The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.319 OF 1993 (From the judgment and order dated 24th September, 1993 passed by learned 2nd Addl. Sessions Judge, Cuttack in S.T. No.6 of 1992) Rama Chandra Nayak … Appellant -versus- State of Odisha … Respondent Advocates appeared in the case through hybrid mode: For Appellants : Mr.D.K.Mohapatra Advocate -versus- For Respondent: Mr.S.N.Das, Addl. Standing Counsel --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 22.03.2023. Sashikanta Mishra,J. The Appellant challenges the judgment of conviction and sentence dated 24th September, 1993 CRA No.319 of 1993 Page 1 of 15 passed by learned 2nd Addl. Sessions Judge, Cuttack in S.T. Case No.6/1992 whereby, being convicted for the offence under Section 376 of I.P.C. he was sentenced to undergo R.I. for seven years. 2. The prosecution case, briefly stated, is as follows; On 12th July, 1991, the informant (name withheld) lodged F.I.R. before Tangi Police Station alleging therein that his minor daughter ‘X’ (name withheld) aged about 9 years had gone to bring grass from the nearby jute field and while she was returning, the present accused forcibly lifted her and took her inside the jute field and committed sexual intercourse on her after putting a small piece of cloth inside her mouth. This resulted in injury on the private part of the victim. On her return the victim described the incident by crying, hearing which the informant went to the house of the accused but did not find him. The father of the accused requested for amicable settlement but the same did not materialize for which the F.I.R. was lodged. On such basis, Tangi P.S. Case No.46/1991 CRA No.319 of 1993 Page 2 of 15 was registered under Section 376 of I.P.C. followed by investigation. Upon completion of investigation, charge sheet was submitted also under Section 376 of I.P.C. 3. The defence took the plea of denial. 4. In order to prove its case, the prosecution examined 9 witnesses out of whom, P.W.1 is the victim “X”, P.W.2 is her mother, P.W.3 is her father and informant, P.Ws.4 to 7 are co-villagers, P.W.8 is the Doctor, who examined the victim and P.W.9 is the I.O. Besides, the prosecution proved 7 documents and three material objects. Defence did not adduce any evidence whatsoever. 5. After appreciating the evidence on record, particularly the evidence of the victim (P.W.1) as corroborated by the other witnesses (P.Ws.2 and 3) and the evidence relating to injuries sustained by her, the
Legal Reasoning
trial Court held the offence under Section 376 of I.P.C. as clearly established. On such finding the accused CRA No.319 of 1993 Page 3 of 15 was convicted and sentenced as already stated hereinbefore. 6.
Legal Reasoning
Heard Mr. D.K.Mohapatra, learned counsel for the Appellant and Mr. S.N.Das, learned Addl. Standing Counsel for the State. 7. Assailing the impugned judgment, Mr. Mohapatra has contended that the entire case has been falsely foisted against the accused, which would be evident from the fact that the F.I.R. was lodged belatedly. He has further pointed out several contradictions in the version of the victim as have been proved during cross-examination of the I.O. Mr. Mohapatra has also contended that the circumstances under which the victim being such a young girl was asked to cut and obtain grass has not been highlighted at all. The final ground urged by Mr. Mohapatra is delay in medical examination of the victim and the accused. CRA No.319 of 1993 Page 4 of 15 8. Mr. S.N.Das, learned Addl. Standing Counsel, on the other hand, submits that the victim’s statement is clear, consistent and trustworthy. It is otherwise proved from the evidence of the Doctor (P.W.8). Therefore, the so-called contradictions and discrepancies pointed out by the defence cannot nullify the positive evidence regarding commission of the offence by the accused. 9. In order to independently assess the evidence, this Court has gone through the evidence of the victim “X”, who was examined as P.W.1. At the time of her testimony she was aged about 10-11 years. The Court below considered her competent to testify after duly testing her. 10. A reading of the deposition of the victim shows that she vividly described the occurrence in all material details. She was cross-examined extensively but nothing material was elicited from her to disbelieve her sole testimony. Some discrepancies have been pointed out by the learned counsel for the Appellant CRA No.319 of 1993 Page 5 of 15 but then, considering the age of the victim and the fact that she was deposing after about