight of the fact that the F.I.R. was lodged ten days after the occurrence whereafter the victim was sent for medical examination. In rape cases, medical examination of the victim has its own importance and it should be conducted timely and properly. In this case, immediate steps was taken for the medical examination after lodging of the F.I.R. on 16.05.2015, but for the delayed lodging of F.I.R., no sign or symptom could be detected regarding sexual intercourse. In the case of Tarkeshwar Sahu (supra), it has been held that the word “penetrate” means “find access into or through, pass through”. In order to constitute rape, what section 375 of the Indian Penal Code requires is medical evidence of penetration, and this may occur even if the hymen remains intact. In view of the explanation to section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for constituting offence under section 376 of the Indian Penal Code. Page 18 of 20 // 19 // 12. To sum up, in view of the foregoing discussions and the evidence on record particularly that of the victim (P.W.6), which has remained unshaken and is corroborated by the evidence of her parents, the age of the victim at the time of occurrence, I am of the humble view that the prosecution has successfully established that the appellant committed rape on the victim on 06.05.2015 and therefore, the learned trial Court is quite justified in convicting the appellant under section 376(2)(i) of the of the Indian Penal Code so also under section 6 of the POCSO Act and imposing the minimum sentence prescribed for the offence under section 6 of the POCSO Act on the appellant. There is no infirmity or illegality in the impugned judgment and accordingly, the JCRLA being devoid of merit, stands dismissed. 13. From the impugned judgment, it appears that the learned trial Court has directed the matter to be placed before the D.L.S.A., Keonjhar for deciding the quantum of compensation to be paid to the victim and disbursement. If no compensation has been paid to the victim in the meantime, keeping in view the Odisha Victim Compensation (Amendment) Scheme, 2018 as per the notification dated 20.10.2018 of Government of Odisha, Home Department, the District Legal Services Authority, Keonjhar shall examine the case of the victim after conducting Page 19 of 20 // 20 // necessary enquiry in accordance with law for grant of compensation amount to the victim. Trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 4th January 2023/RKMishra Page 20 of 20