The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.27 of 2020 From judgment and order dated 07.01.2020 passed by the Special Judge (POCSO) -cum- Second Addl. Sessions Judge, Berhampur, Ganjam in G.R. Case No.77 of 2014. ---------------------------- Siba Sahoo ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Manoranjan Padhi Advocate For Respondent: - Mr. Manoranjan Mishra Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 02.08.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Siba Sahoo faced the trial in the Court of learned Special Judge (POCSO) -cum- Second Addl. Sessions Judge, Berhampur, Ganjam in G.R. Case No.77 of 2014 for commission of offence under section 376(2)(i) of the Indian Penal Code (hereinafter ‘I.P.C.’) and section 6 of the Protection // 2 // of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO Act’) on the accusation that on 29.08.2014 at about 7.30 p.m. at Puruna Bazar Street, Bhanjanagar, he committed rape on the victim, who was under sixteen years of age and also committed aggravated penetrative sexual assault on the victim. Learned trial Court vide judgment and order dated 07.01.2020 found the appellant guilty of both the charges and sentenced him to undergo rigorous imprisonment for a period of fifteen years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo rigorous imprisonment for a further period of six months for the offence under section 376(2)(i) of the I.P.C. No separate sentence was awarded for the offence under section 6 of the POCSO Act in the view of section 42 of the said Act. One Simanchala Behera (P.W.2), the father of the
Legal Reasoning
victim (P.W.1) lodged the first information report (hereinafter ‘F.I.R.’) on 30.08.2014 before the I.I.C., Bhanjanagar Police Station stating therein that on 29.08.2014, the victim, who is his minor daughter and aged about six years, had been to one shop situated at Puruna Bazar Sahi, which was styled as Jaga Balia shop, for purchasing milk and the appellant called the victim on the pretext of giving her chocolates and committed rape on her Page 2 of 20 // 3 // and also assaulted her. The victim came back home crying and narrated the incident before her family members. On receipt of such F.I.R., Bhanjanagar P.S. Case No. 237 dated 30.08.2014 was registered under section 376 of the I.P.C. and section 4 of the POCSO Act. The I.I.C., Bhanjanagar Police Station directed Shradhanjali Subudhi (P.W.16), Sub- Inspector of Police attached to Bhanjanagar police station to take up investigation of the case and accordingly, P.W.16 examined the informant, recorded the statements of witnesses and she also seized the wearing apparels of the victim, which she was wearing at the time of occurrence being produced by the informant as per seizure list vide Ext.3. The victim was sent for medical examination to S.D. Hospital, Bhanjanagar on police requisition. The I.O. examined the grandmother of the victim, prepared the spot map, arrested the appellant and sent him to S.D. Hospital, Bhanjanagar for his medical examination. She also seized the biological samples of the appellant and the victim being produced by the escorting police constables, seized the wearing apparels of the appellant as per seizure list vide Ext.7. The statement of the victim was recorded under section 164 of Cr.P.C. on the prayer of the I.O. She also received the medical examination reports and the exhibits were forwarded to the Page 3 of 20 // 4 // R.F.S.L., Berhampur for chemical analysis and the chemical examination report (Ext.12) was received and on completion of the investigation, charge sheet was submitted under section 376(2)(i) of the I.P.C. and section 6 of the POCSO Act. Witnesses & Exhibits: During course of the trial, in order to prove its case, the prosecution examined as many as seventeen witnesses. P.W.1 is the victim. She supported the prosecution case and stated about commission of rape on her by the appellant. P.W.2 Simanchala Behera is the father of the victim and he is also the informant in this case who lodged the F.I.R. vide Ext.2. He stated about the disclosure made by the victim about the commission of sexual assault on her by the appellant. P.W.3 Anitarani Behera is the mother of the victim and she supported the prosecution case and stated to have noticed white stains over her panty and she also stated about disclosure made by the victim about the occurrence. P.W.4 Dr. Resmarani Tripathy was working as Asst. Surgeon, Sub-Divisional Hospital, Bhanjanagar. She medically examined the victim on police requisition and she proved her report vide Ext.4/1. Page 4 of 20 // 5 // P.W.5 is the grandmother of the victim (P.W.1) who supported the prosecution case and stated about the disclosure made