MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.34 of 2017 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 21st December, 2016 passed by the learned Additional Sessions Judge, Sundergarh in S.T. Case No.111 of 2015. Naresh Majhi State of Odisha ---- -versus- …. Appellant …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Ranjit Mohanty (Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 02.04.2024 : Date of Judgment : 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question 21st December, 2016 passed by the learned Additional Sessions Judge, Sundergarh in S.T. Case No.111 of 2015 arising out of G.R. Case No.385 of 2015 corresponding to Bhasma P.S. Case No.47 of 2015 in the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Sundergarh. JCRLA No.34 of 2017 Page 1 of 10 The Appellant (accused) thereunder has been convicted for committing the offence under section 447/376(2)(m) of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Ten Thousand) for commission of the offence under section 376(2)(m) of the IPC; and undergo rigorous imprisonment for three months under section 447 of the IPC in default to undergo rigorous imprisonment for one (1) year with the stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- On 02.03.2015 evening, the victim (Informant-P.W.2) had been to attend the call of nature in her Bari. It is stated that the accused trespassed into that Bari. He (accused) then forcibly making her lie on the ground and giving threat to kill her by throttling, committed rape upon her. Thereafter, he (accused) fled away when he found some people gossiping on the road side. The victim (Informant-P.W.2), having sustained injuries, returned home with pain and on the next morning, went to the Hospital for treatment. She, out of shame, did not immediately reached out the police for informing the incident and necessary action. However, on 10.04.2015, she lodged the report with the Inspector- in-Charge (I.I.C.) of Bhasma Police Station (P.S.). JCRLA No.34 of 2017 Page 2 of 10 The I.I.C., receiving the above written report of the
Facts
Informant, treated the same as FIR (Ext.1) and upon registration of the criminal case, directed Sub-Inspector (S.I.) of Police to take up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.14) examined the Informant (P.W.2) and also the scribe (P.W.4) and recorded their statements under section 161 of the Cr.P.C. The I.O. (P.W.14), having visited the spot, prepared the spot map (Ext.5). By that time, the victim (P.W.2) had already medically examined, having remained under treatment for some period. As the accused was absconding, the I.I.C. had arrested him later and sent him for his medical examination. On completion of the investigation, the I.O. (P.W.14) submitted the Final Form placing this accused to face the Trial for commission of the offence under sections 447/376(2)(m) of the IPC. 4. Learned S.D.J.M., Sundergarh, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. The prosecution, in support of its case, has examined in total fourteen (14) witnesses during Trial. Out of whom, as JCRLA No.34 of 2017 Page 3 of 10 already stated, the victim (Informant-P.W.2). P.W.4 is the scribe of the FIR (Ext.1). P.Ws.1, 3, 7, 8, 9 & 10 are the independent witnesses whereas P.Ws.5 & 6 are the witnesses to the seizure. The Doctor, who had medically examined the accused, is P.W.11 whereas the Doctor, who medically examined the victim, is P.W.13. The I.O. of the case, at the end, has come to the witness box as P.W.14. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 5. Out of those; important are the FIR (Ext.1); the spot map (Ext.5); and the opinion of the Doctor, who had medically examined the victim, is Ext.4. 6. The accused, having taken the plea of complete denial and false implication, has, however, examined one witness (D.W.1) in support of such plea.
Legal Reasoning
vagina. Despite cross-examination, we find that no such material has come to surface to place any doubt over her testimony as regards the part played by the accused in sexually assaulting her. The evidence is found to be free from any contradiction nor we notice any such exaggeration. When we further look at the evidence of the Doctor (P.W.13), it is found that she had noticed one lacerated injury of the size of 2” X ½” on her private part extending from right side of hymen to libia majora, tearing JCRLA No.34 of 2017 Page 8 of 10 hymen & vagina up to libia majora; fourchette and posterior commissure was contused with excess bleeding from the wound. She has also stated that such examination, being made on 03.03.2015 in the labour room of the Hospital, the age of the injuries were found to be within 24 hours of her examination, which fully provide corroboration to the evidence of the victim (P.W.2). The evidence of P.W.7 also provide substantial corroboration in the sense that P.W.2, having called the son of P.W.7 to take her to the Hospital on her return from Hospital, when was asked by him (P.W.7), she had disclosed about the incident before him. With the above discussed evidence, we are of the considered view that the conviction of the accused for commission of the offence under section 447/376(2)(m) of the IPC is well in order and does not warrant interference. Now, coming to the alternative submission of the learned Counsel for the Appellant (accused) as to the quantum of sentence, we find this accused, was then at the relevant time was within the age group of 20-30. The punishment prescribed for commission of the offence under section 376(2)(m) of the IPC was rigorous imprisonment for minimum period of seven (seven) years extending to life and fine. As provided therein, the Court, JCRLA No.34 of 2017 Page 9 of 10 for adequate special reason, was having the power to impose the sentence of imprisonment of either description for a term of less than seven years. This accused hails from a district, which is the scheduled area of the State. All along during trial, the accused had been in custody and has been continuing as such till now. Taking into account all these factors, we find it to be a fit case for alteration of the custodial sentence imposed on this accused for the said offence under section 376 (2)(m) of the IPC. Accordingly, we are of the considered view that the sentence of rigorous imprisonment for a period of nine (9) years and fine of Rs.1000/- (Rupees One Thousand) in default to undergo further rigorous imprisonment for one month, would serve the interest and meet the ends of justice. 11. In the result, only with the above modification as to the order of sentence dated 21st December, 2016 passed by the learned Additional Sessions Judge, Sundergarh in S.T. Case
