The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.1087 of 2014 (In the matter of an application under Sections 401 read with Section- 397 of the Criminal Procedure Code, 1973) Jyoti Dongri ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioner : Mr. Basudev Mishra, Advocate For the Opp. Party : Mr. Jyoti Prakash Patra, Addl. Standing Counsel (Vigilance) CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 02.07.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 read with Section 397 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 25.11.2013 passed by the learned Additional Sessions Judge, Nabarangpur in Criminal Appeal No.19 of 2013, whereby the judgment of conviction and order of sentence dated 22.01.2009 passed by the learned C.J.M.-cum-Asst. Sessions Judge, Nabarangpur in C.T. No.4 of 2007 convicting the petitioner for the offence under Section 376 IPC has been confirmed. 2. The prosecution alleged that on 13.09.2006 when the prosecutrix, who was a 16 years old girl then, was going to her maternal grandfather’s house by bus and she got down from the bus near a tamarind tree. While she was proceeding to her maternal grandfather’s house, the petitioner came in a cycle and offered her lift to the destination. But on her denial, he forcibly made her to sit on the cycle and took her to a nearby Cashew-nut field. There, the petitioner forcibly committed rape and threatened to kill her, lest she disclosed the incident before anybody. In the evening, the petitioner took the victim to the village Tentulikhunti and kept her in his Aunt’s house and again committed rape on her thrice in that house without her consent. 3. On the next day, i.e. on 14.09.2006 morning, the petitioner brought the prosecutrix in the cycle and left her near same tamarind tree Page 2 of 9 from where she was lifted. While doing so, the accused again alleged to had threaten her to take away her life, lest she disclosed the matter before others. Although the prosecutrix went to her maternal grandfather’s house, she did not disclose the matter before anybody out of fear. On 15.09.2006, her mother Pramila came to that place to take her back and on query, the prosecutrix disclosed about the rape by the petitioner before her mother. Her mother further disclosed the same to her husband and eventually called a meeting in the Panchayat. The petitioner’s father participated in the matter but refused to settle the matter. Therefore, the F.I.R. was registered as Tentulikhunti P.S. Case No.59 of 2006. 4. After the investigation, the charge sheet was filed against the petitioner and the charge was framed against him for the offences under Sections-376/506 IPC. 5. The prosecution examined 21 witnesses. P.W.15 was the victim whereas P.W.16 is the mother of the victim, who lodged the F.I.R. P.W.19 is the father of the victim. P.W.7 was the Medical Officer, who examined the accused on police requisition whereas P.W.9 was the Page 3 of 9 Medical Officer, who examined the victim. P.W1 is the Aunt of the accused in whose house the victim was kept for one day where the part of the offence had taken place. 6. The testimony of P.W.15 was very categorical, which had been reflected in the F.I.R. The testimony of the said prosecutrix corroborated with the testimony of her mother and father. P.W.1, who is the aunt of the accused, had also confirmed the fact that the accused had stayed with the victim in the night of the occurrence. However, P.Ws. 2, 8 & 11, the villagers had not supported the prosecution case. P.W.9 had confirmed the factum of sexual intercourse being the doctor examining the victim. Taking into consideration the entire evidence on record, the Trial Court found the petitioner guilty for the offence under Section 376 IPC and Section 506 IPC as well and convicted him there under. 7. The petitioner was accordingly sentenced to undergo R.I. for a period of seven years and pay fine of Rs.5000/- (Rupees five thousand) in default to undergo R.I. for further period of one year. 8. Aggrieved by the aforementioned judgment of conviction and order of sentence dated 22.01.2009 passed by the learned C.J.M.-cum- Page 4 of 9 Asst. Sessions Judge, Nabarangpur, the petitioner filed the appeal being Criminal Appeal No.19 of 2013 before the learned Addl. Sessions Judge, Nabarangpur. Learned Addl. Sessions Judge had meticulously dealt with the evidence on record and analyzed the reasoning given by the Court below while recording the conviction. The Appellate Court had given the following finding: “7. As regards the inconsistencies and improbabilities in evidence on record claimed on behalf of the appellant, it is seen that the allegation of the victim regarding forcible sexual intercourse on her being not corroborated by medical evidence, the appellant cannot be held liable for the offence as alleged. The settled principle of law is that in a case of rape, the testimony of the victim has vital importance and unless there are compelling reasons, which necessitated for looking for corroboration of her statement, the court should find no difficulty to act on the testimony of the victim of sexual assault alone to convict a accused, where her testimony inspires confidence and found to be reliable as was in the case of State of Punjab Vrs. Gurumit Singh reported in 1996(II) SCC 384. The victim girl, PW 15 has elaborately narrated the incident with regard to sexual assault on her by the appellant as reflected in the FIR lodged by her mother under Ext. 6. PW 15 has testified that the appellant forcibly took her to a nearby cashewnut field and committed rape on her. The appellant is her co- villager, whom she knew since her childhood. During cross- examination, it is revealed that the appellant put off her wearing apparels at the cashewnut plantation and committed rape upon her twice and that she sustained injuries on her private parts. In the same night, the appellant again committed rape on her twice in the house of his aunt, Diptimani Bagh. Nothing substantial is brought out during her lengthy cross-examination to discredit her above testimony on record. It is also elucidated during cross examination that she was subjected to sexual intercourse by the appellant for the first time and the same was a continuous and complete sexual intercourse. 