Criminal Appeal No. 12/16 of 2007 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.303 of 2012 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Parsu @ Parsuram Majhi ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. D. P. Dhal, Senior Advocate Mr. S.K. Dash, Advocate Mr. S. Mohapatra, Advocate Mr. A. Tripathy, Advocate Mr. B.S. Dasparida, Advocate For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.06.2024 :: Date of Judgment: 16.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Sections 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 31.03.2012 passed by the learned Adhoc Additional Sessions Judge, (F.T.C.-1), Balasore in Criminal Appeal No.12/16 of 2007/2005, whereby the judgment of conviction and order of sentence passed by the learned Assistant Sessions Judge, Nilgiri in S.T. Case No.1/19 of 2005 has been
Legal Reasoning
confirmed. 2. The case of the prosecution in brief is that on 03.06.2004, Basanti Majhi i.e. the victim in the present case came to her house crying and told her mother that while she was working at Bagudi, the accused-petitioner went near her and told that she should go home because her father was ill. Saying so, he took her from Bagudi to the house of his relative at village Teliapal and raped her. Thereafter, he left her and fled away. After hearing the above occurrence, the informant-Jagannath Majhi being the father of the victim searched the accused-petitioner and informed the villagers about the occurrence. To settle the dispute, the villagers called the petitioner for a solution but he did not turn up and on the other hand, absconded. Therefore, the father of the victim being the informant had lodged an F.I.R. before the Berhampur P.S. against the petitioner for the offence under Sections 420/376 of I.P.C. Page 2 of 12 3. The petitioner was subjected to prosecution in Berhampur P.S. Case No.29 of 2004 registered under Sections 420/376 of I.P.C. After completion of investigation, the police submitted charge-sheet against the petitioner for the offence under Section 376 of I.P.C. only. 4. To bring home charges, the prosecution examined as many as 9 witnesses in support of its case and proved six sets of documents and 10 sets of material objects. Out of which, P.Ws.1, 2 and 3 were the seizure witnesses. P.W.4 was the doctor who had examined P.W.8 on police requisition. P.W.5 was a co-villager of P.W.7. P.W.6 is the mother and P.W.3 is the brother of the victim. P.W.7 was the informant, P.W.8 is the victim and P.W.9 was the Investigating Officer in this case. On the other hand, the accused-petitioner had examined himself as D.W.1 and one Gobinda Tudu as D.W.2. 5. The learned Trial Court analyzed the evidence of all the P.Ws and believed that on the date of occurrence P.W.8 (victim) was below the age of 16 years. It has been prescribed under Section 376 of I.P.C. that sexual intercourse by an accused with a girl less than 16 years of age with or without her consent constitutes the offence of rape. Hence, the learned Page 3 of 12 Trial Court convicted the petitioner for commission of offence punishable under Section 376 of I.P.C. and sentenced him to undergo R.I. for three years and pay a fine of Rs.5,000/-, in default, to undergo further three months R.I. 6. The judgment of conviction and order of sentence dated 31.03.2005 passed by the learned Assistant Sessions Judge in S.T. Case No.1/19 of 2005 arising out of G.R. Case No.170 of 2004 corresponding to Berhampur P.S. Case No.29 of 2004 was called in question by filing Criminal Appeal No.12/16 of 2007/2005 before the Court of learned Additional Sessions Judge (FTC-1), Balasore by the petitioner. The learned Appellate Court vide its judgment and order dated 31.03.2012 had dismissed the appeal and sustained the conviction and sentence passed by the learned trial Court. 7. The petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8.
Legal Reasoning
Heard Mr. D.P. Dhal, learned Senior Counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. Page 4 of 12 9. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. Mr. Dhal, learned Senior Counsel for the petitioner has attacked the conviction recorded against the petitioner creating a doubt on the trustworthiness of the evidence of the victim (P.W.8). He has highlighted the following contradictions and vital issues to create a doubt in the prosecution story:- (i) There is an inordinate delay in registration of F.I.R., which has not been adequately explained by the prosecution. (ii) The evidence of prosecutrix (P.W.8) does not inspire confidence to be relied upon as the prosecution has been unsuccessful to fill up the lacuna by leading corroborative evidence. (iii) As per the prosecution, the accused has taken the victim from the crusher unit where she was working on the pretext that her father was not well. This conversation alleged to have been overheard by the co-worker in the crusher unit. The prosecution Page 5 of 12 has neither examined the co-worker in the crusher unit nor brought on record any documentary evidence to suggest that the victim indeed was working in the crusher on that day. (iv) The version of the prosecutrix (P.W.8) cannot also be believed because in the cross-examination she had stated that she was kept in a house for three days and she was raped by the accused once every day. Therefore, according to her, there was sexual intercourse with her by the petitioner three times. The story is completely unbelievable as it sounds improbable. (v) In the cross-examination, the prosecutrix (P.W.8) had also stated that the house in which she was kept was consisting of one room and there were three four persons staying in the house. However, the prosecution has not bothered to examine any of the witnesses with whom the victim was kept in the house by the petitioner. (vi) The prosecution’s attempt to explain the delay in F.I.R. has also lost force because the father of the prosecutrix stated that he had called the accused in the village to settle the dispute. Since Page 6 of 12 the petitioner did not cooperate, he had to file the F.I.R. However, none of the witnesses from the village were examined to substantiate that point. (vii) Insofar as the prosecution version regarding the age of the prosecutrix is concerned, the same too cannot be believed because P.W.4, the doctor who had examined the prosecutrix in his evidence had stated that ossification test report was not placed on record. The age of the prosecutrix is taken by the Court below to be 15-16 years only by believing the oral version of the parents of the prosecutrix namely P.Ws.6 & 7. In absence of any medical evidence, the version of the parents of the prosecutrix those who are illiterate rustic villagers cannot be trusted. (viii) The evidence of the prosecutrix if read with the evidence of the I.O. (P.W.9), the doctor (P.W.4) and the contents of the F.I.R. (Ext.4), the seizure list (Ext.2) and the doctors report (Ext.3) would reveal that the date of alleged occurrence as mentioned by the prosecution is inconsistent ,therefore, is not correct. Page 7 of 12 11. Apart from the aforementioned, Mr. Dhal, has also pointed out various shortcomings in the prosecution version besides pointing out contradictions in the testimony of the prosecutrix and the father of the prosecutrix (P.W.7), the mother being P.W.6 and the brother being P.W.3 of the prosecutrix. 