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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.390 of 2023 (From the judgment dated 17.11.2021 passed by the learned Addl. Sessions Judge, Kantabanji in CRLA No.02 of 2017 arising out of judgment of conviction and order of sentence dated 20.12.2017 passed by the learned Asst. Sessions Judge, Kantabanji in S.C. Case No.8/20 of 2012-2013) Pitambar Bhati …. Petitioner(s) . -versus- State of Odisha …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. Siddharth Prasad Mishra, Adv. Mr. Ashok Kumar Das, Adv. Mr. Sonak Mishra, Addl. Standing Counsel CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-28.03.2024 DATE OF JUDGMENT: -19.04.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner through this CRLREV challenges the judgment of conviction and order of sentence dated 20.12.2017 passed by the learned Asst. Sessions Judge, Kantabanji in S.C. Case No.8/20 of 2012- 2013 and the judgment dated 17.11.2021 passed by the learned Addl. Sessions Judge, Kantabanji in CRLA No.02 of 2017. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 1 of 13 I. FACTUAL MATRIX OF THE CASE: 2. The case of the prosecution in brief is that the victim lodged a written report before the Kantabanji police station on 03.10.2011 alleging therein that on 26.09.2011 at about 8.00 A.M while she had been to attend the call of nature to an open filed, at that time the accused person named Pitambar Bhati of village Dangamara came, caught hold her and committed rape on her. The victim tried to get out of his clutch but could not do so. The victim raised hullah and on hearing her hullah, her father who was present in his cotton field rushed to the spot. By seeing her father, the accused person tried to flee from the spot. Based on the said report, the I.I.C of the said P.S registered Kantabanji P.S. Case No.139 dated 03.10.2011 under Section 376 of the I.P.C. and took up investigation of the case. During the course of investigation, he examined the victim and other witnesses, visited the spot, prepared the spot map, sent the victim and accused person to the hospital for their medical examination, seized the articles, prepared the seizure list, gave the zima of the articles after executing proper zimanama. Later, they received the report from the Medical Officer and after completion of his investigation submitted the charge sheet against the accused person. Thereafter, the learned J.M.F.C, Kantabanji took cognizance of offence under Section 376 of the I.P.C. and committed the case to the court of Sessions for trial. 3. Learned Asst. Sessions Judge, Kantabanji vide the judgment of conviction and order of sentence dated 20.12.2017 passed the in S.C. Case No.8/20 of 2012-2013 convicted and sentenced the Petitioner/ Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 2 of 13 Revisionist under Section 376 of the I.P.C. Thereafter, learned Addl. Sessions Judge, Kantabanji vide judgment dated 17.11.2021 passed in CRLA No.02 of 2017 confirmed the judgment of conviction and order of sentence dated 20.12.2017 passed the in S.C. Case No.8/20 of 2012- 2013 by the learned Asst. Sessions Judge, Kantabanji. Hence, this Criminal Revision. II. PETITIONER’S SUBMISSIONS: 4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) During the course of investigation the present Petitioner was apprehended on 03.10.2011 and after completion of investigation, the police personnel submitted charge sheet as against the Petitioner. After complying with all the formalities, the learned Asst. Session Judge, Kantabanji framed the charges for the above alleged offences. (ii) The victim and the petitioner belong to the same locality. Marriage proposal of the petitioner with the victim was moved. But the family members of the petitioner did not agree. In order to take revenge, the victim filed this false case against the present petitioner. However, that aspect has not been considered by both the courts below. The occurrence took place on 26.09.2011. However, the F.I.R has been lodged on 03.10.2011 which is about seven days after the occurrence. The delay of lodging of the F.I.R has not been properly explained which cast serious doubt regarding the genuineness and veracity of the prosecution story. It proves to be an afterthought. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 3 of 13 (iii) The P.W.3 has stated that the victim was about 14 years old at the time of the alleged incident. The victim also stated in her deposition that she was aged about 14 years. But, the admission register produced by the Headmaster of the School shows that the date of birth of the victim was 28.05.1994. So, at the time of occurrence, the victim was aged about 17 years. The doctor who examined the victim stated that the age of the victim could be between 17 to 19 years, which cast serious doubt regarding the version of the victim as well as her parents. But, both the courts have not considered that aspect while passing the judgment of conviction and sentence. (iv) P.W-14 the medical officer who examined the victim did not find any sign of recent sexual intercourse on her. She did not notice any injury or mark of violence on her private part. But, the old tears of hymen suggested that she had experienced sexual intercourse more than 5 to 6 days back. But, that aspect has not been considered by the learned courts below while passing the judgment of conviction and sentence. (v) Accordingly, the prosecution has miserably failed to bring home the charges leveled against the petitioner. But, both the learned courts below without assessing evidences in its proper prospective in a casual and whimsical manner have convicted the petitioner for the above alleged offences and passed sentence thereunder which is not at all sustainable in law and liable to be set-aside. Therefore, the Petitioner may be acquitted from the above alleged charges. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 4 of 13 III. SUMISSION OF OPPOSITE PARTY/STATE: 5. On the other hand, learned Additional Standing Counsel for the State vehemently opposed the submission of the learned counsel for the Petitioner while supporting the impugned judgment of the court below and argued that the court below has rightly appreciated the evidence of the prosecution witnesses and arrived at a just conclusion as warranted by law, as such the impugned judgment and sentence passed by the court below could never be interfered with. IV. COURT’S ANALYSIS AND REASONS: 6. In order to bring home the charges the prosecution has examined as many as 17 witnesses in support of their case. Out of them, P.W-1, is the father of the victim, P.W-2 and P.W-3 are the villagers and post occurrence witnesses, P.W.-4 is also a post occurrence witness, P.W-5 is the informant and victim of this case, P.W.-6 is the mother of the victim, P.W-7 and P.W-8 are the official witnesses to the seizure. P.W-9 is the School Head Master, P.W-10 is the constable who accompanied the victim for medical examination, P.W-11 is the uncle of the victim who was present in the caste meeting, P.Ws-12 and 13 are official witnesses to the seizure, P.W-14 is the Doctor who examined the victim. P.W-15 is a Constable who accompanied the victim for her Ossification test, P.W-16 is the Doctor who examined the petitioner, P.W-17 is the investigating officer, and exhibited certain documents. None has been examined on behalf of the defence. 7. During the course of evidence taking, the informant- victim (P.W.5) in her evidence has stated that on the date of occurrence i.e at about Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 5 of 13 08.00am she had been to the jungle situated near her village to attend the call of nature. After attending the call of nature, while she was coming inside that jungle, the accused person suddenly came, caught hold of her, torn her pant and shirt, made her lie on the ground and in spite her protest the accused person forcibly committed rape on her. On hearing her hullah, her father, who was present in his land situated nearby that jungle came to the spot. Seeing her father, the accused person ran away from the spot. The survivor told about the incident to her father and her father brought her to their house. Her father told the incident to some of the caste people and a meeting was held by the caste people. In the said meeting of the gentries, it was proposed for the marriage of the victim with the accused. But, the accused denied for marriage. So, the gentries advised the father of the victim to take shelter of court of law. Thereafter, she reported the matter before the police station and F.I.R. was lodged, hence, there was some delay in lodging the same. 8. P.W.6, the mother of the victim in her evidence has stated that on the date of occurrence at about 8.00 A.Μ her daughter had been to the jungle to attend the call of nature. After a while her daughter being accompanied with her father reached to the house. The victim was crying and her dress was torn. On being asked, she told her that while she was returning after attending the call of nature, the accused caught hold of her, made her lie on the ground, torn her clothes and forcibly committed rape on her and on hearing hullah her father went the spot and the accused ran away from the spot. She has further stated that her Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 6 of 13 husband has also told the said fact to her. Her husband told the incident to some of the caste people and a meeting was held for amicable settlement, but, as the matter could not be settled, her daughter reported the matter before the police. 9. P.W.2, one of the independent witnesses has stated that on the date of occurrence at about 8.00 Α.