Orissa High Court · 2019
Case Details
Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.61 of 2019 An appeal from judgment and order dated 26.06.2019 passed by the Additional Sessions Judge -cum- Special Judge, Keonjhar in Special Case No.45/69 of 2016-14. --------------------------- Tufan Marwadi @ Chundi ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Lalitendu Bhuyan Advocate For Respondent: - Mr. Arupananda Das Addl. Govt. Advocate --------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 09.08.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Tufan Marwadi @ Chundi faced trial in the Court of learned Additional Sessions Judge -cum- Special Jugde, Keonjhar in Special Case No.45/69 of 2016-14 for commission of offences punishable under sections 366/376(2)(n) of the Indian Penal Code (hereinafter 8I.P.C.9) read with section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter 8POCSO Act9) and section 3(1)(xii) of the Scheduled // 2 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter 81989 Act9) on the accusation that on 11.08.2014 at about 8.00 p.m., he kidnapped the victim (P.W.3), who is the minor daughter of the informant (P.W.1) and was aged about twelve years, from her house with the intent that she might be compelled to marry him against her will or might be forced or seduced to illicit intercourse and that he committed rape on the victim repeatedly from 11.08.2014 to 19.08.2014 at Mahabura, Bankura jungle and committed aggravated penetrative sexual assault on her and used force on the victim, who belonged to a member of Scheduled Tribe (hereinafter 8S.T.9) community, with an intent to dishonour or outrage her modesty.
Legal Reasoning
The learned trial Court vide impugned judgment and order dated 26th June 2019 though acquitted the appellant of the charge under section 3(1)(xii) of the 1989 Act, but found him guilty under sections 366/376(2)(n) of the I.P.C. and section 6 of the POCSO Act and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs.20,000/- (rupees twenty thousand), in default, to undergo R.I. for a further period of one year for the offence under section 6 of the POCSO Act and sentenced to undergo R.I. for five years and to pay a fine of Page 2 of 17 // 3 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for a further period of six months for the offence under section 366 of the I.P.C. and no separate sentence was awarded for offence under section 376(2)(n) of the I.P.C. in view of section 42 of the POCSO Act and all the substantive sentences were directed to run concurrently. The Prosecution Case: The prosecution case, as per the first information report (Ext.4) lodged by P.W.1 Mochiram Chatamba, the father of the victim before the Inspector in-charge of Barbil police station on 20.08.2014 is that the victim was aged about twelve years and she was reading in Class-VI at the time of occurrence. On 11.08.2014 at about 8.00 p.m., the victim was found missing from her house and on 19.08.2014 at about 5.00 p.m., she returned back home and when the family members confronted her, she disclosed that the appellant forcibly kidnapped her, kept her in Tankura jungle and committed rape on her and subsequently on 19.08.2014 at about 5.00 p.m., he left her near her house. After registration of the case by the Inspector in- charge of Barbil police station, P.W.8 Ajaya Pratap Swain, who was the S.D.P.O., Barbil, took up investigation of the case and Page 3 of 17 // 4 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 examined the informant, the victim, the mother of the victim and other witnesses, apprehended the appellant. Both the appellant and the victim were sent for medical examination on police requisition and the reports were obtained. The wearing apparels of the victim so also the appellant were seized under seizure list vide Ext.7 and Ext.9 respectively. The biological samples of the victim were also collected by the doctor and the same was seized. Thereafter, the I.O. visited the spot and prepared the spot map. The victim was produced before the J.M.F.C., Barbil for recording of her statement under section 164 Cr.P.C. and accordingly, the same was done. The seized exhibits were sent to S.F.S.L., Rasulgarh for chemical examination through Court. The caste particulars of the victim was obtained from Tahasildar, Barbil vide Ext.15. On completion of investigation, the I.O. submitted the charge sheet under sections 366-A/376(2)(i)/506 of the I.P.C. read with section 4 of the POCSO Act and section 3 (1)(xii) of the 1989 Act. After submission of charge sheet, the learned trial Court framed charges against the appellant as aforesaid and since he refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Page 4 of 17 // 5 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 Witnesses & Exhibits: During course of the trial, in order to prove its case, the prosecution examined as many as eight witnesses. P.W.1 Mochiram Chatamba is the informant in the case and the father of the victim who stated that the appellant kidnapped his daughter, took her to the jungle and committed rape on her forcibly. He also stated about the disclosure made before him by the victim about the