by the victim about commission of rape on her by the appellant. P.W.6 Susil Kumar Behera is the brother-in-law of the informant and stated about the disclosure made by the victim regarding commission of rape on her by the appellant. The evidences of P.W.7 to P.W.12 are no way relevant for the case. P.W.13 Sibaram Das was posted as an Assistant Sub- Inspector of Police at the Bhanjanagar Police Station. He was a witness to seizure of blue colour panty of the victim which was seized by the I.O. vide seizure list Ext.3 and one Moser Baer DVD which was seized vide seizure list Ext.5. P.W.14 Hrushikesha Badatia was also the Assistant Sub-Inspector of Police posted at the Bhanjanagar Police Station who stated about the seizure of biological samples of the appellant and the victim as per seizure list Ext.6 and also the wearing apparels of the appellant vide seizure list Ext.7. P.W.15 Brundaban Chandan Gouda was posted as O & G Specialist at Sub-Divisional Hospital, Bhanjanagar. He examined the appellant on police requisition and opined that Page 5 of 20 // 6 // appellant was capable of having sexual intercourse. He proved his report Ext.8/2. P.W.16 Shradhanjali Subudhi was posted as the Sub- Inspector of Police at the Bhanjanagar Police Station and she is the I.O. of the case. P.W.17 Saraga Kumar Satapathy was the Headmaster of St. Xavier’s High School, Bhanjanagar who stated about the seizure of school admission register by the I.O. wherein the date of birth of the victim was mentioned to be 14.11.2008. The prosecution exhibited thirteen numbers of documents. Ext.1 is the statement of the victim recorded under section 164 of the Cr.P.C., Ext.2 is the plain paper F.I.R., Ext.3 is the seizure list, Ext.4/1 is the medical examination report of the victim, Ext.5, Ext.6 and Ext.7 are the seizure lists, Ext.8 is the consent memo, Ext.9 is the spot map, Ext.10 is the command certificate, Ext.11 is the forwarding letter of learned S.D.J.M., Berhampur, Ext.12 is the chemical examination report and Ext.13 is the school admission register. The defence plea of the appellant is one of complete denial. Page 6 of 20 // 7 // Finding of the Trial Court: The learned trial Court, after assessing the oral and documentary evidence on record, has been pleased to hold that the victim was below 16 years of age at the time of occurrence and hence, she was a ‘child’ within the meaning of section 2(d) of the POCSO Act. Learned trial Court further held that the evidence of the victim relating to rape being committed on her is getting support from the prosecution witnesses and particularly, her family members and it could not be assailed in any manner by the appellant. Learned trial Court further held that the prosecution has satisfactorily established its case that the appellant committed rape on P.W.1 (victim) and found him guilty under section 376(2)(i) of the I.P.C. and section 6 of the POCSO Act. Contentions of Parties:
Legal Reasoning
Mr. Manoranjan Padhi, learned counsel for the appellant contended that it is the prosecution case that the victim had been to the tea stall of one Jaga to bring milk when and the appellant approached her to give chocolates and told her to accompany him and forcibly took her to his shop and committed ‘kharap kama’ with her but Jaga has not been examined by the prosecution. It is further argued that though Page 7 of 20 // 8 // the victim came to her house and disclosed before her family members about the occurrence and also being examined as P.W.1 stated that the appellant removed her panty and committed wrong with her (SE MO SAHITA KHARAPA KAMA KALA), unless it is brought on record by clinching evidence what was the actual overt act committed on with her by the appellant, it is very difficult to come to the conclusion that there has been either ‘rape’ or ‘aggravated penetrative sexual assault’ on the victim. It is further argued that though the panty of the victim was seized during course of investigation and it was sent for chemical examination but the chemical examination report (Ext.12) indicates that the panty did not contain stain of either blood or semen. It is further argued that the mother of the victim stated that there were white stains over the panty of the victim; however, had that been so then the panty would have contained the stains of blood or semen. Therefore, it falsifies that there was any kind of white stain on the panty of the victim. Learned counsel further submitted that minimum sentence prescribed for the offence under section 376(2)(i) of the Indian Penal Code is ten years and in view of the poverty, poor socio- economic condition and undeserved adversity in the life of the appellant, when the appellant has preferred this Jail Criminal