The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.276 of 2021 (From the judgment of conviction and order of sentence dated 22.02.2021 passed by the learned Additional Sessions Judge- cum- Special Judge, Balasore in Special Case No.428 of 2017) Bansidhar Moharana …. Appellant -versus- State of Orissa …. Respondent Advocates appeared in the case: For Appellant : Sk. Zafarulla, Adv. -versus- For Respondent : Mr. D.K. Mishra, AGA CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-03.08.2023 DATE OF JUDGMENT:-19.10.2023 Dr. S.K. Panigrahi, J. 1. By the impugned judgment and order dated 22.02.2021 passed by the learned Additional Sessions Judge-cum- Special Judge, Balasore in Special Case No.428 of 2017, the Appellant Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 1 (Bansidhar Moharana) has been convicted for commission of offences under Sections 376(2) (i) of the I.P.C. read with Section 6 of the POCSO Act. He has been sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year for the offence under Section 376(2)(i) of the I.P.C. It appears that no separate sentence has been passed for the offence under Section 6 of the POCSO Act. I. CASE OF THE PROSECUTION: 2. Bereft of unnecessary details, the case of the prosecution is that the accused was residing in the house of one Jhadeswar Pal (PW 6). The informant, his wife and the victim were also residing on rent in the house of said Jhadeswar Pal. After some days, the informant and his family members including the victim left the house of Jhadeswar Pal and resided in another house on rent belonging to one Kanak Biswal of Banipokhari Chhack. It is commonly known to the residents of the locality by then that the accused was a transgender who was residing on rent in the house of Jhadeswar Pal and was earning his livelihood by way of roaming and begging on the National Highway. The accused used to wear ladies garments and cosmetics. He was also commonly known as ‘NANI’ in the locality. On 03.11.2017 due to illness, the victim Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 2 was taking rest at her house. At about 8 am, the accused came to the mother of the victim as usual and took the victim with him towards his rented house assuring the mother of the victim that he will bath the victim and will feed her. After some time, the accused dropped the victim before her mother and hurriedly left the place. The victim complained of pain at her private part. The mother of the victim inspected and could be able to notice that the private part of the victim was injured with redness. The victim was under severe pain. The mother of the victim narrated the aforesaid incident to the informant, her husband. The victim stated that the accused inserted his private part into the private part of the victim. Thereafter, the father and mother of the victim took the victim to Seemanta Hospital where the victim was initially treated and the informant could be able to know that since the accused committed rape on the victim, the victim sustained pain. Thereafter, the accused absconded from the locality. On 21.11.2017, the informant could be able to know that the accused had returned to his rented house and was being detained by the local people. In presence of the informant, the accused disclosed his identity as Bansidhar Moharana, Son of Bholanath Moharana, of village Aruha, PO:Gandastapur, P.S.- Soro, Dist: Balasore and stated that he has committed rape on the victim. Alleging the aforesaid Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 3 facts, the informant lodged a written report before the I.I.C. of Jaleswar P.S. The I.I.C. of Jaleswar P.S. treated the written report as FIR, registered the case and directed P.W.15, the S.I. of Police, Jaleswar P.S. to investigate the case. 3. During course of investigation, the Investigating Officer (P.W.15) examined the informant, the mother of the victim and the victim, seized the birth certificate of the victim and other documents relating to date of birth of the victim, and prepared seizure list. The Investigating Officer also visited the spot and prepared the spot map under Ext.14, apprehended the accused, seized the wearing clothes of the accused and prepared seizure list under Ext.3. The Investigating Officer also seized the wearing clothes of the victim in presence of the witnesses. Thereafter, the Investigating Officer sent the victim to G.K. Bhattar Hospital, Jaleswar for her medical examination under medical requisition. The Investigating Officer further seized the biological samples of the accused during the medical examination of the accused. At the instance of the Investigating Officer, the statement of the victim and her mother were recorded under Section 164 of the Cr.P.C. by the court. The Investigating Officer also examined the doctor of Seemanta Hospital who initially treated the victim. On completion of investigation, the Investigating Officer Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 4 submitted charge sheet against the accused/ Appellant under Section 376(2)(i) of the I.P.C. and Section 6 of the POCSO Act. 4. The accused faced the trial and took the plea of denial stating during the course of recording of the statement of the accused under Section 313 of the Cr.P.C. that the informant had taken a sum of Rs.20,000/- from him promising thereby to repay the same within four weeks. The informant did not return the same till one year and avoided for repayment. Being enraged by his repeated demands, the informant falsely lodged the present case against him citing his daughter as the victim. 