The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.586 of 2020 (An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 against the judgment dated 12.02.2020 passed by Shri J.P. Mohanty, Special Judge(POCSO), Ganjam, Berhampur in G.R. Case No.117 of 2017 arising out of Jagannath Prasad P.S. Case No.106 dated 24.08.2017) Nanda Naik @Susanta Kumar Naik -versus- …. Appellant State of Orissa …. Respondent For Appellant : Mr. B. Patnaik, Advocate For Respondent : Mr. B.P. Nayak, AGA CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:03.12.2024(ORAL) G. Satapathy, J. 1. This criminal appeal is directed against the impugned judgment dated 12.02.2020 passed by the learned Special Judge, POCSO-cum-2nd Addl. District and Sessions Judge, Berhampur in G.R. Case No. 17 of 2017 convicting the appellant for commission of offences punishable U/Ss. 451/376(2)(i) of Indian CRLA No.586 of 2020 Page 1 of 14 Penal Code, 1860 and U/S. 4 of Protection of Children from Sexual Offences Act, 2012 (In short the “POCSO Act”) and sentencing the convict to undergo Rigorous Imprisonment(RI) for 10 years and to pay a fine of Rs. 10,000/- in default whereof, to suffer RI for further period of 6 months for offence U/S. 376(2)(i) of IPC and to undergo RI for 1 year and to pay a fine of Rs. 1,000/- in default whereof, to suffer RI for further period of 15 days for offence U/S. 451 of IPC while preferring not to award any separate sentence to the convict for commission of offences punishable U/S. 4 POCSO Act in view of the provision of Sec.42 of POCSO Act. The aforesaid sentence was further stipulated to run concurrently. 2. The prosecution case in nutshell is that on 22.08.2017 in between 1PM to 2PM, when the victim who was student of Class-X then returned to her home to take lunch during recess hour, the convict finding the victim alone trespassed into the house and forcibly undressed the victim and made her lay on the ground and committed rape upon the victim. CRLA No.586 of 2020 Page 2 of 14 When the younger brother of the victim knocked the door, the convict fled away and the victim opened the door and narrated the incident to her younger brother. Subsequently, after two days of the
Legal Reasoning
occurrence, the mother of the victim lodged an FIR before the IIC Jaganath Prasad PS under Ext.7 paving the way for registration of Jaganath Prasad PS Case No. 106 of 2017 and commencement of the investigation by PW8 Ambika Benia who in the course of investigation finding prima facie case against the convict submitted charge sheet against him for commission of offence punishable U/Ss. 451/376(2)(i) of IPC and 4 POCSO Act. Accordingly, cognizance of the aforesaid offences was taken and the trial ensued, when the convict denied to plead guilty to the charge for commission of aforesaid offences. 2.1. In the course of trial, the prosecution examined altogether 9 witnesses and exhibited 17 documents in evidence as against no evidence whatsoever by the defence in support its case. The CRLA No.586 of 2020 Page 3 of 14 plea of the convict-appellant in the course of trial was denial simplicitor and false implication. 2.2. After hearing the learned counsel for the parties upon perusal of the evidence on record, the learned trial Court by the impugned judgment convicted the appellant for offences U/Ss. 451/376(2)(i) of IPC and U/S 4 of POCSO Act, and sentenced him to the punishment indicated in the first paragraph. Being aggrieved, the appellant has preferred this appeal. 3.
