The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.390 OF 2016 From the judgment of conviction and order of sentence dated 03.03.2015 passed by Judge, Gajapati, Paralakhemundi in T.R. Case No.11 of 2013 arising out of G.R. Case No.14 of 2013. learned Special the Samir Bira ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. J. Sahoo Advocate. For Respondent - Mr. S.S. Kanungo, Addl. Govt. Advocate. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :30.01.2023 : DATE OF JUDGMENT:10.02.2023 D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 03.03.2015 passed by the learned Special Judge, Gajapati, Paralakhemundi, in G.R. Case No.14 of 2013 (G.R. Case No.11 of 2013), corresponding to Mohana P.S. Case No. 23 of 2013. CRLA NO.390 OF 2016 Page 1 of 12 {{ 2 }} The Appellant (accused) has been convicted for commission of offence under section-342/376(2)(i) of the Indian Penal Code (for short called as “the IPC”) and section-4 of the Prevention of Children from Sexual Offences Act (for short called as “the POCSO Act”). Accordingly, the Appellant (accused) has been sentenced to undergo imprisonment for life with the stipulation that he shall not be released from custody before completion of the period of 12 years thereof and to pay fine of Rs.30,000/- in default to undergo rigorous imprisonment for one year for offence under section-376(2)(i) of the IPC read with section- 4 of the POCSO Act and he has also been sentenced to undergo simple imprisonment for a period of six months for the offence under section- 342 of the IPC. 2. Prosecution case is that on 28.02.2013 around 5.30 pm, the accused was in his house in village Sulaba situated under the jurisdiction of Mohana Police Station. The victim on that day returned to her house from the School around 4 pm. The accused who is the neighbour then called the victim to his house to give him some salt. The victim when entered inside the house, the accused bolted the door and inside the kitchen room, he committed rape upon the victim by gagging cotton in her mouth. The accused then showing a knife, threatened the victim not to disclose the matter before anyone. In the evening, the elder brother of CRLA NO. 390 OF 2016 Page 2 of 12 {{ 3 }} the victim returned home and he came to know from his sister (victim) about the said incident. So he then informed the matter over mobile phone to his parents, who then were in the State of Kerala; where they had gone to work. The father of the victim on his return to the village from the State of Kerala, lodged a written report describing the above incident with the Inspector-In-Charge (IIC), Mohana P.S. on 10.03.2013. The IIC receiving the said report, immediately registered Mohana P.S. Case No. 23 of 2013 and the investigation commenced. 3. In course of investigation, he examined the Informant who happens to be the father of the victim. He also examined the victim, her mother and brother. Other relations of the victim such as uncle and aunt as well as one of her friends were too examined. The victim was examined by the Medical Officer at the instance of the Investigating Officer and the accused was also sent for medical examination. In course of investigation, incriminating articles were been seized. On completion of investigation, Final Form was submitted placing the accused to face the trial for commission of offence under section-452/376(f)/506/511 of the IPC read with section-4 of the POCSO Act. 4. The Special Court on receipt of the Final Form as above took cognizance of the said offences and after observing required formalities, framed the charges against the accused where upon trial commenced. CRLA NO. 390 OF 2016 Page 3 of 12 {{ 4 }} 5. In the trial, the prosecution has in total examined 13 witnesses. As already stated, the victim is P.W.1; whereas her parents are P.Ws. 2 & 3,
Legal Reasoning
the brother of the victim before whom the victim first disclosed the incident, has come to the witness box as P.W.7. When P.W.6 is one of the friends of the victim; P.Ws. 4 and 5 are her uncle and aunt. The Doctors who had examined the victim and the accused have came to depose during the trial as P.Ws.8 and 10. The police officials who had taken some part in course of investigation in some way or other have been examined as P.Ws. 9, 11 and 12 and the Investigating Officer has come to the witness box as P.W.13. The prosecution besides leading evidence by examining the witnesses has proved several documents which have been admitted in evidence and marked Ext.1 to 7; of which, important are the F.I.R., Ext.2, medical examination report of the victim, Ext.3 and that of the accused, Ext.4. The case of the defence is complete denial and false implication. The Defence having been called upon has examined one witness as D.W.1. 6. The Trial Court having gone through the evidence of the victim, her parents, brother and other witnesses including the medical experts has held, the prosecution to have proved its case against the accused for CRLA NO. 390 OF 2016 Page 4 of 12 {{ 5 }} commission of offence under section-342/376(2)(i) of the IPC read with section-4 of the POCSO Act beyond reasonable doubt and has sentenced the accused as aforestated. 