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IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.53 of 2019 From judgment and order dated 23.02.2019 passed by the Additional Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.77/02 of 2016. --------------------------- Pradeep Kumar Oram ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Miss Manaswini Rout Amicus Curiae For Respondent: - Mr. Rajesh Tripathy --------------------------- Addl. Standing Counsel P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 15.03.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Pradeep Kumar Oram faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.77/02 of 2016 for commission of offences punishable under sections 363/376(2)(i) of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter referred to as ‘POCSO Act’) // 2 // on the accusation that on 05.01.2016 at about 7.00 p.m., he kidnapped the victim, who was a minor girl aged about fifteen years from TISCO Colony, Bamebari and committed rape on her on that day night at TISCO Camp, Joda. The learned trial Court vide impugned judgment and order dated 23.02.2019 though acquitted the appellant of the charge under section 363 of the Indian Penal Code, but found him guilty under section 376(2)(i) of the Indian Penal Code so also section 4 of the POCSO Act and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further R.I. for one year for the offence under section 376(2)(i) of the Indian Penal Code and no separate sentence was awarded for the offence under section 4 of the POCSO Act in view of the section 42 of the said Act. 2. P.W.1 Anjali Patra, the mother of the victim lodged
Legal Reasoning
the first information report on 06.01.2016 before the Inspector in-charge of Bamebari police station and on the basis of such report, Bamebari P.S. Case No.04 of 2016 was registered under section 363 of the Indian Penal Code against the appellant. It is stated in the first information report that on 05.01.2016 at about 7.00 p.m., the victim, who was aged about fourteen years left the house and gone somewhere and the informant suspected Page 2 of 21 // 3 // that the appellant had kidnapped her. It is further indicated that while leaving the house, the victim had taken some money with her. The Inspector in-charge of Bamebari police station entrusted P.W.9 Prativa Manjari Sahoo, the S.I. of Police attached to Bamebari police station to investigate the matter. During course of investigation, the Investigating Officer examined the informant and other witnesses, visited the spot, prepared the spot map (Ext.11) and on the same day i.e. on 06.01.2016, the victim was rescued so also the appellant was apprehended at Keonjhar bus stand. The statement of the victim was recorded and the appellant was arrested for committing the offences under sections 363/376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act. The victim as well as the appellant was sent for medical examination. The biological samples of the appellant so also the victim, which were collected by the Medical Officer were seized and prayer was made by the I.O. for recording the 164 Cr.P.C. statement of the victim girl and on 07.01.2016, the same was recorded. The school admission register of the victim was seized by the Investigating Officer on 09.01.2016 from the Headmaster of the school which indicated the date of birth of the victim to be 04.03.2001. The school admission register was given in zima of the Headmaster as per zimanama (Ext.6). After receipt of the medical Page 3 of 21 // 4 // examination reports, the Investigating Officer made a prayer to the Court to send the exhibits to S.F.S.L., Rasulgarh, Bhubaneswar for Chemical Examination and she also received the Chemical Examination Report vide Ext.21 and on completion of investigation, P.W.9 submitted the charge sheet against the appellant under sections 363/376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act. 3. After submission of charge sheet, the learned trial Court framed charges against the appellant and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution has examined as many as nine witnesses. P.W.1 Anjali Patra is the informant in the case and the mother of the victim and she stated that on the date of occurrence, she went to the market with her son and after returning from market to home, she found that the victim was not present in the house and the front door and back door of the house were opened and she searched the victim but could not trace her out for which she went to Bamebari police station and reported the matter. She further stated that on 06.01.2016, Page 4 of 21 // 5 // when police intimated her that they have rescued her daughter from Keonjhar bus stand, she along with her mother went to police station and on being asked, the victim narrated the incident of commission of rape on her by the appellant. She stated that the victim was fourteen to fifteen years of age at the time of occurrence and was studying in Class-X. P.W.2 Swati Patra is the elder sister of the victim, who stated that during the occurrence period, she was studying at Joda and staying in hostel and on 06.01.2016, when she received a phone call from her mother (P.W.1), she came home on the same day and on her return, P.W.1 disclosed the entire incident. She further stated that at the time of occurrence, the victim was aged about fourteen years. P.W.3 is the victim. She supported the prosecution case and stated about the commission of rape on her by the appellant. She further stated that her date of birth is 04.03.2001 as per her H.S.C. certificate. P.W.4 Naresh Chandra Mohanta was the Headmaster of Saraswati Sishu Mandir, who produced