The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.21 of 2019 From judgment and order dated 25.01.2019 passed by the Addl. Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.178/67 of 2016-14. ---------------------------- Guru Charan Mahanta ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Akhaya Kumar Beura Amicus Curiae For Respondent: - Mr. Arupananda Das Addl. Govt. Advocate ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 18.01.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Guru Charan Mahanta faced trial in the Court of learned Addl. Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.178/67 of 2016-14 for commission of offences punishable under section 376(2)(i) of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’) on the // 2 // accusation that on 12.08.2014 at about 2 p.m., he committed rape on the victim who was aged about twelve years at village Khireitangiri in his house. The learned trial Court vide impugned judgment and order dated 25.01.2019 found the appellant guilty of the offences charged and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs. 5,000/- (five thousand), in default to undergo R.I. for a period of one year for the offence under section 376(2)(i) of the Indian Penal Code while awarding no separate sentence for offence under section 4 of the POCSO Act in view of the provision under section 42 of the POCSO Act. 2. The prosecution case, in short, is that the victim (P.W.6) was a dumb girl and aged about twelve years at the time of occurrence and she is the daughter of P.W.2 and P.W.3. On the date of occurrence i.e., on 12.08.2014 during day time at 2 O’ clock, while the victim was playing on the village road, the appellant called her inside his house and committed rape on her as a result of which the victim sustained bleeding injuries on her private part and there was blood stains also on her wearing apparels. After the occurrence, while the victim was crying, her father (P.W.2) returned home after performing his labour work and seeing the victim crying, he made a query to the victim but Page 2 of 36 // 3 // the victim showed her pant to him which P.W.2 could not follow. Subsequently, P.W.3, the mother of the victim who had also gone to work in her agricultural land returned and found the victim crying and when she asked the victim about the reason of her crying, the victim caught hold of her mother’s fingers and took her to the house of the appellant and pointed out her fingers at the appellant and indicated through signs that the appellant had committed sexual intercourse on her. P.W.3 intimated to her husband (P.W.2) as to what the victim conveyed before her through signs. Thereafter, on the request of P.W.2, a written report was scribed by P.W.1 Prafulla Chandra Mohanta and the matter was reported before the Inspector-in-charge of Turumunga police station. 3. On the basis of such first information report (Ext.1) lodged by P.W.2, Turumunga P.S. Case No.68 dated 12.08.2014 was instituted under section 376 of the Indian Penal Code and section 4 of the POCSO Act against the appellant. After registration of the case, the Inspector in-charge of Turumunga police station directed P.W.9 Babaji Charan Behera, S.I. of police attached to Turumunga police station to investigate the matter. P.W.9 took up investigation of the case and during course of investigation, he examined the informant, the victim Page 3 of 36 // 4 // and other witnesses, visited the spot, prepared the spot map (Ext.8) on 13.08.2014. The victim was sent for medical examination to the District Headquarters Hospital, Keonjhar on police requisition where P.W.4 Dr. Padmalochan Mahanta examined her on 13.08.2014 who found one tear on the hymen on right lateral side with bleeding and he opined that such injury was possible due to forcible sexual intercourse and was caused within twenty four hours. It was also opined by the doctor (P.W.4) on the basis of ossification test that the age of the victim was within twelve to fourteen years. The appellant was arrested and his wearing apparels were seized under seizure list Ext.9. The wearing apparels of the victim i.e., one frock and chadi stained with blood were produced by the informant (P.W.2) and those were seized under seizure list Ext.6 and the biological sample of the victim was collected by the Medical Officer and those were handed over to the escorting constable of the victim who produced the same before the Investigating Officer (P.W.9) who seized it as per seizure list Ext.12. The appellant was sent to District Headquarters Hospital, Keonjhar for medical examination on police requisition and then he was forwarded to Court on 14.08.2014. On 01.09.2014, a prayer was made by the I.O. for recording the 164 Cr.P.C. statement of the victim and Page 4 of 36 // 5 // accordingly, the same was done on the very day by the learned S.D.J.M., Keonjhar as per the direction of leaned Special Judge, Keonjhar. The I.O. received the medical examination report of the victim on 03.09.2014 and on 24.09.2014, he made a prayer before the learned trial Court to send the exhibits to S.F.S.L., Rasulgarh, Bhubaneswar for chemical analysis and ultimately he received the chemical examination report which has been marked as Ext.16. On 18.10.2014, P.W.9 handed over the charge of investigation to P.W.8 Dibyakanti Lakra who re- examined the witnesses and seized one DVD HD recording of the victim from the videographer (P.W.5) and on completion of investigation, he submitted charge sheet under section 376 of the Indian Penal Code and section 6 of the POCSO Act against the appellant. 