7. Learned Counsel for the Appellant submitted that the Trial Court ought not to have accepted the version of P.W.1, who is the victim, without corroboration from independent sources. He submitted that the prosecution having not explained the delay of around 10 days in lodging the F.I.R; the evidence of P.Ws. 1, 2, 3 and 7 ought to have been seriously doubted. He further submitted that when no such feature of sexual intercourse had been noticed by the Doctor (P.W.8) while examining the victim (P.W.1) and when the Doctor (P.W.10) examining the accused, has found the accused to be then having fractured leg and with that condition, it was impossible to commit the act as alleged, the accused ought not to have been held guilty for commission of above offences. Since the prosecution attempted to build up an improbable case, according to him, with the available evidence on record, it has to be held that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. He, in the alternative, submitted that in the totality of the facts and circumstances; the quantum of sentence is too harsh and that it needs appropriate reduction. CRLA NO. 390 OF 2016 Page 5 of 12 {{ 6 }} 8.
Legal Reasoning
Learned Counsel for the State in reply submitted that the evidence of P.W.1, the victim being wholly reliable, the Trial Court has rightly held the accused guilty for committing the offences. He submitted that the evidence of victim, P.W.1 who was then only aged about 11 years being wholly free from any such infirmity and as no such material surfaces on the evidence of record to doubt the version of P.W.1, her parents and brother, which are wholly blemishless; the finding of guilt as has been returned by the Trial Court must stand. He submitted that in the facts and circumstances of the case, when the evidence of P.W.1 is carefully gone through, it would be seen that she described the incident in a very natural manner and that also find corroboration from her brother’s evidence who has been examined as P.W.7 who no sooner did arrive at home on that relevant date, the victim (P.W.1) had disclosed the incident to him, who then showing sensible response had telephoned to his parents. He submitted that when no room is left to entertain any doubt on the testimony of P.W.1 and her evidence is of starling quality, the accused cannot escape from liability as has been recorded by the trial Court. 9. Keeping in view the submissions made, We have carefully read the impugned judgment of conviction passed by the Trial Court. We have also travelled through the depositions of the witnesses; P.Ws. 1 to 13 and CRLA NO. 390 OF 2016 Page 6 of 12 {{ 7 }} the documents admitted in evidence from the side of the prosecution and marked Exts.1 to 7 have been perused. 10. The most important witness for the prosecution is P.W.1(victim). This P.W.1 at the relevant time was 11 years old and happens to be the daughter of P.Ws. 2 and 3 and sister of P.W.7. The accused happens to be their neighbour. She has stated that during then her parents had gone outstation to work and she was staying with her three brothers. It is her evidence that when on the date of occurrence, she returned home from the school and was alone in the house, accused called her to his house to give him some salt. As per her evidence, accepting the request of the accused, when she went to the house, of the accused, he bolted the front door and then committed rape upon her by closing her mouth. P.W.1 has also further stated that due to such sexual violence upon her by the accused, there was bleeding from her private parts. It is further stated that accused having threatened her by showing a knife, asked her not to disclose the matter before anyone. The elder brother of the victim (P.W.7) when returned home, this P.W.1 is stating to have narrated the incident and then her parents were told to return to the village from Kerala and it took more than a week for them to arrive from the place where they had been to work. CRLA NO. 390 OF 2016 Page 7 of 12 {{ 8 }} It is true that this P.W.1 during cross-examination has stated that the accused had called her to get the salt as his leg was broken but then whether it was actually so or not which she had marked herself is not elicited nor brought out from her to clarify. So, this being informed by the accused, one can take it as a pretext when other witnesses examined have not at all been so suggested by the defence whereas one witness is found to have stated that the accused while attempting to flee away, had sustained such injury. Thus, We find the evidence of P.W.1 to be wholly trustworthy and thus in our opinion is safe to be relied upon without corroboration. 