Criminal Appeal No. 33/40 of 2009 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.936 of 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Sushil Barik ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioners : Ms. Manasi Mohapatra, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.06.2024 :: Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 read with Section 397 Cr.P.C. is directed against the judgment and order dated 22.11.2011 passed by the learned Additional Sessions Judge, Champua in Criminal Appeal No.33/40 of 2009, whereby the judgment of conviction and order of sentence dated 08.06.2009 passed by the learned Asst. Sessions Judge, Champua in S.T. Case No.48/149 of 2006
Legal Reasoning
has been confirmed. 2. The prosecution case in brief is that on 22.03.2006 afternoon, the victim was taking rest on a cot, and her nephew Surendra Kabat and niece Susmita Naik were inside the house. The outside door was closed. Meanwhile, the accused Sushil Barik entered into the house and asked the victim, who administered poison in his tank. When the victim replied, how could she say that? Then the accused gave her two kick blows. One Harihar Naik had accompanied the accused. When he objected to the conduct, the accused asked him to leave the house. The accused asked the nephew and niece sleeping there to go out from the house. Thereafter, the accused bolted the door from inside and threw the victim on the cot and tore her saree, blouse and forcibly committed rape on her. At that time, the father of the accused was shouting from outside. Hearing his shout, the accused came out and threw away his father on the ground and left the place saying he will keep the victim as his wife. When the brother-in-law of the victim Harihar Naik came, the victim Page 2 of 14 narrated the incident to him. To settle the dispute, there was a meeting in the village, but the accused did not come. 3. On the basis of such allegation, the F.I.R. was registered as Baria P.S. Case No.13 of 2006 for the offence under Sections 452/323/376 of I.P.C. against the petitioner. During course of investigation, the Investigating Officer examined the victim and other witnesses, seized the clothes of the victim and sent the victim for medical examination. The I.O. arrested the accused and sent him for medical examination and then forwarded the accused to the Court. The I.O. sent all the seized articles to the S.F.S.L., Rasulgarh, Bhubaneswar for examination. After completion of investigation, charge-sheet was filed against the accused person for the offences punishable under Sections 452/323/376 of I.P.C. 4. To bring home charges, the prosecution had examined 20 witnesses. The material witnesses in the present case, P.W.12 was the prosecutrix, P.W.8 was the niece of the prosecutrix. P.W.9 was the nephew of the prosecutrix. P.W.14 was the doctor who examined the prosecutrix. P.Ws.1, 2, 3, 4, 5, 10 and 11 were the other witnesses of the Page 3 of 14 occurrence. P.W.20 was the mother of the victim whereas the P.W.18 was the I.O. in the present case. 5. The learned Trial Court gave emphasis on the evidence of the prosecutrix and the doctor who examined the prosecutrix. The testimony of two child witnesses i.e. P.Ws. 8 & 9 lent support to the prosecution case to bring corroboration to the testimony of the prosecutrix. The learned Trial Court by appreciating and evaluating the entire evidence on record arrived at the following conclusion:- <14. Thus on scrutiny of the evidence discussed above and in the light of the decisions of the Hon’ble Court I am inclined to hold that the accused had entered into the house of the victim, used criminal force to her and raped her against her will and consent. From the evidence of P.W.14 it is noticed that the victim had not sustained any external injury. Therefore, offence U/s. 323 I.P.C. is not made out but the lessor offence of criminal force U/s. 352 I.P.C. is well proved against the accused. Other charges U/s. 452 and 376 I.P.C. are well proved against the accused. Thus, prosecution has proved charges U/s. 452/376 I.P.C. and offence U/s.352 I.P.C. against the accused beyond all reasonable doubt. I hold the accused guilty U/s. 452/352/376 I.P.C. and convict him thereunder.= 6. Accordingly, the learned Trial Court awarded sentence of seven years R.I. with a fine of Rs.5,000/-, in default of payment of fine, R.I. for Page 4 of 14 further six months for the offence under Section 376 of I.P.C. Apart from that, sentence of two years of R.I. and fine of Rs.1,000/-, in default thereof three months R.I. for the offence under Section 452 of I.P.C. and three months R.I. for the offence under Section 352 of I.P.C. was also awarded. 7. Aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned Assistant Sessions Judge, Champua in S.T. Case No.48/149 of 2006 dated 08.06.2009, the petitioner filed an appeal before the Court of learned Additional Sessions Judge, Champua being Criminal Appeal No.33/40 of 2009. The learned Appellate Court concurred with the findings recorded by the Court below. While taking into consideration the plea of defence, the Appellate Court inter alia arrived at the following conclusion:- <11. On examination of P.W.13 who is the medical officer who examined the accused person deposed that on suggestion during cross-examination that in case of rape by force there may or not be injury. As the accused was examined after five days of the incident, it is quite obvious that there would be no evidence on recent sexual intercourse. Therefore, in the present case there is a corroboration on the medical evidence to the evidence of the victim regarding commission of rape. Other witness i.e. P.W.16 corroborated to the evidence Page 5 of 14 of the victim that he had seen the saree and wearing apparels were torn. The presence of the accused person inside the close room is well proved so arranging the evidence of P.W.12, 13, 14, 8, 9 and 16 the commission of offence of rape is well proved. The plea which was taken that the accused and the victim has inimical relationship, law is well settled in that context that previous <enemity is a double edged weapon=. It can be the basis of the conviction and can be taken as motive for commission of crime. In this case P.W.12 and father of the accused have stated that the accused person came to her house and asked who administrated poison in his tank and P.W.12 denied of having any knowledge so it can be formed the motive behind the commission of alleged offence. If I accept the submission of appellant for a moment that the evidence of P.W.13, 14 do not support the statement of victim and it is inconsistent to the prosecution and cast enough doubt in this case. So on this basis the accused person cannot be convicted. The submission as advanced by the counsel for the appellant does not carry sufficient legal force as in my considered view in this aspect is that even if the medical evidence is inconsistent in the statement of the prosecutrix relating to the forcible sexual intercourse still oral testimony of the victim of rape relied upon. It has been held in reported case B.C. Dutta-Vs.- State of Karnataka 2008 (Vol-II) SCC Crl.253. Moreover, corroboration in material particulars is not warranted for conviction. The sole testimony of the victim is sufficient to base a conviction if it is safe and reliable. I found the statement of P.W.12 is safe and reliable as she was only eye witness. Further in a tradition bound society a young woman of the age of 21 to 25 years will never bring her infamy by tarnishing her chastity and making self-destructive statement which is a prejudicial to her interest in the society. Therefore, the learned lower Court has rightly appreciate the evidence on record the conviction which is legal and proper. The grounds as taken in appeal hardly carries legal conviction. Page 6 of 14
Decision
In the result, there is no scope for interference in the impugned judgment. Hence the appeal is dismissed on contest and the judgment passed by the learned Asst. Sessions Judge, Champua in S.T. Case No.48/149 of 2006 dtd.8.6.2009 is hereby confirmed.= 8. Having failed in his appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 9. Heard Ms. Manasi Mohapatra, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 10. Ms. Mohapatra, learned counsel for the petitioner, vehemently submitted that in the facts and circumstances of the case, both the Courts below have materially erred in convicting the accused for the offences under Sections 376 & 352 of I.P.C. She has submitted that the testimony of the prosecutrix was not supported by the medical evidence since there was no external injury found on the body of the prosecutrix. Also no stain of semen or blood was found on the clothes of the prosecutrix. Therefore, she submitted that it creates a serious doubt about the credibility of the prosecutrix evidence particularly on the facts of the Page 7 of 14 present case as the prosecution story is that the accused had bolted the door from inside the house and forcibly had sexual intercourse with the prosecutrix. She has also submitted that P.W.14, the doctor who had examined the prosecutrix had categorically stated that no injury was found on the body of the victim and the private parts of the prosecutrix especially. Therefore, evidently there was no resistance from the prosecutrix in the commission of alleged sexual intercourse. She further submitted that except the deposition/evidence of the prosecutrix, there was no material brought on record by the prosecution to lend corroboration to the prosecutrix version. 11. I have gone through the evidence on record and meticulously evaluated the ocular evidence led by the prosecution to prove its case. The version of the prosecutrix in the instant case corroborates with the testimony of P.Ws.8 & 9, who were present in the room wherein the accused had entered and drove them out and bolted the room from inside. Thereafter, the prosecutrix deposed that after driving out P.Ws.8 & 9 from the house, the accused assaulted and raped her. This statement of the prosecutrix stood corroborated with the testimony of the P.Ws.8 & Page 8 of 14 9 those who had categorically deposed that they were driven out from the house by the accused and the door was bolted from inside. Therefore, the presence of the accused on the spot of the occurrence is proved. No doubt, there is no eye witness to the occurrence of rape but forcible entry of the accused inside the house and bolting the door from inside has been proved on record. It is also emanating from the evidence of P.W.14 that there was inflammation and tenderness in the labia minora of the victim, which was painful to touch and for which P.W.14 suspected some kind of local violence and opined that forcible sexual assault including sexual intercourse cannot be ruled out. The contention of the learned counsel for the petitioner that no semen or blood was found on the cloth of the prosecutrix has also been dealt with by the Courts below by evaluating the evidence of P.W.14. 