4. During course of trial, in order to prove its case, the prosecution has examined as many as nine witnesses. P.W.1 Prafulla Chandra Mohanta was the scribe of the F.I.R. (Ext.1) and he stated that the victim was unable to speak and he learnt about the occurrence from the mother of the victim who told him that the appellant had committed rape of the victim. On the request of father of the victim, he scribed the F.I.R. (Ext.1). Page 5 of 36 // 6 // P.W.2 Laxman Mohanta is the father of the victim and he is the informant in the case. He stated that the victim was capable of hearing but unable to speak properly and he also stated about the disclosure made by his wife (P.W.3) regarding commission of rape on the victim by the appellant. P.W.3 Sambhari Mohanta is the mother of the victim, who stated about the disclosure made by the victim about the occurrence before her through signs. P.W.4 Dr. Padmalochan Mahanta was the O & G Specialist, D.H.H., Keonjhar, who medically examined the victim (P.W.6) on police requisition and proved the medical examination report vide Ext.2. P.W.5 was the videographer who prepared the videograph disc (DVD HD recording) of the victim in presence of police while police was recording her statement under section 161 of Cr.P.C. and the same was done in the house of the victim. P.W.6 is the victim girl. P.W.7 Dr. Suresh Chandra Mohapatra was the Medicine Specialist, D.H.H., Keonjhar, who medically examined the appellant on police requisition and proved the medical examination report vide Ext.5. Page 6 of 36 // 7 // P.W.8 Dibyakanti Lakra was the Inspector in-charge of Turumunga police station and on 18.10.2014 he took up charge of investigation of the case from P.W.9 and on completion of investigation, submitted charge sheet. P.W.9 Babaji Charan Behera, S.I. of police, attached to Turumunga police station took up investigation of the case as per the direction of the Inspector in-charge and handed over the charge of investigation to P.W.8. The prosecution exhibited sixteen numbers of
Legal Reasoning
documents. Ext.1 is the first information report, Ext.2 is the medical examination report, Ext.3 is the certificate issued by Central Higher Commissioner in respect of Mohan Studio, Ext.4 is the 164 Cr.P.C. statement, Ext.5 is the medical examination report of the appellant, Exts.6, 9, 11 and 12 are the seizure lists, Ext.7 is the medical examination report of the victim, Ext. 8 is the spot map, Ext.10 is the requisition for medical examination of the appellant, Ext.13 is the prayer of the I.O. for recording 164 Cr.P.C. statement of the victim, Ext.14 is the prayer for sending seized exhibits for C.E. examination, Ext.15 is the office copy of forwarding letter to S.F.S.L., Bhubaneswar for chemical examination and Ext.16 is the Chemical Examination Report. Page 7 of 36 // 8 // The prosecution also proved one material object. M.O.I is the Hard disk of the DVD HD prepared by P.W.5 5. The defence plea of the appellant was one of denial and it was pleaded by the appellant that he was not present in his house. The victim sustained injuries while playing on the village road and due to previous enmity on account of family dispute, the appellant has been falsely entangled. 6. The learned trial Court after analyzing the oral and documentary evidence on record came to hold that basing upon the ossification test, physical appearance and eruption of teeth, the Medical Officer opined the victim to be aged about twelve to fourteen years as on the date of examination and the prosecution has well proved that the victim was a minor and was less than sixteen years of age at the time of incident. The learned trial Court after analyzing the evidence of the victim, her parents and other witnesses came to hold that the victim was a mentally disabled girl and was unable to speak, but she communicated the incident to her mother after her arrival by signs and the same has been interpreted by her mother. It was further held that from the chemical examination report (Ext.16), it is crystal clear that the wearing apparels of the victim were stained with blood and semen and even though the same has Page 8 of 36 // 9 // been confronted to the appellant in his statement recorded under section 313 of Cr.P.C., but he stated that he knew nothing about the same. Though the defence examined one witness to substantiate that the victim sustained injury on account of fall on the stony surface on the village road, but she sustained injury on the back and the learned trial Court did not place any reliance on such statement of D.W.1 and after analyzing the evidence of the victim, her parents and medical evidence came to hold that the prosecution has well proved its case through cogent, credible and unimpeachable evidence that the victim was less than sixteen years of age at the time of occurrence and that she was ravished by the appellant and accordingly, held the appellant guilty under section 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act. 7.