two years of the occurrence, it is only natural that such discrepancies would occur. The question is, whether the same are of such nature as to demolish the prosecution case entirely. Turning to the other evidence, this Court finds that the mother of the deceased fully corroborated the F.I.R. version to the effect that on the date of occurrence in between 4 to 4.30 P.M. while she was in house, the victim came crying and told her about the occurrence giving all details. P.W.2 also deposed that she saw the private part of the victim and marked injury and bleeding. She further stated that when her husband reached there, she narrated the incident before him where after he along with his father went to the house of accused to ask him about the incident. The father of the accused took time to settle the matter on the next morning, but no settlement could materialize, for which F.I.R. was lodged. She categorically stated that as the accused had absconded, the compromise could not be effected. The CRA No.319 of 1993 Page 6 of 15 informant was examined as P.W.3. He fully corroborated the version of P.W.2. Both P.Ws.2 and 3 were cross-examined extensively but nothing came out from them so as to cast a doubt on their testimony. The Doctor, who had examined the victim as well as the accused after the incident, was examined as P.W.8. He admitted to have examined the victim and found two injuries on her body and three injuries on her private parts. In particular, he deposed to have found the following injuries; (i) Tear 1 cm x 1/4cm situated on the angle of the mouth at its left side. (ii) Tear 2 cm x 1 cm situated on the upper lip close to the right side angle of the mouth. (iii) Nail cut abrasion ½ cm x ¼ cm situated on the left side of the labia major. Its long axis is parallel to Labial foldout line. (iv) A vertical tear ¾ cm x ¼ cm on each side of labia minor on either side associated with bruising of the labial folds-2 in number. (v) Tear ½ cm x 1/8 cm on the outlet of the vagina at the posterior fornix the attached extending towards CRA No.319 of 1993 Page 7 of 15 margin of the hymen which was deep seated and immature type. In para-7 he further deposed the following; (i) (ii) The victim girl had not attained her menarche (maturity). There was no signs of previous sexual intercourse with the victim girl, prior to this occurrence. (iii) There was evidence of forced sexual act on the victim girl about 48 hours prior to the time of physical examination (14.7.91). (iv) Seminal stains were detected in the person of the victim girl. Since the wearing time of examination was not the wearing apparels at the time of incident, it was not examined. frock at the (v) Injuries noted as above are consistent with violence as has been described earlier. (vi) The injuries on the face of the victim girl as noted above was consistent with forceful silencing the girl by the assailant which is suggestive of the resistance offered by the girl at the time of sexual assault. (vii) The victim girl was aged more than 8 and half years and less than 10 years at the time of examination. CRA No.319 of 1993 Page 8 of 15 If the testimony of the Doctor is compared with that of the victim’s version, it is evident that both are fully consistent and complement each other. Further, P.W.8 also examined the accused and found him capable of committing sexual intercourse and in particular, he stated that the possibility of the accused having committed rape on the victim girl could not be ruled out. 11. It is the settled position of law that in cases of rape particularly, involving minor children the Courts must show utmost sensitivity and not be swayed away by minor contradictions and discrepancies that may be found here and there in the evidence of prosecution. Reference in this regard may be had to the decision of the Apex Court in the case of State of Punjab vs. Gurmit Singh; (1996) 2 SCC 384; “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad CRA No.319 of 1993 Page 9 of 15 reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get or swayed insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with sexual molestations. If evidence of contradictions by minor involving cases case. look for CRA No.319 of 1993 Page 10 of 15 12. It is also well settled that in a case of rape the version of the victim by itself is adequate to bring home the guilt if it is implicitly reliable and has a ring of truth in it. A three Judge Bench of the Apex Court took the above view in the case of Mukesh vs. State (NCT of Delhi); reported in (2017) 2 SCC (Cri) 673. 