the school admission register before the Investigating Officer wherein the date of birth of the victim was reflected as 04.03.2001. He stated about the Page 5 of 21 // 6 // seizure of such register and later on the same was given in his zima. P.W.5 Rajmani Munda is an independent witness, who did not support the prosecution case for which he was declared hostile by the prosecution and cross-examined. P.W.6 Dr. Jagdish Prasad Sahoo, who was working as Medical Officer in-charge, C.H.C., Joda, examined the appellant on police requisition on 07.01.2016 and proved his report marked as Ext.9. P.W.7 Khageswar Patra is the father of the victim and also the husband of P.W.1. He stated that on the date of occurrence, he was in his duty and after finishing his duty, he came home at 10.30 p.m. and P.W.1 disclosed that her daughter was missing and he went for searching but could not trace her out and P.W.1 went to the police station and lodged the F.I.R. He further stated that at the time of occurrence, the victim was aged about fifteen years. P.W.8 Dr. Nibedita Nayak, who was working as Medical Officer, D.H.H., Keonjhar, examined the victim on police requisition on 07.01.2016 and proved her report marked as Ext.10. Page 6 of 21 // 7 // P.W.9 Prativa Manjari Sahoo was the S.I. of Police, Bamebari police station and she is the Investigating Officer of the case. The prosecution exhibited twenty one numbers of documents. Ext.1 is the F.I.R., Ext.2 is the H.S.C. Certificate of the victim, Ext.3 is the 164 Cr.P.C. statement of the victim, Ext.4 is the seizure list of wearing apparels of the victim, Ext.5 is the seizure list of school admission register, Ext.6 is the zimanama, Ext.7 is the admission register having certificate, Ext.7/1 is the relevant entry in respect of date of birth of the victim, Ext.8 is the transfer certificate of the victim, Ext.9 is the medical examination report of the appellant, Ext.10 is the medical examination report of the victim, Ext.11 is the spot map, Ext.12 is the medical requisition of the victim, Ext.13 is the medical requisition in favour of the appellant, Ext.14 is the seizure list of biological samples of the appellant, Ext.15 is the seizure list of wearing apparels of the appellant, Ext.16 is the seizure list of biological samples of the victim, Ext.17 is the prayer made for recording 164 Cr.P.C. statement of the victim, Ext.18 is the prayer for sending the seized exhibits, Ext.19 is the office copy of forwarding letter to S.F.S.L., Bhubaneswar for Chemical Page 7 of 21 // 8 // Examination, Ext.20 is the copy of order passed by the Special Court and Ext.21 is the Chemical Examination Report. No witness has been examined on behalf of the defence. 5. The defence plea of the appellant is that he was working as a driver in the house of the victim and as per the instruction given by the victim, he brought her to Keonjhar but the police apprehended him and also took the victim from Keonjhar bus stand. 6. The learned trial Court after analyzing the oral and documentary evidence on record came to hold that there is no discrepancy between the date of birth of the victim as mentioned in the H.S.C. Certificate and the date as mentioned in the school admission register filed before the Court. It was further held that the most authenticated document which has been proved before the Court without objection i.e. the H.S.C. Certificate of the victim wherein the date of birth has been mentioned as 04.03.2001 and therefore, the victim was minor as on the date of occurrence and less than eighteen years. The learned trial Court further held that nothing has come out from the mouth of P.W.1 and P.W.3 (victim) that the appellant had forcibly taken the victim from the house from the lawful guardianship of her parents and therefore, the prosecution has failed to prove its Page 8 of 21 // 9 // case against the appellant for the offence under section 363 of the Indian Penal Code. It was further held that from the conjoint reading of the evidence of the victim and other witnesses coupled with the S.F.S.L. report (Ext.3), the prosecution has well proved its case that the victim was ravished by the appellant and she was less than sixteen years at the time of occurrence. Accordingly, the learned trial Court found the appellant guilty of the offences under section 376(2)(i) of the Indian Penal Code so also section 4 of the POCSO Act. 7. Miss Manaswini Rout, learned Amicus Curiae appearing for the appellant contended that there is doubt about the age of the victim and the finding of the learned trial Court that the victim was less than eighteen years at the time of occurrence is not acceptable. She further submitted that the victim was medically examined by P.W.8, who did not find any bodily injury suggestive of forcible sexual intercourse and there was no sign and symptom of sexual intercourse and therefore, the evidence of the victim that the appellant kept sexual relationship with her many times in the Hindi Medium School, Joda on the occurrence night and it was the first sexual experience is not acceptable, particularly, when it has been brought out on the cross-examination of the doctor that the vaginal canal admitted two fingers and the signs suggested that Page 9 of 21 // 10 // the victim was accustomed to regular sexual intercourse. It is highlighted that though according to the victim, the place of occurrence was a Hindi Medium School located at TISCO Camp, Joda, but no one from the said school has been examined and the Investigating Officer has not made spot visit of the school compound, which is a serious lacuna in the prosecution case and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant.