Legal Reasoning
In the course of hearing of the appeal, Mr. Biswanath Patnaik, learned counsel for the Appellant mainly confines his submission on two aspects; firstly, on merits and secondly, on the quantum of sentence. In elaborating the claim of appellant on merits, Mr. Patnaik submits that not only the FIR was lodged after delay of two days which was not been explained properly by the prosecution, but also the medical examination report falsifies the commission of rape upon the victim and the present case is the outcome of denial of marriage by the accused- CRLA No.586 of 2020 Page 4 of 14 appellant to the proposal of the father of the victim who has admitted in his evidence such fact and thereby, when the evidence on record is taken cumulatively on the backdrop of aforesaid fact and circumstance, the convict-appellant is entitled for an acquittal, but the learned trial Court on wrong appreciation of evidence has returned with a finding that the appellant is guilty of the offences and, accordingly, sentenced him to the punishment which is unsustainable in the eye of law and the appeal deserves to be allowed. Alternatively, Mr. Patnaik by drawing attention of the Court to the provision of Sec. 42 of the POCSO Act, submits that if an act of the accused is punishable under two statutes, more particularly, if such act of the accused is punishable under POCSO act out of the two statutes, the punishment that has been provided with greater degree has to be imposed on the convict, but in this case the offence U/S. 376(2)(i) is not included in Sec. 42 of the POCSO Act and thereby, the punishment provided for commission of Sec.4 of POCSO Act can CRLA No.586 of 2020 Page 5 of 14 be awarded to the convict in this case, but taking into account the long custody of the appellant and his tender age at the time of commission of crime together with other mitigating factors, the minimum sentence as provided in Sec. 4 of POCSO Act may be imposed on the convict in this case since the object of punishment is not to finish the criminal, but to put out the crimes and in the event, some leniency is extended to the appellant-convict, it would give a great message to the family of the convict who are deprived of the love, affection and care of the convict. Mr. Patnaik ultimately prays to reduce the sentence to the period already undergone since the convict has already undergone more than a sentence of 7 years which is the minimum sentence prescribed for 4 POCSO Act. 4. On the contrary, Mr. B.P. Nayak, learned AGA, however, strongly opposes such prayer of the appellant by contending inter-alia that not only the evidence of the victim inspires confidence, but also the entire evidence on record clearly establishes the CRLA No.586 of 2020 Page 6 of 14 guilt of the convict for commission of offence U/Ss. 376(2)(i) and 4 POCSO Act and the learned trial Court has rightly sentenced the convict to the minimum punishment as prescribed under 376(2)(i) which is 10 years in view of the fact that Sec. 42 of POCSO Act only provides punishment to the convict found guilty of offence which prescribes punishment in greater degree. Mr. Nayak, accordingly, prays to dismiss the appeal. 5. In addressing the rival contention of the parties, this Court considers it appropriate to peruse the evidence on record, but in a case of rape or penetrative sexual assault, the evidence of the victim requires paramount consideration because it is the victim who can narrate about the incident that has happened to her and in this case, the victim having been examined in the trial has reiterated that on the alleged date of occurrence, she had come to the School at about 10AM, but during recess at about 1PM, she returned home to have her lunch, but her parents had gone out for work and there was no one CRLA No.586 of 2020 Page 7 of 14 else in the house. It is her further evidence that the accused came from the backyard of her house and forcible undressed her and laid her down on the ground and committed rape against her will. This being the substratum of evidence in examination–in- chief, this Court considers it wise to look her evidence in cross-examination, but the aforesaid evidence of the victim in her examination–in-chief was never been demolished in the cross-examination by the defence, rather the defence has acknowledged the commission of rape by eliciting from the victim that she cried when the accused was committing rape on her and there was no tear in her school uniform due to commission of rape on her and her inner garments was stained with semen of the accused and said inner garment was handed over to the Police. 