Page 8 of 20 // 9 // Appeal and when the nature of the overt act committed by the appellant with the victim is not clear, the sentence should be reduced from fifteen years to minimum sentence of ten years, especially having sympathetic consideration for the fact that the appellant is in judicial custody since 30.08.2014, if at all this Court upholds the conviction of the appellant. Mr. Manoranjan Mishra, learned counsel for the State on the other hand supported the impugned judgment and submitted that not only the evidence of the victim is clear, cogent and trustworthy but also from the evidence of the Headmaster of the School, who proved the admission register, it is established that the victim was six years of age at the time of occurrence. The victim narrated the whole incident before her family members immediately after the occurrence and her parents and grandmother have also stated about such disclosure. Learned counsel further argued that there was no earthly reason for the victim, a girl aged about six to seven years, to implicate the appellant falsely in a case of this nature and her disclosure immediately after the occurrence is admissible as res gestae under section 6 of the Evidence Act. It is further argued that the doctor (P.W.4), who examined the victim on the next day of occurrence, found that there was some white Page 9 of 20 // 10 // discharge present on her vagina and the general appearance of hymeneal opening was congested, inflamed and reddish and it corroborates the evidence of the victim. Learned counsel for the State further submitted that non-examination of the shop keeper Jaga cannot be a factor to disbelieve the evidence of the victim in a case of this nature. It is argued that the learned trial Court is empowered under section 376(2)(i) of the I.P.C. to impose punishment for life and therefore, it cannot be said that the Court has committed any illegality in sentencing the appellant to R.I. for fifteen years keeping in view the age of the victim and the nature and gravity of the accusation and therefore, the appeal being devoid of merit should be dismissed. Age of the Victim: Adverting to the contentions of the learned counsel for the respective parties, let me first analyze the evidence on record relating to the age of the victim. It appears from the evidence of the victim that she stated her age to be eight years when she deposed on 06.06.2016 and further stated that she was a student of Standard-III at the time of deposition and the occurrence took place when she was studying in Standard-II. The learned trial Court has assessed the age of the victim to be Page 10 of 20 // 11 // eight years and accordingly, reflected the same in the deposition sheet. P.W.17, the Headmaster of the school, where the victim was prosecuting her studies, proved the school admission register (Ext.13) wherein the date of birth of the victim was mentioned to be 14.11.2008. He has denied the suggestion made by the learned defence counsel that the date of birth entry has been made in the school admission register without any basis. In view of the settled position of law, the school admission register entry is admissible under section 35 of the Evidence Act. The defence has not brought any impeccable evidence of reliable persons and contemporaneous documents like the date of birth register to discard the entry in the school register. Since the learned defence counsel has not challenged the age of the victim when she was examined in Court as P.W.1 and in view of the entry of date of birth of the victim in the school admission register, she was aged about six years at the time of occurrence, I am of the humble view that the finding of the learned trial Court that the prosecutrix was less than sixteen years of age, when she was made a victim of the lust of the appellant, is quite justified. Page 11 of 20 // 12 // Evidence of the victim whether acceptable: The victim, being examined as P.W.1, was put some questions by the learned trial Court to assess her level of understanding. The learned trial Court recorded the questions and also the answers given by the victim to those questions and found that rational answers have been given by the victim to all the questions and therefore, she was held to be a competent witness to depose in the case. The victim (P.W.1) stated that she was sent by her mother (P.W.3) to bring milk from the tea stall of one Jaga and she met an uncle who was standing at the said shop and was purchasing something. He gave her two chocolates and told her to accompany him and when she denied, the appellant forcibly took her to the shop and by removing her panty committed wrong with her (SE MO SAHITA KHARAPA KAMA KALA). Then the appellant gave