5. On assessing the evidence on records and on analyzing the materials available on records, the learned Additional Sessions Judge-cum- Special Judge, Balasore came to the conclusion that the accused/ Appellant is the real culprit in this case. The trial court also observed that the prosecution has successfully established all the ingredients of the offences under Section 376(2)(i) of the I.P.C. and Section 6 of the POCSO Act and convicted and sentenced the Appellant thereunder. II. APPELLANT’S SUBMISSIONS:
Legal Reasoning
6. Learned counsel for the Appellant submitted as follows: (a) Before lodging of the F.I.R. on 21.11.2017, the informant (P.W.12) has stated that he has lodged FIR before the police on the very next day which appears to be totally Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 5 false as the Investigating Officer (P.W.15) has ruled out the above version by saying that for the first time FIR was lodged on 21.11.2017. Furthermore, P.Ws.12 and 13 have stated that before lodging of the FIR i.e. on 20.11.2017 when they detained the Appellant in the house of the P.W.6, he confessed before them that he had only inserted finger in the private part of the victim. However, the victim in her deposition has stated that the Appellant has committed rape on her which is completely inconsistent story narrated by the victim. Law is well settled that in a case of rape, victim’s evidence is same as the evidence of the injured person and conviction can be sustained solely on the testimony of the victim provided it inspires confidence and reliable. In the case in hand, except the oral testimony of the victim, there is no other evidence to corroborate the testimony. Even in the evidence of the father of the victim and P.W.13 there is inconsistent. So also the evidence of the doctor completely rules out the testimony of the victim. (b) The informant (P.W.12) stated that on the very same day evening he came to know regarding the sexual assault on the victim (P.W.1) and he took her to Hospital. But, the informant remained silent for 18 days without lodging FIR or report before the police till the detention of the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 6 Appellant by the informant and others on 20.112017. It is a normal human behavior that the father of the victim cannot wait for 18 days till the return of the victim without reporting the matter before the police. (c) The evidence of P.Ws.12 and 13 who have stated that on 20.11.2017 they came to know regarding the detention of the Appellant in the house of Jhadeswar Pal (P.W.6), but the evidence of P.W.6 completely silent about the aforesaid fact. So, in absence of aforesaid fact and exaggerated version narrated by the father of the victim (P.W.12), the evidence of the victim cannot be relied upon. (d) On perusal of the evidence of P.W.1 it appears that in her evidence she has not specifically identified the Appellant as accused in the case. Her deposition is against one Nani and whether the Appellant is the said Nani has not been disclosed by the victim. Similarly, the mother of the victim has also not identified the Appellant in the dock. (e) During the course of trial, the doctor (P.W.5) who initially treated the victim stated that he treated the victim on 04.11.2017 and prescribed some medicines. But, neither OPD register nor any document has been exhibited to prove the same and even he stated that he was not examined by the police in this case and for the first time he was deposing in the court. Further, the doctor who Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 7 examined the victim on police requisition has been examined as P.W.7. He stated that he did not find any sign and symptom of recent sexual assault. So in absence of any corroborative medical evidence, the trial court should not have relied on the uncorroborated testimony of the victim and her parents. Therefore, the order of conviction is liable to be set aside. (f) The alternate submission of the learned counsel for the Appellant is that at the time of occurrence minimum sentence prescribed is 10 years under section 376(2) (i) of the I.P.C. But the trial court has imposed higher side of sentence. III. RESPONDENT/ STATE’S SUBMISSIONS: 7. In order to prove its case, the prosecution examined 15 witnesses so also relied upon the documents marked as Exts.1 to 17 and material objects marked as M.Os.I to XI. P.W.1 is the victim, P.W. 2 is the mother of the victim, P.Ws.3, 4, 8, 9 and 11 are the witnesses to the seizure, P.W.5 is the doctor who examined the victim initially, P.Ws.6 and 13 are the two independent witnesses, P.W.7 is the doctor who examined the victim on police requisition, P.W.10 is the doctor who examined the accused on police requisition, P.W.12 is the informant as well as the father of the