The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.144 of 2017 (An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 against the order dated 12.09.2016 passed by Shri P.K.Jena, Sessions Judge-cum-Special Judge, Mayurbhanj, Baripada in G.R. Case No.428 of 2013 arising out of Kaptipada P.S. Case No.131 dated 06.11.2013) Chintamani Biswal @ Bangara …. Appellant State of Orissa …. Respondent -versus- For Appellant : Mr. D.R. Mishra, Advocate For Respondent : Mr. B.P. Nayak, AGA Mr. P.K. Muduli,Adv(Informant) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:18.11.2024(ORAL) G. Satapathy, J. 1. This appeal U/S. 374 of the Code of Criminal Procedure, 1973(In short the “Code”) by the Appellant-convict is directed against the impugned judgment dated 12.09.2016 passed by the learned Sessions Judge-cum-Special Judge, Mayurbhanj, CRLA No.144 of 2017 Page 1 of 10
Legal Reasoning
Baripada in G.R. Case No. 428 of 2013 arising out of T.C. No. 159 of 2013. By the aforesaid judgment, the Appellant was convicted for commission of offences punishable U/Ss. 376(2)(i)/506 of IPC and Sec. 6 of POCSO Act and was sentenced to undergo RI for a period of 14 years and to pay a fine of Rs. 30,000/- in default whereof, to undergo further RI for a period of one year, each for the offence U/S. 376(2)(i) of the IPC and Sec. 6 of POCSO Act and to undergo RI for two years with payment of fine of Rs. 5,000/- in default whereof, to undergo RI for three months for offence U/S. 506 of IPC. 2. The prosecution case in brief is that on 06.11.2013 at about 3:30PM near Badasimulia Pond, the convict called the victim and forcibly lifted her to nearby bush and committed rape and aggravated penetrative sexual assault upon her, who was aged about 9 years then. At the time of commission of offence, the cousin of the victim who was present nearby the place of occurrence, rushed to the house CRLA No.144 of 2017 Page 2 of 10 of victim and informed her mother who subsequently on the same day presented an FIR to the OIC Kaptipada PS-cum-PW-17 Manoranjan Samal who registered the same and took up the investigation of the case which ended in submission of charge-sheet against the convict. On receipt of the charge-sheet, cognizance for the offences was taken in the case and the trial ensued thereon before the Court of Sessions which proceeded with the trial of the case by framing charge against the convict for commission of offences punishable U/Ss. 376(2)(i)/506 of the IPC and Sec. 6 of POCSO Act. 3. In support of the charge, the prosecution examined altogether seventeen witnesses vide PWs.1 to 17 and exhibited fourteen documents under Ext.1 to Ext.14 as against the oral evidence of three witnesses without any documentary evidence by the defence. The plea of the convict-Appellant was false implication due to enmity on account of quarrel with Karna Singh for breaking the leg of the goat. CRLA No.144 of 2017 Page 3 of 10 4. After appreciating the evidence on record upon hearing the parties, the learned Sessions Judge by the impugned judgment convicted the Appellant and sentenced him to the punishment indicated supra. 5.