Μ he had been to the jungle to attend call of nature and nearby the jungle he found Ganesh Banchhor (P.W.1) was coming from the jungle with the victim. The victim was crying and Ganesh Banchhor (P.W.1) told him that the victim had been to jungle to attend the call of nature and the accused seeing her alone forcibly committed rape on her. He also saw the accused was running away towards the village. P.W.2 has further stated that police seized the wearing apparels of the victim in his presence and prepared the seizure list. 10. P.W.3, another independent witness in his evidence has stated that one day in the year 2011, father of the victim (P.W.1) told him that while his daughter went to jungle to attend call of nature, the accused person forcibly committed rape on her. He has further stated that a meeting was held in his village and as both the victim and the accused belong to the same caste, they proposed for their marriage, but the matter could not be materialised. So they advised the father of the victim to take shelter of the court of law. 11. P.W.4, another independent witness in his evidence has stated that one day there was a meeting held in his village for marriage of the accused person with the victim. He attended that meeting and came to know Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 7 of 13 that the accused person had raped the victim. But the matter could not be materialised. 12. P.W.10, constable of police has stated that as per the direction of the IIC he along with lady Home- guard Bhabani Chhatria (P.W.8) accompanied the victim to C.H.C. Kantabanji for her medical examination and after her medical examination, the doctor handed over him to sealed vials and on his return he produced those two vials before the IIC of the P.S, who seized the same vide Ext.5. P.W.9, the Headmaster of the school has stated that on the application of the IIC of Kantabanji P.S to supply the date of birth of the victim, he supplied the photocopy of the relevant in the school admission register continuing from the year 1997 till 2008, which was seized by the police vide Ext.9. 13. P.W.14, the medical officer in his evidence has stated that on 03.10.2011 at about 7.10 pm on police requisition he examined the victim and noted the following: On genital examination of the victim revealed a normally developed female genital. There was no bleeding or discharged form vaginal. There was no meeting of pubic hair. There was no strain of foreign body over it. there was no injury to labia majora and labia minora. The hymen showed three nos. of old healed of tears, one posteriorly in the mid line, one on the right side and one on the left side, all extending to the edge of vagina and did not show any sign of inflammation. The vaginal orifice admitted passage of two finger easily. A vaginal swab collected from the posterior formix and examined under microscope, but no spermatozoa was detected another Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 8 of 13 vaginal swab was preserved. P.W.14 has gave his report vide Ext. 11. He has further stated that on 26.10.2011 two numbers of x- ray plates of the victim taken by S.D.H., Patnagarh on 14.10.2011 were produced before him and he gave his opinion vide Ext. 12 with regard to age of the victim. He has suggested that the age of the victim might be within 17 to 19 years. 14. P.W.16, the Medical Officer in his evidence has stated that on 03.10.2011 on police requisition he examined the accused Pitambar Bhati and opined as follows: (i) person is capable of having sexual intercourse, (ii) his clothing etc. had no physical clue of alleged sexual offence, (iii) There was no bodily injuries suggesting forcibly sexual intercourse, (iv) as per genitalia examination there is no sign or symptom of recent sexual intercourse. He proved his report vide Ext.13. P.W.17, the 1.0 of the case in his evidence has stated that as per the written report of the informant, he registered Kantabanji P.S. Case No. 113, dated 03.10.2011 under section 376 of IPC and took up the investigation of the case. He has further stated that during the course of his investigation he examined the informant and other witnesses, sent the victim and the accused person to hospital for their Medical examination, visited the spot and prepared the spot map, seized the wearing apparels of the accused and prepared the seizure list, arrested the accused and forwarded him to the court seized the admission register, prepared the seizure list and gave the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 9 of 13 zima of the same to the headmaster, sent the wearing apparels and physical extracts of the victim as well as the accused to R.F.S.L., Sambalpur for chemical examination and after completion of his investigation, he submitted the charge sheet under section 376 of IPC against the accused person. 