Criminal Appeal No. 56/61 of 2006 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.1122 OF 2014 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Hrudananda Tandi ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioner : Mr. A.K. Biswal, Advocate (Amicus Curiae) For the Opp. Party : Mr. B. K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 02.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 12.09.2014 passed by the learned Additional Sessions Judge, Bhawanipatna in Criminal Appeal No.56/61 of 2006-2013, whereby the order of conviction and sentence dated 09.10.2006 passed by the learned Chief Judicial Magistrate-cum- Assistant Sessions Judge, Kalahandi, Bhawanipatna in S.C. Case No.16/5
Legal Reasoning
of 2005 has been confirmed. 2. The prosecution case in brief is that on 13.09.2004, the victim was at her house as her niece Chaubani Bag was ailing, on that day at about 9.00 A.M., while the father of the prosecutrix was arranging tiles (khappar) at a nearby house, the accused-petitioner entered into their house and pressed her mouth by threatening to kill her on the point of a knife. Thereafter, he laid her on the ground and forcibly committed rape on her. On hearing hallah, when her father reached, the accused dealt a kick to her father and fled away from the spot. Therefore, the victim lodged a written report before the Kegaon P.S. against the petitioner, based on which an F.I.R. was registered as Kegaon P.S. Case No.50 of 2004. 3. During investigation, the Investigating Officer visited the spot, examined the witnesses, sent the prosecutrix for medical examination, seized the wearing apparels of the accused as well as the prosecutrix and Page 2 of 12 arrested the petitioner. After completion of investigation, the police submitted charge-sheet against the petitioner for the offences under Sections 376/506 of I.P.C. Since this case is triable by the Court of Sessions, the learned S.D.J.M., Bhawanipatna vide order dated 02.02.2005 committed the accused along with case record to the Court of the Sessions and subsequently, it was transferred to the learned trial Court, where the petitioner was put to trial. 4.
Legal Reasoning
Heard Mr. A.K. Biswal, learned Amicus Curiae for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 5. The petitioner was charged for the offence punishable under Sections 376/506 of I.P.C. and was subjected to trial. 6. To bring home the charges, the prosecution examined as many as 16 witnesses in all to support its case and also relied upon certain documentary evidence including the F.I.R. and medical evidence. Out of them, P.W.1 was the victim-informant whereas P.W.2 is the father of the victim. P.W.3 is the minor niece of the victim whereas P.W.4 is the father of the P.W.3. P.Ws.5 and 7 were examined by the prosecution to establish Page 3 of 12 the fact that there was a panch meeting in the village. P.W.6, one of the villagers was examined by the prosecution to establish the fact that the father of the victim was quarreling with the accused on the date of incident. P.Ws.9 and 10 were the independent witnesses who seized the garments of the accused and the victim, whereas P.Ws.8, 12, 13 and 15 were the police witnesses to the seizure of pubic hair, semen and vaginal swab of the accused. P.W.11 was the doctor who examined the victim and P.W.14 was the doctor who examined the accused. P.W.16 was the Investigating Officer in this case. 7. The learned trial Court based its judgment of conviction on the strength of the testimony of P.Ws.1, 2, 3 and 4. The trial Court has accepted the testimony of these witnesses as the same draws corroboration from the evidence of other witnesses. 8. Mr. Biswal, learned Amicus Curiae appearing for the petitioner has attacked the trial Court’s judgment on the ground that the evidence of the prosecutrix is not trustworthy in view of the evidence of the doctor who has categorically stated that there is no physical injury on the body of the prosecutrix. As such, the version of the prosecutrix creates a serious Page 4 of 12 doubt. The trial Court dealt with the same objection raised by the defence counsel and returned the following findings:- <15. The doctor, P.W.14 has deposed that on 20.9.2004 on police requisition, he examined the accused and found that the accused was a married person and he was habituated to sexual intercourse and the accused was found capable of having sexual intercourse as per his report under Ext.7. In his cross-examination, P.W.14 has deposed that there was no sign of recent sexual intercourse. But this is not a circumstance to disbelieve the case of the prosecution, because the accused has been examined after seven days of the date of occurrence. So also P.W.11, the doctor who has examined the victim, has deposed that on 20.9.2004 on police requisition, she examined the victim, but no physical clue was the noticed on the clothings as the victim had changed her cloth and had washed the same. P.W.11 has furthermore, deposed that no injury was noticed on the genital area of the victim as per her injury report under Ext.6. In her cross-examination P.W.11 has deposed that the fact of admission of two fingers in the vaginal canal was suggestive of the fact that the victim was subjected to sexual intercourse. Relying upon the aforesaid evidence of P.Ws.11 & 14, it is wrangled for the accused that when the victim was subjected to sexual intercourse and there was no sign of injury on her genital part or on the body