Legal Reasoning
Mr. Akhaya Kumar Beura, learned counsel who was engaged as Amicus Curiae as per the order dated 11.01.2023 contended that the 164 Cr.P.C. statement of the victim so also her statement during trial has not been videographed which was a clear violation of the second proviso to sub-section (5A)(a) of section 164 Cr.P.C. so also section 119 of the Evidence Act which makes the statement inadmissible. It is argued that though the occurrence in question stated to have taken place on 12.08.2014 Page 9 of 36 // 10 // and the first information report was lodged also on the very day and even though sub-section (5A)(a) of section 164 of Cr.P.C. specifically provides that in a case punishable under section 376 I.P.C., inter alia, some of the other offences, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of offence is brought to the notice of the police, but in the case in hand, the 164 Cr.P.C. statement of the victim was recorded only on 01.09.2014 and therefore, there was inordinate delay of eighteen days in the recording of such statement which raises question mark on the fairness of investigation. It is further argued that the statement of the victim who gave only signs was interpreted by none else than her mother (P.W.3) and since the 164 Cr.P.C. statement of the victim was treated as her examination-in-chief, therefore, there was every possibility that the appellant was falsely implicated in the case on account of his previous dispute with the family of the victim and it was not the victim’s statement but a statement concocted by her mother and in a case of this nature, an independent interpreter should have been appointed for recording of the statement of the victim. Page 10 of 36 // 11 // It is further argued that even though there is specific provision under section 24(1) of the POCSO Act that the statement of the child has to be recorded by a woman police officer not below the rank of Sub-Inspector, but the same has not been done and the victim’s statement was recorded by P.W.9 Babaji Charan Behera, S.I of police, Turumunga police station. It is further argued that though the further requirement as per section 24(2) of the POCSO Act is that the police officer while recording the statement of the child shall not be in uniform but no specific evidence has been adduced by the prosecution in that respect. The learned counsel further urged that though section 27(2) of the POCSO Act specifically states that in case the victim is a girl child, the medical examination shall be conducted by woman doctor, but in the case in hand, medical examination of the victim was conducted by Dr. Padmalochan Mohanta (P.W.4), a male person. It is further argued that the evidence has come on record that the village road where the victim was playing at the time of occurrence was a metal road and D.W.1 specifically stated that she was playing with the victim on the village road and while they were so playing, the victim fell down on the stony surface and she sustained some injuries and started crying and Page 11 of 36 // 12 // therefore, possibility of the victim sustaining the injuries as noticed by the doctor (P.W.4) cannot be ruled out and the age aspect of the victim has also not been properly proved. Therefore, when the prosecution has not successfully established its case, it is a fit case where benefit of doubt should be extended in favour of the appellant. 8. Mr. Arupananda Das, learned Addl. Government Advocate, on the other hand, submitted that even though it has been provided under sub-section (5A)(a) of section 164 of Cr.P.C. so also under section 119 of the Evidence Act that in case of recording of the statement of the victim who was found to be a mentally or physically disabled, not only the assistance of an interpreter or a special educator is to be taken for recording of her statement, but also the same has to be videographed in view of the amendment brought on record with effect from 03.02.2013, however there was no such facility available in the Courts of State of Odisha at the time when the statement of the victim (P.W.6) was recorded under section 164 Cr.P.C. by the learned S.D.J.M., Keonjhar on 01.09.2014 so also when she was examined in the trial Court on 08.12.2017. The learned counsel for the State submitted that recently on the basis of the decision of the Hon’ble Supreme Court in the case of Smruti Tukaram Page 12 of 36 // 13 // Badade -Vrs.