12. It has come on record from the evidence of prosecutrix that after few hours of the forcible act of sexual intercourse committed by the accused, she suffered menstruation. Learned counsel for the petitioner submitted that in view of the fact that she had categorically stated, after the incident there should have been fungal infection, inflammation and Page 9 of 14 irritation. P.W.14, in his cross-examination had out rightly rejected the same, stating that this was nothing but a hypothesis as he found no fungal infection in the private part of the prosecutrix. P.W.14 also stated that the victim had menstruation on the date of the incident after some hours of alleged rape, for which he could not notice any semen stain in the private part of the victim as the victim had washed after menstruation. 13. In view of the aforementioned discussion, the submission made by Ms. Mohapatra, learned counsel for the petitioner holds no water. The Courts below have dealt with all the issues raised by the defence and have answered the same on the basis of the material available on record. 14. Mr. Ragada, learned Additional Government Advocate submitted that in the present case the prosecutrix has fully supported the prosecution case. He relied upon the judgment of the Hon’ble Supreme Court in the cases of Ranjit Hazarika vs. State of Assam reported in (1998) 8 SCC 635 as well as in the case of State of Punjab v. Gurmeet Singh & others reported in (1996) 2 SCC 384 and submitted that it is held by the Hon’ble Supreme Court that the courts while evaluating Page 10 of 14 evidence, remain alive to the fact that in a case of rape, no self- respecting woman will come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. He also submitted that ordinarily the evidence of a prosecutrix, if does not suffer from any suspicion should be enough to convict an accused, however, in the instant case the evidence of the prosecutrix stood corroborated with the evidence of the independent witness and medical evidence. Therefore, there is no scope to interfere with the conviction recorded by the Courts below while exercising revisional jurisdiction. 15. Having heard the rival submissions and argument advanced by learned counsel for the parties, I am of the considered view that the prosecution could successfully prove its case beyond any reasonable doubt. Therefore, the conviction recorded by the Courts below against the petitioner for the offence under Sections 376 & 352 of I.P.C. is confirmed and upheld. 16. At this stage, Ms. Mohapatra, learned counsel for the petitioner submitted that in the event this Court is not inclined to entertain the Page 11 of 14 Revision Petition insofar as the conviction recorded against the petitioner is concerned, the Court may take a lenient view insofar as the quantum of sentence is concerned. She has stated that the petitioner had already undergone the custody for three years seven months and ten days till date as U.T.I. and after conviction he has not misused the concession of bail. The incident had taken place in the year 2006. Much has changed now in the life of the victim as well as the accused. Therefore, she has submitted that under the proviso of Section 376 of I.P.C. by assigning adequate and special reason, this Court may reduce the sentence for a term less than seven years. For ready reference she referred the following provisions:- <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.= Page 12 of 14 17. Taking into consideration the facts of the present case and submission of learned counsel for petitioner and the fact that the incident had taken place in the year 2006 and at the time of incident the petitioner was about 28 years old and the present Revision Petition is pending since 2011, I am of the considered view that the sentence awarded by the Courts below to undergo R.I. for seven years for offence under Sections 376, 452 and 352 of I.P.C. and sentence of two years R.I. for the offence under Section 452 I.P.C. besides the sentence of three months R.I. for the offence under Section 352 of I.P.C. which was directed to run concurrently is reduced to that of the sentence of imprisonment the petitioner has already undergone in custody as U.T.P. and as convict during pendency of appeal. In the same time the fine of Rs.5,000/- imposed by the Courts below for the offence under Section 376 I.P.C. is enhanced to Rs.10,000/-, in default to pay the same, the petitioner shall undergo R.I. for six months. As far as the fine imposed by the Courts below for commission of other offences are concerned, the same are not modified, rather confirmed. The fine amount to be deposited by the Page 13 of 14 accused shall be disbursed to the victim in accordance with Section 357 Cr.P.C. as compensation. 18. Accordingly, the CRLREV is disposed of. ……………… (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 16th July, 2024/Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2024 14:25:19 Page 14 of 14