Criminal Appeal No. 11 of 2008 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.172 OF 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) M. Damodar @ Danger ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioner : Mr. A.K. Biswal (Amicus Curiae) For the Opp. Party : Mr. B. K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.06.2024 :: Date of Judgment: 30.07.2024 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 07.02.2009 passed by the learned Sessions Judge, Ganjam, Berhampur in Criminal Appeal No.11 of 2008, whereby the order of conviction and sentence dated 20.11.2007 passed by the learned Assistant Sessions Judge-cum- C.J.M., Ganjam, Berhampur in S.C. Case No.59 of 2006
Legal Reasoning
(S.C. 310/2006 GDC) although has been confirmed but with certain modification. 2. The prosecution case in brief is that while the victim girl was going to attend her tuition, the accused/present petitioner always misbehaved with her and told her that he has developed love for her, but the victim girl did not give any importance to such advances of the petitioner. It is alleged that while the victim was passing by the road, the accused went on making advances to her and used to tell her that he would be marrying her because he loves her. In pretext of the marriage, the petitioner committed rape on her. It is further alleged that six months prior to the lodging of F.I.R., the petitioner threatened that he will kill her if she discloses the matter to anybody. Subsequently, the accused committed rape on her. When the victim girl came to know that the petitioner is a married person having two children, she distanced herself from the petitioner, for which, the petitioner threatened not only to kill the victim Page 2 of 12 but also her parents. Basing upon such allegation, the F.I.R. was lodged on 09.03.2006 before the Berhampur Town Mahila Police Station. 3. During the investigation, the victim girl and the accused were medically examined and the accused was arrested and forwarded to the court. After completion of investigation, the police submitted charge- sheet against the petitioner for the offences under Sections 376/506 of I.P.C. 4. The petitioner was charged for the offence punishable under Sections 376/506 of I.P.C. and was subjected to trial. The prosecution in order to bring home the charges had examined 12 witnesses in all to support of its case. Out of them, P.W.6, was the prosecutrix/informant in the present case whereas P.W.5 was the mother and P.W.9 was the father of the prosecutrix. P.Ws.2 & 3 had been examined by the prosecution in order to prove the fact that they had seen the accused at place of incident. P.W.1, the doctor, who was examined the victim (P.W.6) whereas P.W.8 was the doctor who had examined the accused had also supported the prosecution. The prosecution relied upon the aforementioned witnesses Page 3 of 12 being the vital to the prosecution case. P.W.10 was the Investigating Officer in this case. 5. After analyzing the entire evidence on record, the learned trial Court inter alia returned the following findings:- <10. The evidence of the victim girl (P.W.6) and her parents P.Ws.5 and 9 reveal that the victim girl used to remain alone in their house, while her parents used to sell vegetables near the city hospital. They used to return at about 10 P.M. There is no reliable evidence to show that any other family member was living in the house with the informant during the absence of her parents. The evidence of P.W.3 that he saw the accused entering inside the house of the informant situated at New-bus-stand road, a little distance away from O.R.T. Colony, near Gate Bazar, has not been shaken inspite of the fact that P.W.3 has been cross-examined at length. His further statement that he stayed there for 20 to 25 minutes at nearby tailoring shop and saw the accused coming out of the house of the informant, has also not been shaken. The said shop is at a distance of 30 to 40 cubits from the house of the informant. As per the statement of P.W.3, there was no shouting or raising of voice from the house of the informant. During the said stay of P.W.3 near the said tailoring shop, he could not know as to what happened inside the house at that time. The conduct of the accused as marked and deposed by P.W.3 shows that the accused went and came out of the said house as a known person. Although P.W.3 has admitted that he has been convicted in one rape case and has preferred appeal, he has denied to the suggestion that the present accused was one of the the said case. The said prosecution witness suggestion has not been supported by any oral or documentary evidence by the defence. Therefore, in the circumstances, there is nothing to prove that P.W.3 can in Page 4 of 12 in any way be turned as interested witness or had any axe to grind. Similarly the evidence of P.W.2 that he saw the accused entering inside the house of the accused on 1.3.06 at 10 A.M. while he (P.W.2) had gone to the nearby Aurvedic shop to purchase medicine has also not been shaken inspite of the fact that the said witness has been cross-examined at length by the defence. The identity of the accused has been well established as P.W.2 knew the accused since 10 to 12 years. P.W.2, P.W.3, the victim girl-P.W.6 and her parents P.Ws.5 and 9 have also identified the accused during trial. It has not been suggested to any of the said prosecution witnesses that they did not know the accused. P.W.2 has stated that the informant had complained before him regarding misbehavior of the accused in following and harassing her.= Having found the petitioner guilty for the offence under Section 376 of I.P.C, the learned trial Court sentenced the petitioner to undergo R.I. for seven years and pay a fine of Rs.12,000/-, in default, to undergo further R.I. for six months. 6. The judgment of conviction and sentence dated 20.11.2007 passed by the learned Assistant Sessions Judge-cum-C.J.M., Ganjam, Berhampur in S.C. Case No.59 of 2006 (S.C. 310/2006 GDC) was called in question by filing Criminal Appeal No.11 of 2008 before the Court of learned Sessions Judge, Ganjam, Berhampur by the petitioner. The learned Appellate Court vide its judgment and order dated 07.02.2009 has Page 5 of 12 confirmed the conviction, however, modified the sentence to that of seven years R.I. and fine of Rs.2,000/- in place of Rs.12,000/-, in default to further undergo R.I. for one month. 7. Having failed in his appeal to the Court of the learned Sessions Judge, Ganjam, Berhampur, the present petitioner has filed the instant Revision Petition assailing the judgment of conviction and order of sentence passed by the Courts below against him. 8.