- The State of Maharashtra & another reported in 2022 SAR (Cri) 361, Vulnerable Witnesses Deposition Centers (hereafter ‘VWDC’) have been opened in all the District Court buildings, but it has not been done even in the outlying stations and therefore, merely because on account of non-availability of infrastructures, the statement of the victim could not be videographed, that cannot be a ground not to place any reliance on her statement or disbelieving the prosecution case and acquitting the appellant. The learned counsel for the State further argued that at the time of recording of the 161 Cr.P.C. statement, it was videographed and the person who prepared the videographed disk has been examined as P.W.5 and he has proved the hard disk of the DVD which has been marked as M.O.I. The learned counsel further argued that the first information report, statement of the victim recorded under section 161 Cr.P.C. along with the seizure lists etc. were forwarded to Court on 14.08.2014, when the appellant was forwarded to Court after his arrest, however, no prayer was made by the I.O. for recording the statement of the victim under section 164 Cr.P.C. earlier and when it was made on 01.09.2014, on the same day, the learned Special Judge, Keonjhar passed Page 13 of 36 // 14 // the order in directing the learned S.D.J.M., Keonjhar to record the 164 Cr.P.C. statement and accordingly, the same was done. Learned counsel for the State urged that non- following the requirements of section 24(1) & (2) and section 27 of the POCSO Act cannot be a factor to hold that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case and in the case in hand, the appellant has not brought on record anything to show that the investigation suffered from the vice of unfairness or bias. It is further argued that the statement of the victim, her parents and the medical evidence relating to the age of the victim has remained unchallenged and no suggestion has been given to the victim that she sustained injury on her private part on account of fall on the village road while playing nor the doctor (P.W.4) was even put any questions by the learned defence counsel regarding the possibility of the injuries sustained by the victim on account of such fall and therefore, the defence plea that the victim sustained injury on her private part on account of fall on the village road is not acceptable. The learned counsel further urged that since the victim was a dumb girl and she could only speak few words like Page 14 of 36 // 15 // ‘Maa’, ‘Bapa’, ‘Nana’, ‘Dada’ as stated by her parents, not only at the time of recording of her 161 Cr.P.C. statement but also at the stage of recording of her 164 Cr.P.C. statement and evidence during trial, her mother (P.W.3) who was able to understand her signs was engaged as an interpreter and accordingly, the victim’s statement was recorded which is permissible in law and there is no illegality in the same. Learned counsel further urged that the Chemical Examination report (Ext.16) clearly indicates that blood patch and semen were found on the frock and chadi of the victim and it was found to be of human origin which corroborates the evidence of the victim regarding commission of rape on her and therefore, the learned trial Court has rightly held the appellant guilty of the offences charged. 9. Adverting to the contentions raised by learned counsel for the respective parties, the following points have come up for determination:- (i) Whether non-videography of the statement of victim (P.W.6) as provided under the second proviso to sub- section (5A)(a) of section 164 of Cr.P.C. so also under section 119 of the Evidence Act makes her statement inadmissible? Page 15 of 36 // 16 // (ii) Whether delay in making prayer for recording the 164 Cr.P.C. statement of the rape victim by the I.O. makes the investigation perfunctory? (iii) Whether there was any illegality committed by the Courts in taking the assistance of the mother of the victim as an interpreter of the victim’s signs while recording her statement? (iv) Whether non-following the procedure laid down under section 24(1) & (2) and section 27 of the POCSO Act can be a factor to hold that the investigation is vitiated? (v) Whether the victim was a minor and was less than sixteen years of age at the time of incident? (vi) Whether the defence plea that the victim was playing on the village road and she fell down and received injuries is acceptable? (vii) Whether the prosecution has succeeded in establishing its case that the appellant committed rape on the victim? Point no. (i): 10. The statement of the victim recorded under section 164 Cr.P.C. was treated as her examination-in-chief as per the Page 16 of 36 // 17 // provision under clause (b) of sub-section (5A) of section 164 Cr.P.C. Sub-section (5A) of section 164 Cr.P.C. reads as follows:- “(5A)(a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376-E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be Page 17 of 36 // 18 // considered a statement in lieu of examination- in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.” Section 119 of the Evidence Act reads as follows:- “119. Witness unable to communicate verbally.