of the victim, there is nothing material on record to prove the factum of rape and hence the accused is entitled to an order of acquittal. In the instant case, the occurrence has taken place on 13.9.2004 and the matter has been reported to police on 19.9.2004 and the victim and the accused were examined on 20.9.2004 i.e. after seven days after the date of occurrence. Accordingly, relying upon the observations of our Hon'ble High Court in the case of Shyam Sundar Behera Vrs. State of Orissa reported in 2004 (I) OLR-458, I conclude that when the victim and the accused were examined seven days after the occurrence, absence of any injury or spermatozoa on the body of the victim is not a Page 5 of 12 ground to whittle down the case of the prosecution. It is also ruled by our Hon'ble High Court in the case of Ananda Palei Vrs. State of Orissa, reported in (2006) 34 OCR-680 that women in India have a tendency to conceal such offence if it involves their prestige as well as the prestige of their family and also stigma which they will carry throughout their life in case of disclosure and absence of injury on the part of the victim by itself does not show that she was a consenting party. It is also ruled by the Hon'ble High Court of Rajastan in the case of Ramlal Vrs. State of Rajastan reported 2006 (3) Crimes; 253 that though medical report of prosecutrix revealed that she was a un-married girl, but habituated to sexual intercourse, that would not mean that she was a vulnerable object or prey, for being sexually assaulted by any one or every one. Accordingly, even if the medical reports under Ext.6 & 7 do not support the evidence of the victim, those documents also do not debilitate the case of prosecution in any manner. 16. Admittedly P.W.2 is the father of the victim, P.W.3 is her niece and P.W.4 is her cousin brother. The victim has admitted in her cross-examination that P.W.5 is her brother-in-law and that P.W.9 is her elder brother. As stated earlier, P.W.3 who is relied upon as an ocular witness has not stated anything regarding the allegation of rape. Relying upon such factual matrix, it is exhorted by the learned defence counsel that when the testimony of the victim is bereft of any corroboration and her testimony is laden with inconsistency, the accused is entitled for an order of acquittal. In view of my earlier discussions, I have concluded that inconsistency here and there is bound to occur in the case of truthful witnesses and that the inconsistency brought out are not material, so as to discard the prosecution case in its entirety. It is ruled by the Hon'ble Apex Court in the case of State of U.P. Vrs. Anil Singh reported in A.I.R 1988 (SC) 1998 that it is not proper to reject the cases for want of corroboration by independent witnesses, if the case made out is otherwise true and acceptable. It is also held in this decision that it is necessary to remember that Judge does not preside over a Page 6 of 12 criminal trial, merely to see that no innocent man is punished and that a Judge also presides to see that guilty man does not escape. It is also depicted by the Apex Court in the case of Om Prakash Vrs. State of Utter Pradesh reported 2006(2) Crimes, 232 (SC) that the victim of sexual assault is not to be treated as accomplish and her evidence does not require corroboration from any other evidence including the evidence of the doctor and that the court should examine broader probabilities of cases and not get swayed by minor contradictions or insignificant discrepancies and that the conviction could be based on the testimony of victim, unless the same was shown to be infirm and not trustworthy and that if the prosecutrix did not have a strong motive to falsely involved the person charged, the court should ordinarily have no hesitation in accepting her evidence. Accordingly, such contention on behalf of the accused is not acceptable.= The trial Court having found the petitioner guilty for the offence under Sections 376/506 of I.P.C. and sentenced the petitioner to undergo R.I. for seven years and pay a fine of Rs.20,000/-, in default to undergo further R.I. for eighteen months for the first count, and R.I. for two years and to pay a fine of Rs.5000/-, in default to undergo R.I. for six months for the second count. 9. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Kalahandi, Bhawanipatna in S.C. Case No.16/5 of 2005, the petitioner filed an appeal before the learned Additional Sessions Page 7 of 12 Judge, Bhawanipatna vide Criminal Appeal No.56/61 of 2006-2013. The Appellate Court confirmed the conviction and sentence recorded against the petitioner for commission of offence under Sections 376/506 of I.P.C. 10. The Appellate Court appreciated the evidence in the right perspective and by relying upon the testimony of P.Ws.1, 2, 3 and 4 concurred with the findings recorded by the trial Court. The revision petitioner through Amicus Curiae has highlighted the contradictions in the testimony of witnesses to create a doubt in the prosecution story. He has relied upon the medical evidence as Ext.6 to create a serious doubt regarding the prosecution version of commission of offence of rape on the prosecutrix. The Ext.6 which was placed on record through P.W.11 reads as under:- <(1) There is no bodily injury on part and person of her body. (2) There is no physical clue on her clothing for forcible sexual intercourse. The victim told that she had changed her clothing. (3) No injury found on her genitalia and no recent bleeding injury of furchete and posterior commission Vaginal swab is collected and send for presence of spermatozoa for pathological examination. (4) Vaginal swab collected. (5) & (6) patient is requested to send to D.H.J. for determination of age and blood group. (7) preserved. Page 8 of 12 (8) No matching and staining of hair. (9) Vagina easily admits 2 finger.