sexual assault committed on her by the appellant. P.W.2 Harihar Barik is the scribe of the F.I.R. who stated that P.W.1 requested him to scribe the F.I.R. and accordingly, he scribed the F.I.R. as per the version of P.W.1. P.W.3 is the victim who supported the prosecution case and stated about the commission of rape on her by the appellant. P.W.4 Rajani Munda @ Chatamba is the mother of the victim who stated about the disclosure made by the victim about the overt act committed by the appellant on her. P.W.5 Dr. Soudamini Dhal was posted as Medical Officer in-charge, C.H.C., Barbil who examined the victim on police requisition and proved her report vide Ext.2. Page 5 of 17 // 6 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 P.W.6 Dr. Soubhagya Rashmi Ranjan Samal was the Medical Officer at C.H.C., Barbil who examined the appellant on police requisition and opined that the appellant was capable of doing sexual intercourse and proved his report vide Ext.3. P.W.7 Kusumita Naik was the Ward Member of village Thakurani who, upon hearing about the incident from the parents of the victim, instructed them to approach P.W.2 for lodging the F.I.R. P.W.8 Ajaya Pratap Swain was working as the S.D.P.O., Barbil and he is the investigating officer of the case. From the side of prosecution, fifteen documents were exhibited. Ext.1 is the statement of the victim recorded under section 164 Cr.P.C., Ext.2 is the medical report of the victim, Ext.3 is the medical report of the appellant, Ext.4 is the F.I.R., Ext.5 is the medical requisition of the victim, Ext.6 is the medical requisition of the appellant, Exts.7, 8, 9 and 10 are the seizure lists, Ext.11 is the prayer for recording 164 Cr.P.C. statement of the victim, Ext.12 is the prayer for sending seized exhibits and Ext.13 is the office copy of forwarding letter to S.F.S.L., Bhubaneswar for chemical examination, Ext.14 is the chemical examination report and Ext.15 is the caste particulars of the appellant and victim submitted by the Tahasildar, Barbil. Page 6 of 17 // 7 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 The defence plea of the appellant is one of complete denial of the prosecution case and of false implication in this case due to a family dispute. The appellant being examined as D.W.1 stated that the parents of the victim had given proposal for her marriage with him and the engagement ceremony was also performed as per the rituals of tribal community. Since the parents of the appellant did not agree to the marriage, when they came to know that the victim was twelve years of age, a dispute arose between the two families and thereafter, a false case has been foisted against him. Finding of the learned Trial Court: The learned trial Court after analyzing the oral and documentary evidence on record came to hold that from the testimonies of the victim, her parents, the appellant and the doctor, it is found that on the date of occurrence, the victim was about twelve years old and no material was brought forward by the defence to establish that the victim was not a minor on the date of occurrence. Taking into account the stipulation under section 29 of the POCSO Act, the learned trial Court has been pleased to hold that the prosecution is required to prove the fundamental facts which constitute the offence. Once the ingredients of the offences are made out, the accused would be Page 7 of 17 // 8 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 given a chance to legally dislodge the same. It was further held that the prosecution is able to prove through the evidence of the victim girl as well as through medical report and the C.E. report that the appellant had committed sexual intercourse on the victim and no contradictory statement is elicited from the victim by the defence in connection with narration of the incident. It was further held that the prosecution has failed to establish that the appellant belonged to non-S.C. & S.T. category and therefore, it was deemed unsafe to convict him for the offence punishable under the 1989 Act. Accordingly, the learned trial Court has convicted the appellant of the charges under section 6 of the POCSO Act and sections 366/376(2)(n) of the I.P.C., however, acquitted him of the charge under section 3 (1)(xii) of the 1989 Act. Contentions of the Parties:
Legal Reasoning
Mr. Lalitendu Bhuyan, learned counsel appearing for the appellant contended that there is no clinching evidence available on record regarding the age of the victim and the observation of the learned trial Court that the victim was a minor girl at the time of commission of offences against her, is not justified. Learned counsel further submitted that the medical examination report does not indicate about any bodily injury on Page 8 of 17 // 9 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 the person of the victim though it is the prosecution case that rape was committed on her for six days inside the jungle and thus, it makes the allegations made in the F.I.R. improbable. Learned counsel further argued that as the victim seems to be a consenting party, the appellant be acquitted of the charges. Mr. Arupananda Das, learned Additional