– A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence: Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.” On a bare reading of two provisos under clause (a) of sub-section (5A) of section 164 Cr.P.C. and also section 119 of the Evidence Act, it is clear that in a case of this nature where the victim is a dumb witness, her statement is to be recorded with the assistance of an interpreter or a special educator and in this case, the same has been done by recording the statement with the assistance of the mother of the victim as an interpreter, Page 18 of 36 // 19 // but one thing which seems not to have been done is that the victim’s statement has not been videographed though not only in second proviso of clause (a) of sub-section (5A) of section 164 Cr.P.C., but also in the proviso to section 119 of the Evidence Act, it is mentioned that such statement shall be videographed. While recording evidence of a dumb witness, there must be a record of signs and not the interpretation of signs. It seems that the statement of the victim was recorded by the I.O. (P.W.9), which was videographed by P.W.5 Braja Mohan Mishra, who specifically stated that the victim was a dumb and she was unable to talk but she was able to communicate her version by sign and the mother of the victim, staff of Child Protection Office, lady constable and others were present and staff of the Child Protection Office were asking questions to the victim and she was giving her answers by sign. The DVD HD recording of the victim was received from P.W.5 by the Investigating Officer (P.W.8), which has been marked as M.O.I but P.W.5 has stated that the disc was found to be damaged after opening the cover. The Hon’ble Supreme Court in the case of In Re: Assessment of The Criminal Justice System In Response To Sexual Offences reported in (2020) 78 Orissa Criminal Page 19 of 36 // 20 // Reports (SC) 150, while analyzing the provision of sub-section (5A) of section 164 of Cr.P.C. has observed as follows:- “16. Sub-section (5A) of section 164, Code of Criminal Procedure provides for recording of statement of the victim by the Court. Other than recording of statements under section 164, for the purpose of recording of statements during the trial, section 119 of the Evidence Act provides for assistance of an interpreter or a special educator in recording the statement of the witness unable to speak but capable to give evidence in any other manner. It further provides that such statement shall be videographed. Thus, we consider it appropriate to call for status report with regard to the following:- (1) whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police? (2) whether the Magistrate Courts or the trial Courts have the availability of the interpreter or special educator in each districts? (3) whether the Magistrate Courts or the trial Courts have facility of videography of the statements and depository of the same in the Courts?” Page 20 of 36 // 21 // It appears that after the pronouncement of the judgment in the case of Smruti Tukaram Badade (supra) on 11 January 2022, VWDC have been opened in all the thirty districts of State of Odisha in the District Court buildings but the same facility has not yet been made available in the outlying stations. Therefore, since the infrastructure was not available, even though the statute required that in a case of this nature, the statement of the victim (P.W.6) should have been videographed, but in absence of the infrastructure, the non- videography of the recording of the statement of the victim either under section 164 Cr.P.C. or in the trial Court cannot make her statement inadmissible or be a ground to discard her evidence. In the outlying stations of a District Court, whenever such a case comes, where in a case of this nature, the videography facilities are not available for recording the statement of a witness who is temporarily or permanently mentally or physically disabled, either under section 164 of Cr.P.C. or during trial, which requires the assistance of an interpreter or a special educator and further requires the recording to be videographed, the concerned Court shall with the permission of the learned District & Sessions Judge of that Page 21 of 36 // 22 // district use the VWDC facility available in the District Court building for such purpose. Point no. (ii): 11. The occurrence in question stated to have taken place on 12.08.2014. The first information report was lodged also on the very day. Even though sub-section (5A)(a) of section 164 of Cr.P.C. specifically provides that in a case punishable under section 376 I.P.C., inter alia, some of the other offences, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of offence is brought to the notice of the police, but in the case in hand, the 164 Cr.P.C. statement of the victim was recorded only on 01.09.2014. The statement of the victim was recorded by the I.O. (P.W.9) on 12.08.2014 i.e., on the date of registration of the F.I.R. and such statement was also forwarded to the Court on 14.08.2014 along with the forwarding report of the appellant and the signature and the date of the concerned Court dated 14.08.2014 is available on the 161 Cr.P.C. statement of the victim. P.W.5 has stated that he prepared the videographed disk in presence of police while the police was recording the Page 22 of 36 // 23 // statement of the victim under section 161 Cr.P.C. and the same was done in the house of the victim. He further stated that the victim was a dumb girl and she was unable to speak and she was able to communicate her version by signs and the mother of the victim, staff of the Child Protection Officer, lady constable and others were present and staff of the Child Protection Office were putting questions to the victim and she was giving her answers by signs. The Hard Disk of the DVD prepared has