Legal Reasoning
Mr. Dipak Ranjan Mishra, learned counsel for the Appellant while not challenging the conviction of the appellant seriously submits to take a lenient view with regard to sentence of the appellant by taking into account the detention period of the convict- appellant for 11 years 11 days as on today. He further submits that not only the appellant is in custody for such a long period, but also the convict has got dependant and ailing parents in his home and further the appellant is not a married person and thereby, at least the sentence of the appellant may kindly be reduced to the period already undergone. Mr. Mishra, however, submits that the FIR being lodged by the mother of the victim who is a hearsay witness and she having not able to narrate the incident properly, the incident could not be believed CRLA No.144 of 2017 Page 4 of 10 to have been proved and the gap in prosecution case is further widened by the chemical examination report which does not support the commission of rape of the victim. Mr. Mishra, accordingly, prays to allow the appeal or in alternatively reduce the sentence of the convict to the period already undergone. 6. On the other hand, Mr. B.P. Nayak, learned AGA, however, strongly opposes the prayer for allowing the appeal, but he, however, does not seriously challenges the alternative submission of the appellant for reducing the sentence to the period already undergone on the ground that the appellant has already undergone sentence of a period of 11 years. 7. On the contrary, Mr. Pravat Kumar Muduli, learned counsel for the Victim, however, forcefully submits that the appellant does not deserve any leniency because the age of the victim, at the relevant time of incident was 9 years and the evidence justifies the conviction of the appellant and the gravity of the offence itself suggests that the CRLA No.144 of 2017 Page 5 of 10 appellant has not been sentenced to excessively high so as to reduce it to the period already undergone. Mr. Muduli, accordingly, prays to dismiss the appeal. 8. After having bestowed an anxious and careful consideration to the rival submissions, this Court, of course, proceeds to re-examine the evidence since the convict has been sentenced to imprisonment for 14 years for commission of offences of sexual assault on a minor who has been examined in this case. The evidence of the victim suggests that she was aged about 9 years on the date of her deposition. Further, the victim in her evidence has vividly described the horrendous incident happened to her, but the defence could not make any inroad/demolish the evidence of the victim, even no suggestion was given to the victim that she was not aged about 9 years. Further, there is hardly any scope to dispute the evidence of the victim who being a small child had reiterated the facts in the trial Court. Further, the chemical examination report neither proves nor disproof an incident of sexual CRLA No.144 of 2017 Page 6 of 10 assault on a minor child, especially when the victim has specifically stated the act done by the convict- appellant which has not been demolished in the cross-examination. 9. Further, the mother of the victim has well corroborated the evidence of the victim because not only the victim has stated against the appellant for ravishing her, but also the mother of the victim has reiterated what has been informed to her by the victim since the mother of the victim had come to know about the incident from the victim and thereafter lodged an FIR which fact goes remain un- demolished. 10. In the aforesaid backdrop, especially when the evidence of the victim and her mother had remain un-assailed and taking into account the other evidence on record along with the aforesaid evidence of the victim and her mother, this Court is not inclined to disturb the finding as recorded by the learned trial Court in convicting the appellant for offence U/Ss. 376(2)(i) of IPC/6 of POCSO Act, but in CRLA No.144 of 2017 Page 7 of 10 view of the fact that the appellant has already remained in custody for more than 11 years, the finding of the learned trial Court for offence U/S. 506 of IPC becomes redundant inasmuch as the punishment as awarded to the convict thereon is RI for two years which is already over. 11. In coming back to the sentencing part, it appears that the learned trial Court has imposed a substantive sentence of four years more than the minimum substantive sentence as provided for the offence since the minimum substantive sentence each for the offence U/S. 376(2)(i) IPC & 6 of POCSO Act is RI for ten years, but admittedly the convict- appellant was sentenced in the year 2016 and the crime was committed in the year 2013 and at that time, the maximum sentence provided for the offence U/S. 376(2)(i) and Sec. 6 of POCSO Act was imprisonment for life which is the same right now, but after amendment the minimum punishment for offence U/S. 6 of POCSO Act is RI for not less than twenty years. The learned trial Court while awarding CRLA No.144 of 2017 Page 8 of 10 the sentence to the convict had taken note of the gravity of the offence by observing that not only the offence of rape violates the privacy and personal integrity of the victim, but inevitably causes serious psychological as well as physical harm in the process. However, the appellant-convict is in custody since the date of his arrest i.e. on 07.11.2013. It is of course true that “Mercy to guilty is cruelty to innocent” which has been said once by Adam Smith, an eminent Scottish Economist and Philosopher in his book “Theory of Moral Sentiments”, but after all the convict in this case is a human being living in tribal area in which area the conducts of such person are normally without any influence, however, the convict had committed the crime for not being able to control his lust. Further, the convict is a bachelor and he was just in his twenties at the time of occurrence, but in the meanwhile he had already remained in custody for near about eleven years and thereby, must have crossed age of thirty years by now. This Court by taking into consideration all these relevant factors CRLA No.144 of 2017 Page 9 of 10 into account reduces the sentence of the appellant to RI for 12 years. 12. In the result, the appeal sans merit stands dismissed on contest, but the sentence is modified to the extent indicated above. The convict be released from the custody after he serves out his sentence of RI for twelve years. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 18th day of November, 2024/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 22-Nov-2024 14:31:00 CRLA No.144 of 2017 Page 10 of 10