Government Advocate appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that not only the parents of the victim but the victim herself as well as the doctor stated that the victim was aged between twelve to fourteen years of age at the time of occurrence and the defence has not suggested anything to any of these witnesses that the age of the victim would be more and therefore, the finding of the learned trial Court that the age of the victim as on the date of occurrence was twelve years appears to be quite justified. Learned counsel further argued that in view of the evidence of the victim, which is very clinching and which gets corroboration from the evidence of her parents, would be sufficient to establish the charges that the appellant committed rape repeatedly on the victim inside the jungle. Further, the learned counsel argued that as the victim was a minor girl, which is proved by the evidence of not only her parents but also of the doctor (P.W.5), even for Page 9 of 17 // 10 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 the sake of argument, it is accepted that she consented to the sexual intercourse, her consent is no consent in the eyes of law and thus, he pleaded that the appeal should be dismissed. Adverting to the contentions raised by the learned counsel for the respective parties, let me first deal with the evidence of the prosecution relating to the age of the victim as on the date of occurrence. Age of the victim: P.W.1, the informant who is the father of the victim has stated that the victim was twelve years of age and she was studying in Class-VI. The victim being examined as P.W.3 reiterated the same. P.W.4, the mother of the victim has also stated that the age of the victim as on the date of deposition (19.11.2016) was twelve years and the evidence of P.Ws.1, 3 and 4 has remained unshaken during the cross-examination. The doctor (P.W.5), from the ossification test report, found and opined that the age of the victim would be between twelve to fourteen years and accordingly, she came to the conclusion that as on the date of occurrence, the victim was twelve years of age. On perusal of the evidence of the aforesaid witnesses, i.e. P.Ws.1, 3, 4 and 5, it appears that the victim was aged about twelve years as on the date of occurrence. Significantly, the Page 10 of 17 // 11 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 appellant being examined as D.W.1 has also stated that his parents did not agree to his marriage with the victim when they came to know that the victim was twelve years old. Therefore, after going through the evidence of P.Ws.1, 3, 4 and 5, I am of the humble view that the finding of the learned trial Court in holding that the victim was twelve years of age at the time of occurrence is quite justified. Clause 8sixthly9 of section 375 of the I.P.C. clearly provides that if a man does any of the act as enumerated under clauses (a), (b), (c) or (d) of section 375 of the I.P.C. with or without the consent of a girl when she is under eighteen years of age, it would be deemed to be 8rape9. In the case in hand, the age of the victim was established to be twelve years at the time of occurrence which is much below the age upon attaining which she would be eligible to accord her consent for sexual intercourse. Therefore, the contention of the learned counsel for the appellant that the overt act, if any, was done with the consent of the victim and it would not be a case of rape, deserves to be thrown out at the threshold. Evidence of the victim: The victim being examined as P.W.3 stated that one day in the year 2014, she had gone to tie rakhi to her cousin Page 11 of 17 // 12 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 brother Ahluwalia and on the way, the appellant dragged her by holding her hands and took her to Tankura jungle. She further stated that the appellant raped her in the jungle against her volition. She further stated that the appellant made her roaming around the jungle for eight to nine days and raped her six times and ultimately left her near her house. Thereafter, she went home and informed her parents about the occurrence. The father of the victim, being examined as P.W.1, has stated that when the victim came back home after eight to nine days, she revealed that the appellant had kidnapped her and taken her to the jungle and forcibly raped her during such time. P.W.4, the mother of the victim has also stated that when the victim returned home after eight to nine days, she informed that she was forcibly taken to the jungle and raped by the appellant. Therefore, the evidence of the victim gets corroboration from the evidence of her parents. The evidence of the doctor (P.W.5) also indicates that on 20.08.2014, when she medically examined the victim on police requisition, her genital examination revealed four old tears in her hymen which was aged about more than seven days and she specifically stated that sexual intercourse on the alleged dates i.e. between 11.08.2014 to 17.08.2014 cannot be ruled Page 12 of 17 // 13 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 out. There was no cross-examination of the doctor. The appellant was medically