been marked as M.O.I and the videographed disk was found to be in a damaged condition when opened in Court. Though the date of recording has been incorrectly stated by P.W.5 to be on 16.10.2014, but in view of the evidence available on record, particularly the date mentioned in 161 Cr.P.C. statement of the victim which was received by the Court on 14.08.2014, the wrong date as stated by P.W.5 cannot be a ground to hold that the statement of the victim was not videographed. No prayer was made by the I.O. before the learned Special Judge, Keonjhar for recording the statement of the victim (P.W.6) under section 164 Cr.P.C. earlier and when it was made on 01.09.2014, on the same day, the learned Special Judge, Keonjhar passed order in directing the learned S.D.J.M., Page 23 of 36 // 24 // Keonjhar to record the 164 Cr.P.C. statement and accordingly, the same was done. It is the settled principle of law that it is not every delay in recording the statement, which may be fatal or the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. The question of delay in examining a witness during investigation or making a prayer for recording 164 Cr.P.C. statement of a witness is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case. The prosecution is under obligation to offer explanation for the delay and if the explanation is reasonable and plausible, testimony of the witness cannot be considered unacceptable because of his delayed interrogation. Apart from this, the defence must put specific questions to the investigating officer for the delay in recording his statement and must seek explanation from him. In the present case, no question was asked to the I.O. (P.W.9) by the defence for the delayed prayer made to the Court for recording of the statement of the victim (P.W.6) under section 164 of Cr.P.C. Considering the evidence of the victim (P.W.6), particularly when her statement was Page 24 of 36 // 25 // recorded by the I.O. (P.W.9) on the date of occurrence itself and forwarded to Court with the forwarding report of the appellant within two days, it cannot be said that the prosecution was deliberately taking time with a view to concoct a false case and decide about the shape to be given to the case. Had such questions been put to the I.O. (P.W.9), he would have explained the reason for not making prayer earlier for recording of 164 Cr.P.C. statement of the victim (P.W.6) to Court. Having not done so, the learned Amicus Curiae is not right in contending that there was delay in recording the 164 Cr.P.C. statement of P.W.6. The Hon’ble Supreme Court in the case of Banti -Vrs.- State of M.P. reported in 2004 Criminal Law Journal 372 held as follows: "As regards the delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses, the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable Page 25 of 36 // 26 // and the Court accepts the same as plausible, there is no reason to interfere with the conclusion." The mental and physical condition of a rape victim who was a minor girl cannot be ignored and therefore, the decision to make a prayer by the I.O. for recording the 164 Cr.P.C. statement of the victim depends upon her mental and physical condition and her readiness to come to Court to give her statement. Therefore, the delay in making prayer for recording the 164 Cr.P.C. statement of the rape victim by the I.O. cannot make the investigation perfunctory. Point no. (iii): 12. The victim (P.W.6) was a dumb girl. There is no dispute that a dumb witness need not be prevented from being a credible and reliable witness merely due to his physical disability. He is a competent witness in view of section 119 of the Evidence Act. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write provided such writing is written and signs made in open Court. Thus, in view of the provision under section 119 of the Evidence Act, the only requirement is that the witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence Page 26 of 36 // 27 // can be deemed to be oral evidence within the meaning of section 3 of the Evidence Act. Signs and gestures made by nods of head are admissible and such nods and gestures are not only admissible but possess evidentiary value. P.W.2, the father of the victim has stated that the victim was capable of hearing but unable to speak properly. She was almost a dumb girl but she was not deaf. He further stated that the victim calls him ‘Bapa’ and her mother ‘Maa’ and she can also tell ‘Dada’ and ‘Nana’ and nothing else. P.W.3, the mother of the victim has stated that the victim can only call “Maa’, ‘Bapa’, ‘Nana’ and ‘Dada’. After the occurrence, when the victim was found to be crying, P.W.2 made a query to her and the victim indicated something showing towards her pant, but P.W.2 could not follow the same. It was only her mother (P.W.3) who could follow from her signs as to what she was telling and what had been done to her by the appellant. P.W.3 was the best person to understand the signs of the victim in view of her close relationship. Therefore, the submission of the learned counsel for the appellant that an independent person should have been appointed as an interpreter is not acceptable. A person who is accustomed to understand