12. Mr. Ragada, learned Additional Government Advocate for the State by justifying the concurrent finding of both the Courts below has submitted that the evidence of the prosecutrix (P.W.8) stands corroborated with the evidence of all the witnesses. Therefore, it cannot be discarded on the basis of minor contradictions as pointed out by the defence. Since the prosecutrix was minor, her consent for sexual intercourse was of no consequence as the same was not a valid consent. Therefore, the Courts below have rightly convicted the petitioner for the offence punishable under Section 376 I.P.C. 13. I have perused the evidence of the prosecutrix (P.W.8) and weighed the prosecutrix version vis-à-vis the evidence of P.Ws.1, 3, 6 and 7. I have also examined the doctor’s version to arrive at a conclusion that the victim was indeed subjected to sexual intercourse by the Page 8 of 12 petitioner. As per the prosecutrix version, it appears that she had given consent for sexual intercourse for three consecutive days when she was kept in a house. She had categorically stated in her statement that the petitioner had sexual intercourse with her when the other members staying in the house where she was kept used to leave for work. 14. I have also carefully examined the impugned order & judgment passed by the Courts below. The learned trial Court has meticulously dealt with each and every objection raised by the prosecution and returned appropriate findings on the basis of the evidence on record. The Appellate Court has also dealt with all the objections and confirmed the conviction and sentence recorded by the trial Court. Relevant would be to note paragraph-21 of the trial Court’s judgment, which reads as under:- <21. In view of my foregoing discussions the accused appears to have failed to substantiate his plea of defence through acceptable evidence. Therefore, there is no alternative than to believe the unshaken evidence of P.W.8 as true especially when it is settled in a number of authorities that normally, without any truth, parents of a minor girl would not descend to the level of sacrificing the future of their young daughter by resorting to the allegations of rape on her due to some political rivalry of their master as alleged by the defence in this case. The parents of P.W.8 have stated that P.W.8 was aged between 14 years and 15 years on the date of occurrence. The doctor has been her age to be between 15 years and 18 years. It is prescribed U/s 376 of Indian Penal Code that sexual intercourse Page 9 of 12 by an accused with a girl under 16 years of age with or without her consent constitutes the offence of rape. The defence has no where successed to sake the veracity of the evidences of P.Ws.6 and 7 and P.W.4 are regards the age of P.W.8 on the date of the occurrence. Therefore, it must be believed that on the date of occurrence P.W.8 was below 16 years in age. So the silence of P.W.8 while being raped by the accused during the 3 days period would not absolve the accused of the charge of rape. Hence, in view of the discussions stated above, I find no reason than to hold the accused guilty of the offence punishable U/s. 376 of the Indian Penal Code and accordingly I convict him there under U/s. 235(2) of Cr.P.C.= 15. In view of the aforementioned discussion, I am not inclined to interfere in the concurrent finding of both the Courts below regarding the conviction recorded against the petitioner. Therefore, the Criminal Revision Petition is dismissed insofar as the conviction recorded against the petitioner is concerned. At this stage, Mr. Dhal, learned Senior Counsel for the petitioner submits that the petitioner deserves leniency in the instant matter in view of the fact that the incident had taken place in the year 2004 and both the petitioner and the prosecutrix are from the same village and due to the peculiar facts of the present case and weak nature of evidence, the substantive sentence of three years R.I. awarded by the Court below deserves to be modified. In support to his submission Page 10 of 12 he emphasized the proviso to Section 376 of I.P.C (Before amendments), which 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 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.= Mr. Dhal submitted, in view of the proviso to Section 376 of I.P.C. the sentence imposed against the petitioner is liable to be modified on the special reasons to be recorded by the Courts below. 16. Mr. Dhal, further submitted that the petitioner has already undergone imprisonment for about one year without remission. The petitioner was taken into custody during trial on 05.06.2004 and was released on bail on 02.03.2005. Thereafter, on conviction he was again taken into custody on 04.05.2012 and was released on bail on 30.06.2012. Therefore, the petitioner has already undergone custody for more than one year. Pressing to service the proviso to Section 376 of I.P.C., he Page 11 of 12 submitted that the sentence imposed against the petitioner may be modified to that of the sentence the petitioner has already undergone. 17. The submission made by Mr. Dhal, learned Senior Counsel for the petitioner deserves merit. Accordingly, I am inclined to modify the sentence imposed by the Courts below against the petitioner in view of special circumstances as mentioned by the learned Senior Counsel. The sentence is accordingly modified and I reduce the sentence to the period of imprisonment the petitioner has already undergone and increase the fine of Rs.5,000/- as has been directed by the Appellate Court to that of Rs.10,000/-, in default, to suffer R.I. for one month. The fine amount to be realized shall be paid to the victim as per Section 357 of Cr.P.C being compensation.
Decision
18. Accordingly, the CRLREV is disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 16th July, 2024/Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2024 19:07:28 Page 12 of 12