Legal Reasoning
Heard Mr. A.K. Biswal, learned Amicus Curiae for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. I have gone through the prosecution evidence as well as the evidence of the defence and analyzed the judgments of the Courts below. The accused examined himself as a witness. It is found from the record that the statement of the prosecutrix is consistent and corroborates not only with the statement of her mother (P.W.5) and father (P.W.9) but also with the statements of the independent witnesses, namely P.Ws.2 and 3. Therefore, there is no scope of doubting the prosecution story as Page 6 of 12 emanating from the record on the basis of the evidence of these witnesses. 10. In the present case, the evidence of P.W.1 is much important. P.W.1 was the Assistant Professor of Forensic Medicine and Toxicology of M.K.C.G. Medical College, Berhampur. He examined the victim (P.W.6) on 10.03.2006 on police requisition. She had given her report which was exhibited as Ext.1. The medical evidence reveals that there was recent sexual intercourse with the victim. The doctor also opined that the age of the victim was 14 years and below 15 years. The X-ray plates M.O.I to M.O.VII of the victim girl taken on the date have also been marked by the doctor (P.W.1). P.W.8 was also a doctor who had examined the accused and opined that the accused was capable of having sexual intercourse. Taking into consideration the sustained and impeccable evidence of the prosecution witnesses, the learned trial Court has convicted the petitioner. 11. Mr. Biswal, learned Amicus Curiae appearing for the petitioner has vehemently contended that the findings of the Courts below regarding the age of the victim is completely doubtful. He contended that this is a case Page 7 of 12 of consensual sex. The evidence of P.W.6 although gives a hint that the sexual intercourse had taken place with her consent but she being a minor, her consent is not valid in the eye of law. In order to prove that the victim was a minor at the time of incident, the prosecution strongly relied upon the testimony of P.W.1. P.W.1, in her testimony, has stated that she had examined the physical features including the sexual characteristics, genitals and had done dental and radiological examination of the victim to come to the clear cut finding that the victim girl was above 14 years and below 15 years of age. Therefore, relying upon the medical evidence, the Courts below have concluded that the victim was a minor. 12. Mr. Biswal, has taken me to the testimony of P.Ws.5 and 9, the parents of the victim to create a doubt regarding the age of the victim. The Courts below have meticulously dealt with the oral testimony of the P.Ws.5 and 9. Since superior evidence like the medical evidence which has come on record to establish that the victim was a minor at the time of incident, the other oral evidences of the parents regarding the age of the victim faints. It is evident from the record that the victim girl was minor at the time of incident and even though she might have given consent for Page 8 of 12 sexual intercourse, her consent has no legal sanctity. Therefore, the petitioner is liable for the offence under Section 376 of I.P.C. 13. The learned Appellate Court has also taken into consideration the plea of defence as has been taken by Mr. Biswal, in his argument at this stage. The learned Appellate Court has inter alia returned the following findings:- fear or <Section 90 of the Indian Penal Code says that if the injury or consent has been given under misconception of fact, such consent obtained cannot be construed to be valid consent. In the present case as I have already mentioned above, from the evidence of P.W.6 and on going through the F.I.R., Ext.4, it appears that right from beginning the accused was not honest and kept on promising that he will marry P.W.6 and therefore, even if P.W.6 had consent to the sexual act, it cannot be said that it was a consent. Because she was under a misconception of fact that the accused intended to marry her. What is voluntary consent or not, a voluntary consent depends on the facts of each case. In this case, taking the age of the girl, her social and family environment status in the society and attending circumstances, it can safely be held that P.W.6, who was a minor below the age of 16 years was ravished by the appellant.= 14. I find no reason to disagree with the findings recorded by the trial Court as well as the Appellate Court regarding the commission of offence by the accused-petitioner. Accordingly, I upheld the conviction recorded Page 9 of 12 against the petitioner of the offence punishable under Section 376 of I.P.C. 15. At this stage, Mr. Biswal, learned Amicus Curiae for the petitioner submits that the petitioner had already undergone custody for about five years. The petitioner was arrested on 09.03.2006 and was only admitted to bail on 22.03.2011. In that view of the matter, he submits that the incident had taken place in the year 2006 and at that point of time, the petitioner was a young man of 22 years. By now, the petitioner has already settled in his life. Even the victim has also settled in her life. Therefore, at this belated stage, sending the petitioner-convict to undergo further custody would be harsh. Therefore, he seeks leniency. 16. Regard being had to the fact that the incident had taken place in the year 2006 and the petitioner was very young at that point of time and more than about 18 years had already been lapsed in between, the petitioner deserves a lenient view in so far as penalty is concerned. Therefore, he has submitted that under the provision of Section 376 of I.P.C. (before amendment) by assigning adequate and special reason, this Court may reduce the sentence for a term less than seven years. Mr. Page 10 of 12 Biswal relied upon the un-amended provision of 376 I.P.C, 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. Biswal submits that under the proviso to Section 376 I.P.C., this Court while assigning the special reasons as mentioned above can reduce the sentence to below 7 years. 17. Regard being had to the reasons stated above, the sentence of seven years R.I. awarded by the Court below is modified to that of the sentence of five years that the petitioner has already undergone in the custody. However, in so far as the fine amount is concerned, I feel it appropriate to restore the fine amount imposed by the learned trial Court. Accordingly, the petitioner is liable to pay fine of Rs.12,000/-, in default to pay the Page 11 of 12 same, he shall undergo S.I. of two months. The fine amount to be deposited by the petitioner shall be disbursed to the victim in accordance with Section 357 Cr.P.C. as compensation. 18. The CRLREV is according disposed of in the above terms. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Swarna Prava Dash, Senior Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2024 10:31:54 Page 12 of 12