= 11. Relying upon the aforementioned medical evidence, Mr. Biswal, submits that the prosecutrix version is clearly doubtful. It may be a case of consensual sex. From the medical report, it is emanating that there was no resistance from the prosecutrix. This aspect of the matter was also dealt with by the Appellate Court in its judgment at paragraph-16, which reads as under:- <16. It is also contended by the learned counsel for the appellant that the alleged rape is not established in the medical examination reports in respect of the victim and the appellant. P.Ws.11 and 14 have stated having medically examined the victim and the appellant and found their observations as per medical examination reports vide Ext.6 and 7 respectively. As reveals from the evidence of P.Ws.11 and 14 that there was absence of injury on the person of the victim as well as the appellant. It also reveals that there was no physical clue of sexual intercourse noticed in their clothing. The evidence of P.W.11 also reveals that the vagina of the victim was two fingers. His cross-examination easily admitting reveals easy admission of two fingers in vaginal canal which is suggestive of the facts the victim was subjected to regular sexual intercourse. Thus, it is seen that Ext.6 does not support the prosecution case. However, the learned trial Court relied on the ruling of the Hon’ble High Court of Rajasthan in the case of Ramlal Vrs, State of Rajasthan reported 2006 (3) Crimes; 253, wherein it has been held that though medical report of prosecutrix revealed that she was a un-married girl, but habituated to sexual intercourse, that would not mean that she was a vulnerable object or prey, for being sexually assaulted by Page 9 of 12 anyone or everyone. So bearing in mind the settled position of law, I hold that no doubt can be raised in the prosecution case basing on the aforesaid observation in the medical examination report in respect of the prosecutrix as per Ext.6. On the other hand, the evidence of P.W.14 reveals that the appellant was capable of having sexual intercourse. So the prosecution case is not affected in any manner by the aforesaid medical evidence of P.W.11 and 14.= 12. I find no reason to disagree with the concurrent findings of both the Courts below. Right appreciation of the entire evidence on record resulted in finding the petitioner guilty for the offences under Sections 376/506 of I.P.C. The Courts below have aptly appreciated the evidence on record. Therefore, there is no scope for this Court to interfere with the concurrent findings of both the Courts below while exercising revisional jurisdiction. Hence, the Revision Petition is dismissed and the conviction recorded against the petitioner for having committed the offence punishable under Sections 376/506 of I.P.C. is upheld. 13. At this stage, Mr. Biswal, learned Amicus Curiae submitted that this Court should consider leniently the quantum of sentence in view of the fact that the incident had taken place in the year 2004 and at that point in time, the petitioner was 28 years old. Much has changed within these Page 10 of 12 two decades. Therefore, sending the petitioner to further incarceration would be harsh. He is not a habitual offender and never found wanting for misuse of the liberty of bail granted by the Courts in this case. He further submits that the petitioner has already undergone about two year’s custody. Therefore, the sentence awarded by the Courts below may be reduced to that of sentence he has already undergone. 14. Regard being had to the fact that the incident had taken place in the year 2004 and the petitioner was very young at that point in time and two decades had already been lapsed in between, the petitioner deserves a lenient view in so far as sentence is concerned. Therefore, he has submitted that under the provision of Section 376 of I.P.C. (before amendment) by assigning adequate and special reason, this Court may reduce the sentence for a term less than seven years. For ready reference, the provision reads as under:- <376. Punishment for rape- (i) Whoever, except in the case provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either Page 11 of 12 description for a term which may extend to two years or with fine or with both. Provided that the Court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than seven years.= 15. Taking into consideration the period of custody and the fact that two decades have already passed in between, I feel it appropriate to modify the sentence to that of sentence the petitioner has already undergone in custody. However, in so far as the fine amount is concerned, I decline to interfere with. Accordingly, the petitioner is liable to pay fine of Rs.20,000/-, in default to pay the same, he shall undergo further R.I. for six months. The fine amount to be deposited by the petitioner shall be disbursed to the victim in accordance with the provision of Section 357 Cr.P.C. as compensation. 16. The CRLREV is disposed of in the aforementioned terms. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2024 10:31:54 Page 12 of 12