victim, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 8 P.W.14 is the S.I. of Police who recorded the statement of the victim and P.W.15 is the Investigating Officer of this case. 8. Prosecution exhibited 17 documents and seized articles were produced before this Court which were marked as Material Objects MO-I to MO-XI. After completion of evidence from the side of prosecution, the statement of the accused under Section 313 of the Cr.P.C. was recorded. The accused examined himself as D.W.1. But, neither any document has been marked nor any material was produced by the accused as material object in this case. 9. Learned counsel for the State submits that the trial court has considered all the aspects relevant for the purpose of conviction of the Appellant. There is no cogent reason to interfere with the same. He, therefore, urges that this Court may not disturb the finding of the trial court in any manner and may uphold the conviction and sentence meted out by the learned Additional Sessions Judge-cum- Special Judge, Balasore. IV. COURT’S ANALYSIS AND REASONING: 10. It may be stated here that arguments of the learned counsel for the Appellant are two folds i.e. (i) for setting aside the impugned judgment of conviction and order of sentence passed by the learned Additional Sessions Judge-cum- Special Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 9 Judge, Balasore and/or (ii) for reduction of the quantum of sentence imposed on the Appellant. 11. Having heard the learned counsel for the parties and on examination of the evidence on record, it is seen that the P.W.12, the informant has stated that ‘NANI’, the accused kept the victim for two hours. P.W.12 further stated that when he asked the victim, the victim stated him that the accused took her with him inserted his private part into her private part, then as the victim sustained bleeding injury on her private part, the accused wiped the blood with the help of cloth, then the accused bathed the victim, applied powder, cream and cosmetics on her person and left at her house by providing her fried pulses and stated her not to disclose the fact to anybody otherwise her mother will die. 12. P.W.2, the mother of the victim, in her statement recorded under Section 164 of the Cr.P.C. narrated that on 03.11.2017 at about 8.30 am, NANI, the accused came to her house, stated that she has paid a visit to her, enquired about breakfast of the victim. Since P.W.2 denied, the accused took the victim with him assuring that he would bath and give breakfast of the victim and after some time, the accused dropped the victim and left the place hurriedly. Thereafter, the victim complained pain on her private part. P.W.2 noticed bleeding injury and redness on the private part of the victim. The victim was Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 10 suffering from pain on her private part. P.W.2 narrated the incident to her husband and when the victim was questioned, the victim also stated to P.W.2 that NANI rubbed his private part in to the private part of the victim forcibly, injected her, as a result of which, the victim sustained head-reeling. During the course of evidence, P.W.2, the mother of the victim stated exactly the same thing, but stated the timing as 20 to 25 minutes from the time of taking of the victim by the accused with him and dropping the victim before her. P.W.2 further stated that the victim stated her that Nani is not a good man and Nani told her that she i.e. P.W. 2 will die if she (victim) will disclose the truth before P.W.2. It was also stated by P.W.2 that Nani gave her medicines to eat and poured water and rubbed some balm near her ear and cleared some blood on the ground. P.W.2 further stated that when she saw the private part of the victim, she found reddish swelling injury thereon and the victim was running with pain even while urinating. 13. In her statement recorded under Section 164 of the Cr.P.C. the victim stated that on that day NANI took her to his house saying that he will provide balloon and biscuit. Thereafter, the accused unclothed the victim, put an injection resulting head- reeling and darkness in eyes of the victim. Thereafter, the accused rubbed his private part in the private part of the victim resulting bleeding thereon. The accused wiped out the blood Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 11 through his ’gantha’ (a mattress made up of cloth), bathed the victim, applied cream and powder on the person of the victim and persuaded the victim not to tell this incident to anybody, otherwise, the mother of the victim would die. There is no contradiction in the statement of the victim recorded under Section 164 of the Cr.P.C. and her examination-in-chief as well her cross-examination. 14. Apart from the duration stated by P.W.2 and P.W.12 for which period the victim was with the accused, there was no difference in the evidence of any of the P.Ws. Therefore, the evidence of P.W.1 and P.W.2 as well as P.W.12 so far it relates to the incident of rape on the victim remains constant throughout despite the delay in their examination. 