13. In the instant case, as has been discussed herein before, the victim’s version herself is clear, inconsistent and truthful. Even otherwise, the same has been adequately corroborated by her parents and by the Doctor, who had examined her. The defence, despite taking the plea of false implication has not been able to satisfy the Court as to why the victim being such a young girl of tender age at the relevant time would falsely implicate the accused particularly, when it has been elicited from her during cross-examination that she did not know the accused prior to the occurrence. This Court therefore, finds that the evidence on record clearly proves the offence under Section 376 of I.P.C. CRA No.319 of 1993 Page 11 of 15 14. Coming to the contentions raised by the accused- appellant, this Court finds that the F.I.R. itself contains the explanation for belated lodging thereof to the effect that the matter was first attempted to be resolved amicably but as the same failed, the F.I.R. was lodged. Considering the economic and socio- cultural as also the rival background of the parties, it is quite plausible that an offence like the one in the instant case involving a minor girl would be attempted to be hushed up at the first instance. Therefore, this Court is not impressed with the argument that there was an inordinate delay in lodging of the F.I.R. or that such delay was to such extent as to treat the prosecution case with doubt. 15. The contradictions referred to by the Appellant are not actually contradictions inasmuch as it was suggested to the I.O. that the victim had not stated specifically that the accused penetrated his penis into her vagina and that the accused committed sexual act (TALA UPARA KALA). The I.O. stated that the victim CRA No.319 of 1993 Page 12 of 15 though had not specifically said so nevertheless had stated that TAPARE SE TA NALIATA MO GULARE MO MAJHI ANGULI PAGARA ADHA PARJYANTA PURAI MOTE GEHILA which can be loosely translated as – Then he inserted his penis inside my vagina as deep as half of my middle finger and committed sexual act. Thus, the contradiction relating to use of the exact words by the victim, who was deposing two years after the occurrence, is not such as would nullify the prosecution case altogether. 16. As to the next ground urged, this Court finds that when there is clear, ocular and medical evidence suggesting commission of the offence by the accused, non-mentioning of the circumstances under which the victim had gone to cut grass is immaterial. 17. As regards the so called delay in medical examination of the victim and the accused, it is seen that the occurrence took place on 12.7.1991 whereas the victim was examined on 14th July, 1991. Despite such delay, the Doctor found enough evidence of CRA No.319 of 1993 Page 13 of 15 sexual assault on the victim by specifically stating that “there was evidence of forced sexual act on the victim girl about 48 hours prior to the time of physical examination. Moreover, it is not the case of the accused that somebody else had committed the offence in between. Therefore, this argument must fail. 18. Thus, from a conspectus of the analysis and discussion made herein before and on perusal of the impugned judgment, this Court finds that the Court below has rightly appreciated the evidence on record to record the order of conviction against the accused. This Court finds no reason to differ from such findings. 19. A feeble argument was made by Mr.Mohapatra that at least the sentence imposed should be reduced. This Court is not willing to accept such contention because considering the young age of the victim, which is 8 years at the relevant time, the act committed by the accused can only be described as barbaric and a product of extreme perversity of mind. Undoubtedly, CRA No.319 of 1993 Page 14 of 15 the act must have been traumatic for the victim and left an indelible scar on her mind for the rest of her life. 20. In the considered view of this Court therefore, the sentence also does not call for any interference whatsoever as this Court finds that the trial Court has rightly sentenced the accused to 7 years R.I. 21. In the result, the appeal fails and is therefore, dismissed. The accused-Appellant being on bail his bail bonds be cancelled and necessary warrant be issued to take him to custody forthwith to serve the remaining part of the sentence. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera CRA No.319 of 1993 Page 15 of 15 CRA No.319 of 1993 Page 16 of 15 CRA No.319 of 1993 Page 17 of 15 CRA No.319 of 1993 Page 18 of 15