Arguments
7. Mr.Ranjit Mohanty, learned counsel for the Appellant (accused) submitted that the evidence of the victim (P.W.2) is not at all believable and the Trial Court, without taking note of the contradictions in her evidence and her varied statement as regards the incident as well as the role of the accused as against her, has committed the grave error in relying upon the same in fastening the guilt upon the accused. He further submitted the Page 4 of 10 JCRLA No.34 of 2017 evidence of the victim (Informant-P.W.2) is in variance with the evidence of the Doctor (P.W.13) and that shakes the credibility of the evidence of P.W.2. He, therefore, submitted that in the absence of any other corroborative evidence, the conviction of the accused for commission of the offence under section 376(2)(m) of the IPC cannot be sustained. It was submitted that taking into account the age of the victim as was then and also the age of the accused, who was within his thirty’s, the period of custodial sentence imposed by the Trial Court for commission of the offence under section 376(2)(m) of the IPC needs to be given a relook in the ends of justice keeping in mind that the scope for reformation of the accused is not foreclosed. 8. Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State, inviting our attention to the evidence of the victim (Informant-P.W.2), first of all submitted that there is absolutely no reason as to why an elderly lady aged about 66 years would falsely implicate this accused then aged around 25 years inviting the social stigma and putting her reputation completely at stake. He further submitted that the evidence of the victim (P.W.2) is quite natural and there is no other evidence available on record to entertain any doubt on her testimony as to the happenings in the incident and the successive assault upon her by this accused. He further submitted that although in this Page 5 of 10 JCRLA No.34 of 2017 particular case, the solitary testimony of P.W.2 is enough to fasten the guilt upon the accused, yet the same very much receive corroboration from the medical evidence as can be found from the deposition of the Doctor (P.W.13), who had medically examined the victim (P.W.2). He further submitted that simply because there is delay in lodging the FIR (Ext.1) as that has been well explained, which in no way is unacceptable, the conviction of the accused for commission of the offence under section 447/376(2)(m) of the IPC is well founded. Responding to the alternative submission of the learned counsel for the Appellants (accused) as regards the reduction of the custodial sentence in so far as the principal offence is concerned, he submitted that the Trial Court has rightly fixed the term, which in the facts and circumstances, cannot be said to be excessive. 9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.14 and D.W.1) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.5. 10. In the case at hand, the victim (P.W.2) is the informant. The incident, having taken place on 02.03.2015, the FIR (Ext.1) has been lodged little more than a month after the incident, i.e., on Page 6 of 10 JCRLA No.34 of 2017 10.04.2015. The victim, however, from the time of lodging of the FIR (Ext.1), has provided the explanation for such delay and has also so deposed during trial. She was under treatment in the Hospital from 03.03.2015, which has been stated not only by her (P.W.2), but also by the Doctor (P.W.13) that P.W.2 was treated as indoor patient in the District Head Quarters Hospital, Sundergarh. The victim (P.W.2), in her evidence, has also stated that the treatment, having continued for a month, she thereafter came to lodge the FIR. We find her evidence as regards such explanation to be quite plausible and when the defence has failed to bring any material that there was any such strong reason for the victim (P.W.2) to falsely implicate the accused in the incident inviting social stigma and ignominy, such explanation is found to have been rightly accepted by the Trial Court. It is the settled position of law that merely for the delay in lodging the FIR (Ext.1), the evidence of the victim is not to be doubted and if the Court finds the explanation for such delay to be plausible and acceptable and when the evidence of the victim is otherwise found to be reliable, the delay looses its significance. With this, let us proceed to examine the evidence of the victim (P.W.2). She has stated that on 02.03.2015 around 7.30 p.m, she had been to her Bari to answer the call of nature and when she was easing, the accused entered inside by jumping over the JCRLA No.34 of 2017 Page 7 of 10 green fence from behind and despite her shouting, he suddenly put his left hand in her mouth and then forcibly entered his palm into her vagina. She has further stated that with all the force at her command, when she removed the left hand of the accused from her mouth, she fell down on the ground and shouted for help and then the accused pressed her neck. It is her evidence that at that time some persons, having arrived there, the accused took to his heels. This P.W.2 was then aged about 66 years and she was unmarried. Her evidence is clear that at that point of time, no outsider was there nor anyone had seen the incident. She has also stated that immediately she, having an instinct to save her modesty, could not disclose the matter before any person of the village. However, she states to have narrated the incident to the Doctor (P.W.13). During cross-examination, she has further reported that the accused has inserted his right palm into her
Decision
No.111 of 2015, the Appeal stands disposed of. V. Narasingh, J. I Agree. Signature Not Verified Basu Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:42 JCRLA No.34 of 2017 (D. Dash) Judge (V. Narasingh) Judge Page 10 of 10