Legal Reasoning
Mr. Rajesh Tripathy, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that when the date of birth as mentioned in the H.S.C. Certificate tallies to the date of birth as mentioned in the school admission register and the date of birth of the victim in both the documents have been mentioned as 04.03.2001 and the occurrence in question took place on 05.01.2016, therefore, the learned trial Court has rightly came to the conclusion that the victim was less than eighteen years at the time of occurrence. Learned counsel for the State submitted that though the victim appears to be a consenting party, but in view of the clause ‘Sixthly’ of section 375 of the Indian Penal Code, wherein it is stated that a man is said to commit ‘rape’, if he commits any of the act as mentioned under (a), (b), (c) and (d) against a lady with or without her Page 10 of 21 // 11 // consent when she is under eighteen years of age, the plea of consent is not available to the appellant. Learned counsel for the State further highlighted that the doctor (P.W.8) has categorically stated that sexual intercourse with the victim cannot be ruled out and though the Investigating Officer has not visited the school compound where the occurrence in question took place, but for the laches of the Investigating Officer, the evidence of the victim cannot be discarded, which is otherwise believable and appears to be truthful. Learned counsel further submitted that the Chemical Examination Report would indicate that the red colour brief of the appellant so also the navy blue colour panty of the victim were found to be having semen stain and it contained ‘B’ and ‘O’ group of specific substances, which is another clinching evidence against the appellant and therefore, the appeal should be dismissed. Age of the victim: 8. Specific charge has been framed against the appellant for commission of offences under section 376(2)(i) of the Indian Penal Code so also section 4 of the POCSO Act on the accusation that rape was committed on the victim, who was aged about fifteen years at the time of occurrence. The school admission register of the victim marked as Ext.7 was produced by none else than P.W.4, who was the Headmaster of the school Page 11 of 21 // 12 // wherein the date of birth of the victim is mentioned to be 04.03.2001 as per entry vide Ext.7/1. During course of evidence, the victim (P.W.3) stated that her date of birth is 04.03.2001 as per her H.S.C. Certificate. The H.S.C. Certificate has been marked as Ext.2, which has been proved by P.W.1, the mother of the victim, who has also stated that the date of birth of the victim is 04.03.2001. The victim has been suggested by the learned defence counsel in the cross-examination that she was aged about twenty years to which she denied. Suggestion has also been given to P.W.1 that the victim was aged about nineteen years on the date of occurrence to which she has denied. P.W.1 has specifically stated that her three children have no birth certificates and the dates of birth of her children were mentioned in the school admission register as per her say. She further stated that her daughter was born when they were residing at Jaribar and no Anganwadi centre was there at Jaribar. Therefore, when not only the oral evidence but also the documentary evidence in the form of H.S.C. certificate and school admission register is consistent that the date of birth of the victim was 04.03.2001 and nothing has been brought out in the cross-examination of either P.W.1 or P.W.3 to disbelieve the same nor any rebuttal evidence has been adduced by the defence that the date of birth as mentioned in the documents is Page 12 of 21 // 13 // not correct, therefore, this Court is of the view that the date of birth of the victim was 04.03.2001. When according to the prosecution case, the occurrence in question took place on 05.01.2016, therefore, the learned trial Court is quite justified in holding that the victim was a minor girl and she was less than eighteen years at the time of occurrence. The victim was 14 years 10 months at the time of occurrence. Rape on the victim: 9. The victim being examined as P.W.3 stated that on 05.01.2016 at about 6.30 p.m., while she was studying in her house, the appellant came to her house and told her that her mother is at Joda market and had sent him to bring her to Joda with money and he further told her to bring some money. At first, the victim denied to accompany the appellant but the appellant told her that her mother would got angry with her for which she left the house and went with the appellant by bus to Joda and they got down at Joda and at Joda, when she asked about the whereabouts of her mother, the appellant disclosed before her that her mother was not present rather he had brought her as he was in love with her. When the victim cried, the appellant threatened her to kill her and her family members and asked her to accompany him. The evidence of the victim further indicates that the appellant took her to a Hindi Medium