6. Further, the age of the victim was never challenged in her cross-examination nor any suggestion was given to the victim that she was more than 16 or 18 years. Only positive suggestion was given to the victim that in their caste, girls get CRLA No.586 of 2020 Page 8 of 14 married at the age of 11 to 12 years and she does not know if her parents had requested the accused to marry her. It is also brought in cross-examination that whether she knows the accused and accordingly, the victim identified the accused. On coming back to the evidence of other witness with regard to age of the victim, it appears that the Doctor who examined the victim, has been examined as PW1 and she had stated that considering her physical findings, dental examination, secondary sexual character and radiological findings, the age of the victim was above 14 years and below 16 years with a central tendency of 15 years as on the date of her examination. No substantial cross-examination of PW1 was made with regard to the age of victim. Further, the mother of the victim was being examined in this case, who had stated the age of the victim to be 15 years, but it was never denied by the defence in cross-examination. Moreover, the age of the victim has been proved by PW5-cum-the School Headmaster to be 09.02.2003 which was never denied by the defence in cross- CRLA No.586 of 2020 Page 9 of 14 examination and, therefore, the age of the victim would be less than 16 years as on the date of occurrence on 22.08.2017. Thus, on a cumulative assessment of the evidence on record, it is found that the prosecution has established the age of the victim to be less than 16 years and the evidence of the victim, however, goes to reveal that the convict had committed sexual act upon her and thereby, his guilt for offences U/Ss. 376(2)(i), which prescribes punishment for rape on a woman when she is under 16 years of age and 4 of POCSO cannot be legally disputed. 7. Although the learned defence counsel has taken the plea that no injury was found on the private part of the victim, but finding of injury on the private part of the victim is not sine-qua-non to constitute the offence of rape. Moreover, the plea as suggested by the defence in the cross-examination that this case has been foisted because of refusal of the appellant to marry the victim appears to be improbable. Even for a moment, taking into account CRLA No.586 of 2020 Page 10 of 14 the consent of the parties, since the victim is found to be less than 16 years, her consent cannot be termed as valid consent to exclude the act of the convict- accused for commission of rape. On a careful scrutiny of the evidence on record, in particular the evidence of the victim and taking into account the other supporting evidence as laid by the prosecution, this Court does not find any error apparent on the findings of the learned trial Court with regard to guilt of the convict for the offences, since it is established by the prosecution by way of leading clear and cogent evidence that the accused had committed sexual act upon a minor girl aged about less than 16 years and, therefore, the offences U/Ss. 376(2)(i)/451 r/w Sec. 4 of POCSO Act is squarely established against the convict by the prosecution and such finding of the learned trial Court calls for no interference. 8. In coming back to the alternative submission for reduction of sentence as advanced for the appellant, this Court considers it appropriate to CRLA No.586 of 2020 Page 11 of 14 extract the provision of Sec. 42 which reads as under:- “42 Alternate punishment-Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, [376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.” The aforesaid provision makes it ample clear that if the act of an accused is found punishable under the aforesaid Sections as stated under IPC and under POCSO Act, the greater punishment prescribed for the offence in the act has to be taken into account while sentencing the convict. In this case, the learned counsel has of course submitted that Sec. 376(2)(i) is not included in Sec.42 of the POCSO Act, but the mandate and provision of the POCSO Act itself suggests that the punishment as provided in greater degree has to be taken into consideration while CRLA No.586 of 2020 Page 12 of 14 awarding the sentence and in this case at the relevant time the minimum punishment prescribes in 376(2)(i) was more than that has been prescribed in 4 POCSO Act and thereby, the punishment prescribed for 376(2)(i) can be taken into consideration while awarding appropriate punishment, since “Mercy to guilty is cruelty to innocent” which has been said once by Adam Smith, an eminent Scottish Economist and Philosopher in his book “Theory of Moral Sentiments”. In this case, of course, the convict was of tender age at the time of commission of crime, but the learned trial Court has taken into account the age of the convict as well as the other factors while awarding sentence and thereby, the learned trial Court has awarded minimum punishment prescribed for offence U/S. 376(2)(i) of the IPC which prescribes minimum punishment RI for a term which shall not be less than 10 years, but which may extend to imprisonment for life and thereby, the punishment as awarded by the learned trial Court cannot be considered to be excessive so as to warrant CRLA No.586 of 2020 Page 13 of 14 interference in this appeal. Further, the impugned order suggests that the learned trial Court has recommended the victim for victim compensation and thereby, no need to pass any order with regard to grant of compensation to the victim for the crime committed upon her. 9. In the result, the criminal appeal being devoid of merit stands dismissed on contest, but in
Decision
the circumstance, there is no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 3rd day of December, 2024/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 06-Dec-2024 19:27:27 CRLA No.586 of 2020 Page 14 of 14