11. That apart, P.W.7, the brother of the victim as deposed that in the afternoon when he returned home, he was told by P.W.1 that the accused having called her to his house to be given with some salt committed rape on her inside the house. The response of P.W.7 is immediate that he informed his parents over the telephone as also his uncle and aunt. The parents of the victim who have been examined have also deposed to have heard the incident from their son and daughter. Important here to note that the aunt of the victim was told about the incident and she has deposed during trial that the victim in the evening on that day had gone to her with bleeding injuries on her private part and had informed about the rape being committed by the accused in his CRLA NO. 390 OF 2016 Page 8 of 12 {{ 9 }} house. This witness has further stated to have physically examined the victim and found her underwear missing. A friend of the victim having been examined as P.W.6 has more specifically stated that in that afternoon, she along with the sister of the accused having collected water were returning to their house and on the way near the house of the accused, his sister knocked the door of the house of the accused which was then found to have been closed. She has further stated that after some time, she found the victim coming out of the house and was then crying and on being questioned, the victim informed that the accused called her to his house salt and then raped her. This witness has also seen the victim being not able to walk properly and then there was bleeding from her private part. All these evidence also provide full corroboration to the evidence of P.W.1 and wholly probabilises the incident as stated by P.W.1 leaving nothing else to doubt. 12. The evidence of all these witnesses being carefully examined, it is seen that the delay in lodging the F.I.R. is well explained and that apart materials do not at all provide any hint, for the parents of the victim to falsely implicate the accused in such offence of rape of their minor daughter at the cost of her life, chastity and dignity as well as the reputation of their family. CRLA NO. 390 OF 2016 Page 9 of 12 {{ 10 }} 13. The defence has sought to disprove the incident altogether by taking cue from the evidence of P.W.10, the Doctor who had examined the accused who has stated to have found the accused having a fractured right leg when he examined him. The defence witness D.W.1 has also stated so. But the incident having taken place on 28.02.2013, the F.I.R. has been lodged on 10.03.2013. P.W.1 is not stating that in fact the accused then had a fractured leg. It is her version that accused called her as his leg was fractured. That does not rule out the pretext part of the accused to call the victim. As discussed, a plain reading of the entire evidence of P.W.1, it being a pretext from the accused to call P.W.1 to his house at that time appears to be more probable as except P.W.1, no other witness has been asked anything on that score and it has been stated by P.W.7 that the accused had sustained the fracture when he was escaping from the village. We thus find no such evidence coming on record that the accused at the relevant time of occurrence had already received fracture on his leg for which it was not so possible on his part to commit the acts as stated by P.W.1. CRLA NO. 390 OF 2016 Page 10 of 12 {{ 11 }} With the above, the evidence of D.W.1 is found to be unacceptable. We also do not find any such reason at all to be emanating from the evidence that this victim, an eleven year old girl would choose the accused to falsely implicate in committing rape upon her, when We too notice the evidence of P.W.1 to be natural and her conduct as absolutely normal which a girl of that age is supposed to do, she has done. Therefore, this Court is of the considered view that the Trial Court has rightly held the evidence of P.W.1 to be trustworthy and taking her evidence with all other evidence as already discussed, which too provide strong corroboration; we find no infirmity with the ultimate finding arrived at by the Trial Court. Concluding thus, we find that the prosecution has established the charges under section-376(2)(i) of the IPC read with section-4 of the POCSO Act as well as the offence under section-342 of the IPC beyond reasonable doubt. 14. Having held as above, considering the alternative submission of the learned counsel for the Appellant (accused), We however find that in the facts and circumstances of the case, striking a balance, for the aforesaid conviction rigorous imprisonment for a period of 10 years with payment of fine of Rs.30,000/- in default to undergo rigorous imprisonment for one year for offence under section-376(2)(i) of the IPC read with section-4 of the POCSO Act, without awarding separate CRLA NO. 390 OF 2016 Page 11 of 12 {{ 12 }} sentence for the offence under section-342 of the IPC would meet the ends of justice. The fine one being realized be paid to the victim (P.W.1)
Decision
15. The Appeal is accordingly disposed of with the modification only as to the order of sentence to the extent as indicated above. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. True Copy Narayan CRLA NO. 390 OF 2016 Page 12 of 12