Page 13 of 21 // 14 // School located at TISCO Camp, Joda where she was kept in the night and mentally tortured and the appellant kept physical relationship with her against her will and consent. The victim further stated that on the next day in the dawn hour, the appellant told her that there is chance of nabbing for which he took her to the jungle by foot and kept her in the jungle throughout the day, but he could not commit any rape there and in the dusk hour, he took her to Joda through an unknown path from the jungle and brought her to Keonjhar by bus and in Keonjhar bus stand, while they were boarding the bus to proceed to Rourkela, the police arrived and rescued her. The victim further stated about recording of her statement by the Magistrate, her medical examination and seizure of her wearing apparels. In the cross-examination, the victim has stated that she was alone in the house when the appellant came and took her with him and she did not lock the house but bolted the door from outside as because her father was supposed to return from his duty. She further stated that she did not intimate any of her neighbours when she left the house. She further stated that she reached Joda market with the appellant by 7.00 p.m. where there were 200 shops and it was a very busy market during the evening hours. She further stated that when she was taken to Keonjhar by bus, she was in a frightened state for which she did Page 14 of 21 // 15 // not raise any hulla or shout and did not draw the attention of other people at Keonjhar bus stand even though she was standing near the ticket counter and the place was lighted and there were three to four buses standing to proceed to different places. The victim further stated that the appellant kept physical relationship with her for many times in the Hindi Medium School at Joda on the occurrence night and it was her first sexual experience. It has been confronted to the victim about her previous statement recorded under section 161 Cr.P.C. and proved through the Investigating Officer (P.W.9) that she did not state before her that the appellant came to her house, told her that her mother told to bring her with him with some money and that she did not agree to go with him for which he told that her mother might got angry with her and she went with the appellant to Joda for that reason and at Joda, the appellant threatened her to kill or to abduct her and that the appellant showed her knife when she tried to escape. Her statement under section 164 Cr.P.C. was also confronted to her wherein she stated that she committed wrong by keeping sexual relationship with the appellant. Even though there are some discrepancies in the statement of the victim in comparison to her previous statement recorded under section 161 Cr.P.C. as well as section 164 Page 15 of 21 // 16 // Cr.P.C., but there are no such discrepancies relating to the commission of keeping physical relationship with the victim by the appellant in the Hindi Medium School in the night of occurrence. The victim has also disclosed before her mother (P.W.1) on being asked that the appellant took her to Joda by bus where he kept her in a school and gave her water to drink and committed rape on her and they spent the entire winter night in the school. The Investigating Officer (P.W.9) stated that during course of investigation, she visited the spot and prepared the spot map (Ext.11) but Ext.11 indicates that the spot is the house of the informant. The I.O. has not stated at all to have visited Hindi Medium School located at TISCO Camp, Joda where the occurrence has taken place. In a case of this nature, when the statement of the victim indicated that the commission of rape took place in the Hindi Medium School located at TISCO Camp, Joda, the Investigating Officer should have visited the school premises and verified whether there was any security guard in the school posted during night time or not, whether there was any person residing within the school complex in the night in question or not, whether anybody in the vicinity of the school had seen the appellant and the victim together in the night of occurrence and whether any incriminating articles were there at Page 16 of 21 // 17 // the spot to corroborate the statement of the victim relating to commission of rape. These are serious laches on the part of the I.O., but the question comes for consideration as to whether for such laches, the entire prosecution case including the statement of the victim and other witnesses are to be discarded. Law is well settled that laches on the part of the Investigating Officer cannot be fatal to the prosecution case where ocular testimony is found credible and cogent. The Investigating agency is expected to be fair and efficient but any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence. Investigation is not the solitary area for judicial scrutiny in a criminal trial. There is legal obligation on the part of the Court to examine the prosecution evidence de hors the lapses carefully