8. It is argued that the medical officer, PW 9 did not find any sign of recent sexual intercourse on her person and as such, the testimony of Page 5 of 9 PW 15 is not to be relied upon. PW 9 examined the victim on 24.9.06 on police requisition and found no sign of recent sexual intercourse on her person. The alleged incident took place on 13.9.06 and medical examination was made after more than ten days of the alleged occurrence. In view of the testimony of the prosecutrix and comparing the same with the text as found in Modi’s Book of Medical Juriprudence and Toxicology, which describes the injuries that may be found in a nubile virgin after a complete sexual intercourse as described “In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears (more so in posterior half), the edges of which are red, swollen and painful and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days became shrunken and look like small tags to tissue”. Accordingly, it is quite probable that the injuries sustained by the victim in her private part might have been healed by the time, she was medically examined by the Doctor and as such, the contention raised on behalf of the defence to disbelieve the testimony of the victim is not acceptable. Perusal of the evidence of PW 15 further reveals that when he arrived at Indrabati at 3pm and got down from the bus near a tamarind tree to proceed towards her grand-father’s house, the appellant came and asked her regarding her destination and proposed to take her on his bicycle and on her refusal, she was forcibly lifted on the bicycle to a nearby cashew-nut field, where he committed rape upon her. It is also added by her that the appellant had threatened to kill her, lest she disclosed the incident before anyone and thereafter took her to Tentulikhunti and kept her in the house of Diptimani Bagh for a night and on the next day, again took her and left her near the said tamarind tree, wherefrom she was lifted the previous day and went away and her above evidence found corroboration from her mother and other witnesses and there is nothing on record to disbelieve her above testimony and the learned lower court has rightly convicted the appellant to the charge leveled against him and no perversity is found therein to take a different view and I confirmed the finding of the learned lower Court.” 9. Finding the petitioner guilty for the offences under Sections- 376/506 IPC, the Appellate Court had also confirmed the sentence imposed by the Trial Court. Page 6 of 9 10. Having failed in the appeal, the petitioner has challenged the judgment of conviction and order of sentence passed against him by the Courts below by filing the present revision petition. 11. Heard Mr. Basudev Mishra, learned counsel for the petitioner and Mr. Jyoti Prakash Patra, learned Additional Standing Counsel for the for the State (Vigilance). 12. At the outset, Mr. Mishra, learned counsel for the petitioner submitted that he would not press this petition regarding the challenge to the judgment of conviction recorded against the petitioner. However, he confined his argument to the quantum of sentence. He had drawn my attention to a joint affidavit dated 19.06.2015 filed on behalf of the accused and the victim prosecutrix. The joint affidavit reads as under: “1. That the marriage of the petitioner-Jyoti Dongri and the victim Jayanti Bhatra (in Tentulikhunti P.S. Case No.59 of 2006) was solemnized on 04.02.2010 and since then they are living as husband and wife. 2. That in wedlock of the petitioner and victim-Jayanti Bhatra a son namely Raj Dongri was born on 23.09.2013. 3. That the petitioner and the victim are living peacefully with their son and leading a very happy conjugal life. I, Sri Jyoti Dongri aged about 29 years son of Narayan Dongri, vill- Padapalla, P.S. Khatiguda, Dist- Nabarangpur- Petitioner in the Criminal Revision, do hereby solemnly affirm and Page 7 of 9 state that the facts stated above are true to the best of my knowledge and belief.” He had submitted that this fact was also apprised to the Appellate Court and leniency on the sentence was prayed. However, the Appellate Court had rejected the prayer. The petitioner had already undergone the custody for a period of three years, two months. The petitioner had also married the victim and they are leading a happy conjugal life. They are blessed with a son on 23.09.2013. In the said changing circumstances, sending the petitioner to undergo further custody would serve no purpose. 13. Therefore, I am of the considered view that the petitioner should be granted the benefit of Probation of Offenders Act while maintaining the conviction recorded against the petitioner by the Courts below for the offences under Sections-376/506 IPC. 14. Accordingly, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act for a period of one years on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called Page 8 of 9 upon during such period and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one years.
Decision
15. The Criminal Revision is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 16th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Jul-2024 13:57:55 Page 9 of 9