examined on 20.08.2014 by the doctor (P.W.6) on police requisition who opined that he was capable of having sexual intercourse. Therefore, the ocular testimony of the victim gets corroborated by her parents so also gets support from the medical evidence. The appellant being examined as D.W.1 stated that the parents of the victim had given proposal for her marriage with him and in that connection, engagement ceremony was held as per the rituals of the tribal community but when his parents came to know that the victim was twelve years of age, they did not agree for such marriage and for which there was a discord between the two families and, a false case has been foisted against him. In the statement recorded under section 313 of Cr.P.C., the appellant has stated that he had love affair with the victim and therefore, being averse to such relation, the father of the victim had initiated a false case against him. It appears that the defence plea is quite inconsistent and not reliable. In view of the forgoing discussions, I am of the humble view that not only the prosecution has successfully proved that as on the date of occurrence, the victim was twelve Page 13 of 17 // 14 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 years of age but also it has established that the appellant kidnapped her, committed rape on her inside the jungle on a number of occasions and ultimately left her at the house after eight to nine days. The doctor9s (P.W.5) evidence also corroborated the version of the victim and therefore, the learned trial Court is quite justified in holding that the ingredients of the offence under section 6 of the POCSO Act which prescribes punishment for 8aggravated penetrative sexual assault9 as defined under section 5 of the POCSO Act are made out inasmuch as section 5(l) of the POCSO Act states that whoever commits 8penetrative sexual assault9 on a child more than once or repeatedly can be said to have committed 8aggravated penetrative sexual9 assault. Similarly, the ingredients of the offence under section 376(2)(n) of the I.P.C. are also made out inasmuch as the prosecution has successfully proved that the appellant raped the victim repeatedly inside the jungle. In view of the proved age of the victim and her statement that she was dragged inside the Tankura jungle by the appellant and was detained there for about eight to nine days for the purpose of commission of sexual intercourse with her, I am of the humble view that the prosecution has also proved the Page 14 of 17 // 15 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 ingredients of the offence under section 366 of I.P.C. which provides punishment for kidnapping or abducting any woman so that she may be forced or seduced to illicit intercourse. The punishment that has been awarded to the appellant under section 6 of the POCSO Act is R.I. for ten years, which was the minimum sentence prescribed for such offence. No separate sentence was awarded for the offence under section 376(2)(n) of the I.P.C. in view of section 42 of the POCSO Act. Further, though the Court is empowered to sentence up to ten years for commission of offence punishable under section 366 of the I.P.C., it awarded a term of R.I. for only five years. Therefore, a combined analysis of the factors like age of the victim and nature of the offence committed, I do not find the sentences awarded to be extravagant or excessive. Conclusion: In view of the foregoing discussions, I am of the humble view that the learned trial Court has rightly come to the conclusion that the prosecution has successfully established the charge under sections 366/376(2)(n) of the I.P.C. and section 6 of the POCSO Act against the appellant and the impugned judgment and order of sentence hereby stand confirmed. No separate sentence is awarded under section 376(2)(n) of the Page 15 of 17 // 16 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 I.P.C. in view of section 42 of the POCSO Act as rightly done by the learned trial Court. Accordingly, the JCRLA being devoid of merit stands dismissed. The learned trial Court has awarded compensation worth of Rs.1,00,000/- (rupees one lakh) in favour of the victim and directed the District Legal Services Authority, Keonjhar to deposit the said amount in an interest bearing fixed deposit account in any Nationalised Bank in the name of the victim girl. It is not known whether such amount has been deposited or not, however, since the victim has now become major, the compensation amount be assessed in accordance with the Odisha Victim Compensation (Amendment) Scheme, 2018 and payment is to be made immediately to the victim within a period of two months from the date of receipt of a copy of this judgment. 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 Mr. Lalitendu Bhuyan, learned counsel for the appellant so also Mr. Arupananda Das, learned Additional Page 16 of 17 // 17 // Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Aug-2023 19:40:12 Government Advocate for rendering their valuable help and assistance towards arriving at the decision above mentioned. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 9th August 2023/Sipun Page 17 of 17