to find out whether the said evidence is reliable or not and whether such lapses affected the object of finding out the truth. The victim was examined on 07.01.2016 by P.W.8, who was stated that there was no external bodily injury found suggestive of forcible sexual intercourse, there was no sign and symptoms of recent sexual intercourse as there was no bleeding, no pain, no tenderness on her private part, however, she stated that sexual intercourse cannot be ruled out. In the cross- Page 17 of 21 // 18 // examination, the doctor has stated that there was some old tear at 7 O’ clock and 3 O’ clock in the hymen and the vaginal canal admitted two fingers and the signs suggested that the victim was accustomed to regular sexual intercourse. The doctor further stated that the version of the victim was recorded in the history of the case and she disclosed before her that she was in love with the appellant and she had consensual sex with the appellant. From the surrounding circumstances, particularly in view of the conduct of the victim in leaving with the appellant alone giving no intimation to the neighbours, raising no objection while proceeding to Joda in a bus with the appellant, making no complain before others, accompanying the appellant to the school and staying there throughout the night and in view of her statement before the doctor (P.W.8) that she was in love with the appellant and consensual sex with the appellant, I am of the view that the victim (P.W.3) was a consenting party and sexual relationship of her with the appellant which took place inside the school compound in the night of occurrence was with the consent of the victim. The question now crops up for consideration is whether in view of the age of the victim at the time of occurrence, which has already been held to be 14 years 10 months, the appellant is to be exonerated of the charge under Page 18 of 21 // 19 // section 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act. Section 375 of the Indian Penal Code defines ‘rape’ and clause ‘Sixthly’ of section 376 of I.P.C. makes it very clear that if the woman is under 18 years of age, then sexual intercourse with her with or without her consent is rape. This is commonly referred to as ‘statutory rape’ in which the willingness or consent of a woman below the age of 18 years for having sexual intercourse is rendered irrelevant and inconsequential. (Ref: Independent Thought -Vrs.- Union of India, (2017) 10 Supreme Court Cases 800) Section 376(2)(i) of the Indian Penal Code states that whoever commits rape on a woman when she is under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life. Section 376(2)(i) of the Indian Penal Code was omitted by Act 22 of 2018 w.e.f. 21.04.2018 and sub-section (3) was inserted by the same Act which deals with the punishment for commission of rape of a woman under sixteen years of age. Section 4 of the POCSO Act prescribes punishment for ‘penetrative sexual assault’ and ‘penetrative sexual assault’ on a child has been defined under section 3 of the said Act. As Page 19 of 21 // 20 // per the definition of child in section 2(d), a ‘child’ means any person below the age of eighteen years. Therefore, in view of the age of the victim at the time of occurrence i.e. fifteen years, the plea of consent is not available to the appellant. Therefore, even the consensual sex of the appellant with the victim (P.W.3) would attract the ingredients of the offences under section 376(2)(i) of the Indian Penal Code as well as section 4 of the POCSO Act. In view of the foregoing discussions, in my humble view, the learned trial Court has rightly found the appellant guilty under section 376(2)(i) of the Indian Penal Code read with section 4 of the POCSO Act. Since the minimum substantive sentence as provided for section 376(2)(i) of the Indian Penal Code has been awarded to the appellant i.e. for ten years, no interference is called for to such sentence, however, so far as the default sentence of one year for non-payment of fine amount as awarded by the trial Court is reduced from one year to one month in view of the poor financial condition of the appellant. 10. It appears from the impugned judgment that direction has been given to pay compensation to the victim under the Odisha Victim Compensation Scheme, 2012. It is not clear whether the victim has received any compensation. If she has not received any such compensation, immediate steps shall Page 20 of 21 // 21 // be taken in that respect by the District Legal Services Authority, Keonjhar. With the aforesaid modification in sentence of imprisonment in default of fine, the Jail Criminal Appeal stands dismissed. Let a copy of the judgment be sent to the District Legal Services Authority, Keonjhar for compliance. Trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Miss Manaswini Rout, the learned Amicus Curiae for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to her professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 15th March 2023/RKMishra Page 21 of 21