15. On a minute scrutiny of evidence of prosecution witnesses, it appears that the victim-informant in her F.I.R has mentioned that at the time of occurrence she was aged about 14 years old. The medical officer (P.W.14) who had examined the x-ray plates of the victim has opined vide his report (Ext.12) that the age of the victim was on 14.10.2011 might be within 17 to 19 years. The I.O (P.W.17) has seized the school admission register of S.M.C Govt. Primary School Dangamara vide Ext.9, which disclosed that the date of birth of the victim is 28.05.1994. Hence, the age of victim is about 17 years at the time of occurrence. But during the recording of evidence of the victim in the court, the victim could not say her age, however the learned A.S.J. while recording the evidence of the victim (P.W.5) has mentioned the age of the victim to be 14 years in the deposition. Since the victim in her F.I.R has mentioned her age is about 14 years, considering the multiple age it can be safely said that the victim was minor at the time of occurrence as the school register also reveals her to be a minor. 16. From the chemical examination (Ext.17), it is revealed that the chemical examination was conducted on 31.07.2014, the incident took place on 03.10.2011, but Ext.17 discloses that the exhibits were sent for chemical examination on 18.10.2011 after 15 days of lodging of the F.I.R before Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 10 of 13 the P.S. from the chemical examination report, it is found that after three years of the incident, the exhibits were examined. As such it felt that the report of the chemical examination of the pubic hair, and vaginal swabs and absence of semen strain thereon is not of much consequence. It has been held by this Court in the case of Tarini Mohanta and others Vs. State of Orissa1 that non presence of semen strains in vaginal swab is not fatal to the case of prosecution specially when there is much delay in chemical examination of the exhibits. As such the disbelieving the prosecution case is not acceptable. 17. As regards the delay in reporting the matter as put forth by the defence counsel, it has been held by the Supreme Court in the case of State of Himachal Pradesh v. Shree Kant Shekari2, wherein it was held that “delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information Report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authority. It only puts the court on guard to search for and consider if any explanation has been offered for the delay.” Once it is offered, the court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay. It is a relevant factor. On the other hand, satisfactory explanation of delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. 1 2014 (59) OCR 377 2 AIR 2004 SC 4404 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 11 of 13 18. It has been held by the Apex Court in the case of State v. Gurprit Singh3, that “the courts cannot overlook the fact that the sexual offenses delay in lodging F.I.R can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honor of her family.” In the instant case, though the incident took place on 03.10.2011 and the F.I.R was lodged by the informant before the police station on 26.09.2011, but the informant in his F.I.R so also in his evidence before the court has categorically stated that he informed the matter to the village gentries, a meeting was held in his village and accused attended the meeting. Since the matter could not be settled in the said meeting and the village gentries advised him to take shelter of the court, thereafter he had lodged F.I.R before the police station. In view of the above decision of the Apex Court and as there is satisfactory explanation regarding delay in filling the complaint case before the court and registering the same as F.I.R by the police, the prosecution case cannot be discarded and falsified. 19. Taking into consideration the above settled position of law and as the evidence of prosecutrix has been corroborated by other witnesses, therefore it is felt that, the prosecutrix version cannot be disbelieved and is to be accepted. In view of the foregoing discussion, it is crystal clear that the accused Pitambar Bhati had committed sexual intercourse with the victim against her will and without her consent, Hence, from the forgoing discussion of facts and of evidence, it is established that Signature Not Verified 3 AIR 1996 SCC 1393 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 12 of 13 the prosecution has been able to prove the charge of rape committed by the accused on the victim without her consent and against her will and by threatening her, beyond all reasonable doubt and to hold the accused guilty in this case. 20. With respect to the aforesaid discussion, this Court is not inclined to quash the judgment of conviction and order of sentence dated 20.12.2017 passed by the learned Asst. Sessions Judge, Kantabanji in S.C. Case No.8/20 of 2012-2013 and the judgment dated 17.11.2021 passed by the learned Addl. Sessions Judge, Kantabanji in CRLA No.02 of 2017 is maintained. 21. Accordingly, the CRLREV filed by the revisionist stands dismissed. Interim order passed earlier stands vacated. No order as to cost. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 19th April, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-May-2024 18:42:46 Page 13 of 13