15. It was argued that there was delay of 18 days in lodging of the F.I.R. No explanation is provided by the prosecution witnesses, particularly the informant, regarding cause of delay. In this connection, it may be mentioned here that P.W. 12 at paragraph No.2 stated that he went to Police Station and lodged the F.I.R., but the police did not accept the F.I.R. since the name and address of the accused was not known to them and the accused was not present in the village then. At paragraph No.3, P.W.12 further stated that on 20.11.2017 in the night, the accused returned to the house of Jhadeswar Pal. Jhadeswar Pal informed him over phone that the accused was Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 12 detained at his house. On that night, he was at Kolkata and he returned to his house on 21.11.2017. After his arrival, he went to the house of Jhadeswar Pal where some persons namely Nala, Vicky, Rinku, Pintu and others were present. On being asked, the accused stated that he inserted his finger into the private part of the victim. The accused further stated that he is a male and married person having wife and children. He adopted the appearance of a transgender in order to earn his livelihood. Thereafter, the informant went to the Police Station and lodged the F.I.R. 16. PW 5 is the doctor who medically examined the victim first. It is the case of the prosecution that P.W.2 and P.W.12 took the victim to Seemanta Hospital. The evidence of P.W.5 at para-1 pointed out that when the victim was produced before him, she was complaining pain on her private part. P.W.5 examined the victim and saw redness in her private part. Accordingly, he prescribed some analysis (analgesic) for her treatment and referred her to Jaleswar Hospital. During cross- examination, at para-2, P.W.5 stated that they maintained the OPD register in their hospital and he had mentioned the name of the victim in the OPD register about sexual assault meted upon the victim. 17. Upon hearing the learned counsel for the Appellant as well as the learned counsel for the State and after screening the evidence available on record, it is found that in view of nature Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 13 of evidence available on record and the fact that the victim girl who was aged about 4 to 5 years at the time of occurrence, there is no scope on the part of the Appellant to assail the finding of the trial court that prosecution has established the charge of commission of offence under Section 376 (2)(i) of the I.P.C. and Section 6 of the POCSO Act against the Appellant beyond reasonable doubt. Therefore, his first submissions with regard to setting aside of the conviction and sentence recorded by the trial court is liable to be dismissed. 18. However, learned counsel for the Appellant also made an alternate submission confining it on the quantum of sentence imposed on the Appellant. It was contended that at the time of occurrence minimum sentence prescribed was 10 years under Section 376(2) (i) of the I.P.C., but the trial court has imposed higher side of sentence. 19. To deal with the alternative submissions of the learned counsel for the Appellant, we have to see the quantum of sentence provided under Section 376(2)(i) of the I.P.C. Section 376 of the I.P.C. provides punishment for rape which is extracted below: “376. Punishment for rape:- (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 14 Xx xx xx” 20. This case relates to the year 2017. The occurrence took place on 03.11.2017. It may be stated that in the Indian Penal Code, 1860, for the offence punishable under Section 376(2)(i) of the I.P.C., the punishment at the relevant time was not less than 10 years but the same could extend up to imprisonment for life apart from imposition of fine. 21. From a reading of the above Section, it is clear that the minimum imprisonment that can be imposed under Section 376 of the I.P.C is ten years. It is also clear that the punishment may extend to imprisonment for life with fine. 22. The contention of the learned counsel for the Appellant was that at the time of occurrence minimum sentence prescribed was 10 years under Section 376(2) (i) of the I.P.C., but the trial court has imposed higher side of sentence. However, the Appellant has committed a heinous offence and it is a crime against the society. 23. In such circumstances and in view of the fact that the victim girl was aged about 4 to 5 years at the time of occurrence, this Court is of the considered view that imposition of maximum sentence on the Appellant is appropriate in this case. Accordingly, this Court is not inclined to accept the alternative Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 15 submissions with regard to quantum of sentence made by the learned counsel for the Appellant.
Decision
24. In view of the above, the judgment of conviction and order of sentence dated 22.02.2021 passed by the learned Additional Sessions Judge-cum- Special Judge, Balasore in Special Case No.428 of 2017 are confirmed. 25. Accordingly, this CRLA is dismissed. ( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree. Judge ( D. Dash ) Orissa High Court, Cuttack, Dated the 19th October, 2023/B. Jhankar Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2023 17:32:46 pg. 16