the sign of the victim/witness can be appointed as the interpreter. If the mentally or physically Page 27 of 36 // 28 // disabled witness is specially educated to express himself though specific signs or intelligible gestures, then the assistance of the special educator who trained him can be taken. Therefore, when the defence has failed to bring out anything on record that P.W.3 misrepresented the signs and gestures of the victim when her statement was recorded by the I.O. (P.W.9) during investigation or at the time of recording of her statement either under section 164 Cr.P.C. and during trial by the Courts, no illegality can be said to have been committed by the Courts in taking the assistance of P.W.3, the mother of the victim as an interpreter of the victim’s signs while recording her statement. Point no. (iv): 13. It is correct that in view of section 24(1) of the POCSO Act, the 161 Cr.P.C. statement of the victim (P.W.6) as far as practicable should have been recorded by the woman police officer not below the rank of Sub-Inspector, which has not been done in this case. It was recorded by P.W.9, S.I. of Police who is a male person. According to the Oxford English Dictionary, ‘practicable’ means ‘capable of being put into practice, carried out in action, effected, accomplished, or done; feasible’. Webster's Third New International Dictionary defines the word ‘practicable’ inter alia as meaning ‘possible to practice Page 28 of 36 // 29 // or perform: capable of being put into practice, done or accomplished: feasible’. No question in that respect has been put to I.O. (P.W.9) by defence as to why a woman police officer was not asked to record the statement of the victim girl. The I.O. could have offered explanation for the same like non-availability of a woman police officer not below the rank of sub-inspector at Turumunga police station at the relevant time. Similarly, section 24(2) of the POCSO Act states that the police officer while recording the statement of the child should not be in uniform. There is nothing on record that the police officer (P.W.9) while recording the statement of P.W.6 was in uniform. Unless the defence brings the same on record by putting questions to the witnesses in cross-examination, the Court cannot held on assumption that the procedure as laid down has not been followed. It appears that all other precautions like recording the statement of the victim in her house and that to in the presence of her mother as required under section 26 of the POCSO Act and also in the presence of staff of Child Protection Office were taken. Similarly, section 27(2) of the POCSO Act states that in case the victim is a girl child, the medical examination shall be conducted by a woman doctor. The medical examination of the Page 29 of 36 // 30 // victim (P.W.6) was conducted by P.W.4, a male doctor after the parents of the victim gave their consent for the same, but there is nothing on record as to how the appellant was prejudiced due to such examination. There is no dispute that the purpose of POCSO Act is to treat the minors as a class by itself and treat them separately so that no offence is committed against them as regards sexual assault, sexual harassment and sexual abuse. The sanguine purpose is to safeguard the interest and well being of the children at every stage of judicial proceeding. Section 27(2) of the POCSO Act has been designed to protect the girl child from embarrassment and to ensure that she is comfortable, as it was thought to be in the best interest of the girl child. It is not meant to be a safeguard in favour of the accused. The appellant has not been able to show what prejudice has been caused to him just because the victim was examined by a male doctor like P.W.4. The rules of procedure are meant to advance and not to obstruct the cause of justice. Therefore, on the ground of non- following the procedure laid down under section 24(1) & (2) and section 27 of the POCSO Act, the investigation cannot be said to be vitiated and the prosecution case cannot be discarded. Page 30 of 36 // 31 // Point no. (v): 14. Coming to the age of the victim, the father of the victim being examined as P.W.2, has stated that the victim was fourteen years of age at the time of his deposition. P.W.2 deposed in Court on 07.07.2016 whereas the occurrence took place on 12.08.2014. The mother of the victim being examined as P.W.3 has stated that the victim was aged about twelve years at the time of occurrence. The victim was examined by the doctor (P.W.4) who stated that on examination of the X-ray plates, he found the victim was of twelve to fourteen years of age and his opinion as regards to the age of the victim was based on ossification test, her physical appearance and eruption of teeth. When the victim was examined under section 164 Cr.P.C., her age has been mentioned to be twelve years and when her statement has been recorded in Court on 08.12.2017, her age has been mentioned to be 15 years. Not a single suggestion has been given by the defence to any of these witnesses challenging the age of the victim. The learned trial Court has come to a finding on the basis of such evidence that victim was less than sixteen years