slaps on her face for which she cried. The victim further stated that she returned her home crying and since the appellant threatened her not to disclose the incident before her mother, initially she did not tell her anything. However, subsequently, she being asked disclosed the entire incident to her mother. In the cross-examination, the victim has stated that she had gone to Jaga tea stall several times prior to the Page 12 of 20 // 13 // occurrence and that tea stall is near to her house. She further stated that except the appellant, no other person was present at Jaga tea stall. She also identified that Siba uncle (appellant) in Court. Nothing has been elicited in her cross-examination to disbelieve the evidence of this child witness. Law is well settled that evidence of a child witness must be evaluated very carefully and scrupulously, as a child may be swayed away by what others tell her and can fall an easy prey to tutoring. Evidence of a child witness is acceptable if Court finds her competent after careful scrutiny of her evidence and if that is found to be reliable and of good quality. The position of law regarding admissibility of evidence of child witnesses was precisely reiterated by this Court recently in the case of Dilu Jojo –Vrs.- State of Odisha reported in (2023) Supreme Court Cases OnLine Ori 4474, wherein it was held as follows: “Section 118 of the Evidence Act states that a child is a competent witness provided that he understands the questions put to him and is in a position to give rational answers to such questions. It is the duty of the Court while assessing the evidence of a child witness to see whether the child understands the duty of speaking the truth. The Court should make Page 13 of 20 // 14 // necessary examination of the child witness by putting a few questions in order to find out whether the witness is intelligent enough to understand what he had seen and afterwards to inform the Court thereof and also give his opinion that why it thinks that the child is a competent witness. The evidence of a child witness should be scanned carefully and if no flaws or infirmities are found therein then there is no impediment in accepting his evidence.” In the case in hand, the learned trial Court, after posing a few questions and recording answers of the victim thereto, has arrived at a conclusion that the child is able to give rational answers to all the questions and declared her as a competent witness, before adverting to record of her evidence. The testimony of the victim has remained unshaken and no evidence has been brought out to suggest that she propagated falsehood to foist a false case on the appellant. The evidence of victim’s mother (P.W.3) indicates that the victim had gone to Jaga tea stall for purchasing milk and the appellant offered her chocolates, took her inside his shop and removed her panty. There were white stains over the panty of her daughter and the appellant had threatened the victim not to disclose anything against him before anybody. She further stated Page 14 of 20 // 15 // that after the victim came home, she was in a state of panic being threatened by the appellant. She stated to have noticed white stains over the panty and on being asked, the victim disclosed about the occurrence. Therefore, the evidence of the victim gets corroboration from the evidence of P.W.3. P.W.5, the grandmother of the victim stated that the victim returned home crying and on being asked, she told that the appellant did ‘KHARAP KAMA’ with her and she narrated the incident before her in details. She disclosed that the appellant took her inside the room, took off her panty despite her protest and he also took off his own pant, made her lie on the floor and he slept over her. The victim further told her that when she did not put off her panty, the appellant physically assaulted her. Therefore, not only before P.W.3 but also before P.W.5 there has been disclosure as to what has been done by the appellant with the victim. P.W.2, the father of the victim and P.W.6, the brother-in-law of P.W.2 have also stated about the disclosure made by the victim (P.W.1) implicating the appellant in her sexual assault. It is correct that the victim has simply stated that the appellant did ‘KHARAP KAMA’ with her by removing her panty and not stated in details what was the ‘KHARAP KAMA’ but in Page 15 of 20 // 16 // view of the evidence of her mother (P.W.3) and grandmother (P.W.5) before whom she disclosed about the occurrence in details, it cannot be said that the appellant had not committed any overt act with her which would attract either the ingredients of the offence under section 376(2)(i) of the I.P.C. or section 6 of the POCSO Act. The doctor (P.W.4) examined the victim on the very next day of occurrence on police requisition and she found that there was white discharge present on her vagina and general appearance of hymeneal opening was congested, inflamed and reddish. Of course P.W.4 found no sign of injury either on the body or the private part of the victim. Therefore, the evidence of the doctor (P.W.4) strengthens the prosecution case. The appellant was also medically examined by the doctor (P.W.15), who also opined that the appellant was capable of having sexual intercourse. The chemical examination report, marked as Ext.12, no doubt indicates that the panty of the victim was having no blood or no semen stains, however, small patches of human semen were found on the jeans pant of the appellant, which was seized during investigation. Page 16 of 20 // 17 // In the statement recorded under section 313 of the Cr.P.C., several questions have been put to the appellant, but except telling that he has been falsely implicated, no material evidence has been adduced on his behalf as to why he would be falsely implicated in a case of this nature by a young girl aged about six years. The evidence of the victim (P.W.1), her parents (P.W.2 & P.W.3), grandmother (P.W.5) and the doctor (P.W.4) clearly prove the ingredients of the offence under section 376(2)(i) of the I.P.C. and section 6 of the POCSO Act against the appellant. Conclusion: In view of the age of the victim at the time of occurrence which was six years and having regard to the definition of ‘aggravated penetrative sexual assault’ under section 5(m) of the POCSO Act which states that commission of ‘penetrative sexual assault’ as defined under section 3 of the POCSO Act on a child below twelve years would attract the offence, the learned trial Court has rightly convicted the appellant under section 6 of the POCSO Act so Page 17 of 20 // 18 // also under section 376(2)(i) of the I.P.C.. It appears that the minimum sentence provided for the offence under section 376(2)(i) of the I.P.C. is ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and he shall also be liable to fine. In the case of Sunil Damodar Gaikwad -Vrs.- State of Maharashtra reported in (2014) 1 Supreme Court Cases 129 while holding that the Court must not only look at the crime but also the offender and it must give due consideration to the circumstances of the offender, the Hon’ble Supreme Court has further held that poverty and socio-economic condition can be considered as some of the mitigating factors in addition to those indicated in the cases of Bachhan Singh -Vrs.- State of Punjab reported in (1980) 2 Supreme Court Cases 684 and Machhi Singh & Others -Vrs.- State of Punjab reported in (1983) 3 Supreme Court Cases 470. Also, in the case of Rabi S/O Ashok Ghumare -Vrs.- State of Maharashtra reported in (2019) 9 Supreme Court Cases 622, the Hon’ble Apex Court has Page 18 of 20 // 19 // held that socio-economic condition of the appellant as a person below the poverty line, can also be considered as one of the mitigating factors while weighing the aggravating and mitigating factors. There is no dispute that the appellant in this case is a below poverty line person which is manifested from the fact that he has preferred this Jail Criminal Appeal through the Prisoner Welfare Officer, Circle Jail, Berhampur on account of his financial difficulty. The case record does not indicate any criminal antecedent against the appellant. Considering the poor financial condition of the appellant and in view of the aforesaid precedents of the Hon’ble Supreme Court, the passage of time since the date of occurrence, the period of detention in judicial custody which is about nine years by now and the young age of the appellant at the time of occurrence, I reduce the sentence awarded to appellant from rigorous imprisonment for fifteen years to rigorous imprisonment for ten years, which is the minimum sentence prescribed for the offence under section 376(2)(i) of the Indian Penal Code. No separate sentence is required to be passed under section 6 of the POCSO Act in Page 19 of 20 // 20 // view of section 42 of the said Act, as rightly done by the learned trial Court. With the above modification of sentence, the JCRLA stands dismissed. Trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to Mr. Manoranjan Padhi, learned counsel for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to his professional fees, which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Manoranjan Mishra, learned Additional Standing Counsel. S.K. Sahoo, J. …………………………… Orissa High Court, Cuttack The 2nd August 2023/Amit AMIT KUMAR MOHANTY Digitally signed by AMIT KUMAR MOHANTY Date: 2023.08.10 18:14:16 +05'30' Page 20 of 20