of age at the time of incident. I find no infirmity in the finding of the learned trial Court and Page 31 of 36 // 32 // therefore, the prosecution has successfully proved that victim was below sixteen years of age at the time of occurrence. Point no. (vi): 15. The defence plea that the victim (P.W.6) fell down on the village road while playing which was a metal road and sustained injuries, is not acceptable. No such plea has been taken by the appellant in his accused statement. No such suggestion has been given to the victim when she deposed as P.W.6. No questions have been put to the doctor (P.W.4) who examined the victim on police requisition regarding possibility of injuries as noticed on the person of the victim on account of her fall on the village road. D.W.1 though stated that she was a friend of the victim and while playing on the stony surface, the victim fell down and there was bleeding on the back of the victim, but the doctor (P.W.4) has not noticed any injury on the back of the victim. D.W.1 could not say the exact time when the victim fell down on the road. Thus, the learned trial Court has rightly not placed any reliance on such defence plea. Point no. (vii): 16. The victim in her 164 Cr.P.C. statement has categorically stated that the appellant called her to his house and against her will, he committed rape on her for which she Page 32 of 36 // 33 // sustained bleeding injuries on her private parts and there was stain of blood on her frock and chadi. In view of clause (b) of sub-section (5A) of section 164 Cr.P.C., the statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered as examination-in-chief, as specified in section 137 of the Indian Evidence Act and the same thing has been done in this case. Nothing has been elicited in the cross-examination of the victim to disbelieve her statement. Though suggestion has been given to the victim that on account of dispute due to landed properties, her mother was quarrelling with the wife of the appellant and being influenced by her mother, she was deposing falsely, but she denied such suggestion. P.W.3, the mother of the victim has also denied the suggestion that there was any kind of dispute between her family and that of the appellant. P.W.2, the father of the victim specifically stated that he had no land dispute with the appellant. The disclosure made by the victim after the occurrence regarding rape committed on her by the appellant is res gestae which is admissible under section 6 of the Evidence Act as it is a spontaneous statement connected with the fact in issue and there was no time interval for fabrication. Therefore, the submission of the learned Amicus Curiae that there was Page 33 of 36 // 34 // possibility of false implication of the appellant by the victim being tutored by her parents is not acceptable. The doctor (P.W.4) who examined the victim on the next day of occurrence has specifically stated he noticed one tear on the hymen on right lateral side was bleeding which was due to forcible sexual intercourse and her examination reveals there were recent sign and symptoms of sexual intercourse. Nothing has been elicited in the cross-examination of the doctor. Therefore, the evidence of the victim which not only gets corroboration from the evidence of her parents P.W.2 and P.W.3 but also from the medical evidence. The chemical examination report (Ext.16) indicates that the victim’s frock and chadi which were sent for examination, were found to be having blood patch and semen of human origin. In my humble view, the learned trial Court has rightly came to the conclusion that not only the victim was less than sixteen years at the time of occurrence, but in view of her evidence and that of her parents and medical evidence, the prosecution has successfully established the charges under section 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act against the appellant. The learned trial Court in view of section 42 of the POCSO Act has imposed sentence only for the offence under section 376(2)(i) which is quite justified and Page 34 of 36 // 35 // the substantive sentence imposed is the minimum sentence prescribed for such offence. 17. In view of the foregoing discussion, I find no infirmity or illegality in the impugned judgment and the learned trial Court has rightly found the appellant guilty of the offences charged and the same is hereby upheld. The learned trial Court has recommended the case of the victim to District Legal Services Authority, Keonjhar for payment of compensation under ‘The Odisha Victim Compensation Scheme, 2012’. The payment shall be made at an earliest, if the same has not yet been done. Accordingly, the JCRLA being devoid of merits, stands dismissed. Trial Court record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Mr. Akshaya Kumar Beura, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). Page 35 of 36 // 36 // The matter be placed before Hon'ble the Chief Justice for considering and circulating the copy of judgment to the learned District and Sessions Judges for implementing the observations made in paragraph 11 of the judgment. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 18th January 2023/Pravakar Page 36 of 36