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2000 DIGILAW 287 (ORI)

MANIA ALIAS MANOJ KUMAR BEHERA v. STATE OF ORISSA

2000-06-19

P.K.PATRA

body2000
JUDGMENT : P.K. Patra, J. - The appellant has challenged the judgment dated 15.12.1995 in Sessions Trial No. 201/25 of 1995 passed by Shri. K.V.C.Rao, Assistant Sessions Judge, Cuttack convicting the appellant u/s 376, Indian Penal Code (for short 'IPC') and sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/- in default, to undergo rigorous imprisonment for a further period of two months. The appellant has been found not guilty and acquitted of the charge u/s 363, IPC. 2. Prosecution case runs as follows : The informant (P.W.11) and the appellant are residents of Dagarpara-Bania Sahi, Cuttack. The families of the informant and the appellant were well acquainted and were in visiting terms. The victim girl was a minor aged about four to five years and is the niece of the informant, being the daughter of the informant's elder brother. The victim girl was daily going to her private tutor (P.W.4) for study and was returning to her house alone. It is alleged that on 27.12.1994 the victim girl went to the house of P.W.4 at 1.00 p.m. and was returning to her house at 3.00 p.m. after her study; and on the way the appellant met her and took her towards the embankment of the river Kathjodi and forcibly committed sexual intercourse with her and left her near her house. When the victim girl cried in the house due to pain in her private parts, the family members enquired from her and came to know that the appellant had forcibly committed sexual intercourse with her. Thereafter the informant (P.W.11) lodged a report before the Inspector-in-charge, Lalbag Police Station at 10.00 p.m. which was treated as First Information Report and the case was registered by the I.I.C. of the P.S. who directed the Sub-Inspector of the said P.S.(P.W.14) to investigate the case. Thereafter the informant (P.W.11) lodged a report before the Inspector-in-charge, Lalbag Police Station at 10.00 p.m. which was treated as First Information Report and the case was registered by the I.I.C. of the P.S. who directed the Sub-Inspector of the said P.S.(P.W.14) to investigate the case. P.W.14 during investigation examined the victim and the witnesses, visited the spot and seized the wearing apparels of the victim girl, sent her for medical examination, arrested the appellant and forwarded him to Court in custody after seizing the wearing apparels of the appellant and sending him for medical examination, seized the birth certificate of the victim, sent the wearing apparels of the victim and the appellant to the S.F.S.L., Bhubaneswar for 'Serologist's examination and after completion of investigation he submitted charge-sheet under Sections 363, 376, IPC against the appellant who stood his trial. 3. The plea of the appellant is one of denial and false implication. 4. In order to bring home the charge against the appellant, prosecution has examined sixteen witnesses. P.W. 15 is the victim girl whose age has been assessed to be six years and her statement was not recorded since she could not give rational replies to the questions put to her by the trial Judge. It appears that she was a student of Standard-I Class in the Ramadevi Sishu Vihar, Cuttack. P.W. 11 is the uncle of P.W. 15. P.W.4 is the private tutor of P.W. 15. P.W.1 is a resident of the same locality where the appellant and the victim resided. He has denied his knowledge regarding the occurrence in this case and has not supported the prosecution case. P.W.2 is a witness to the seizure but he has denied to have witnessed the seizure, though admitted his signatures on the two seizure-lists (Exts. 1/1 and 2/1). P.W.3 is also a resident of the same locality who has stated to have gone to the house of the informant after hearing about the occurrence. P.W.5 is a resident of the same locality who has stated to have seen the appellant and the victim girl climbing the embankment of the river and to have enquired from them as to where they were going to which the appellant replied that he was taking the girl to see the river water. P.W.5 did not support the prosecution case and turned hostile and has been cross-examined by the prosecution. P.W.5 did not support the prosecution case and turned hostile and has been cross-examined by the prosecution. P.W.6 denied his knowledge regarding the occurrence and turned hostile and has been cross-examined by the prosecution. P.W.3 is a post-occurrence witness. P.Ws. 7, 8, 9 and 10 are the witnesses to the seizure. P.Ws. 13 and 16 are the two medical officers who medically examined the victim girl. P.W. 14 is the Investigating Officer. The defence has examined none. 5. Miss D.R.Nanda, learned counsel for the appellant and the learned Additional Government Advocate were heard at length. The learned counsel for the appellant assailed the judgment impugned, contending that the learned Asst. Sessions Judge has failed to properly appreciate the evidence on record and has come to the erroneous conclusion that the appellant forcibly committed sexual assault on the victim girl and the judgment is unsustainable. Learned Additional Government Advocate supported the impugned judgment, refuting the contention of the learned counsel for the appellant. The rival contentions require careful consideration. 6. The learned Assistant Sessions Judge held that medical evidence, corroborated by the statements of P.Ws. 5, 11, 12, 13 and 16 would lead to the irresistible conclusion that the appellant forcibly committed sexual intercourse with the victim girl and accordingly he found the appellant guilty of the charge u/s 376, IPC and convicted him thereunder but he found that there is no sufficient evidence on record to convict the appellant u/s 363, IPC and acquitted him of the said charge. Therefore, the statement of the medical officers and P.Ws. 5, 11, 12, 13 and 16 require careful consideration. 7. Medical Officer (P.W. 13) has stated that on 27.12.1994 at 11.45 p.m. he examined the victim girl and found bleeding from the vagina, something stained to vagina which could not be ascertained. There was an abrasion measuring ?" x ?" over the neck (crycoid cartiledge). Ext. 6 is the injury report submitted by P.W. 13. P.W.16 stated that he examined the victim girl and found as follows : "(i) The hymen and posterior commisure were torn, looking red and inflammed, oedematus associated with a serosanguinush discharged soiling the vaginal introitus; (ii) No seminal stains have been detected on the genitals. Ext. 6 is the injury report submitted by P.W. 13. P.W.16 stated that he examined the victim girl and found as follows : "(i) The hymen and posterior commisure were torn, looking red and inflammed, oedematus associated with a serosanguinush discharged soiling the vaginal introitus; (ii) No seminal stains have been detected on the genitals. However, the serosanguinush discharge soiling the vaginal introitus was present; (iii) No foreign hairs or any foreign materials could be recovered from the genital of the victim girl; (iv) As per the ossification test the age of the victim girl was above 8 years and below ten years; (v) Considering the genital findings, it could be opined that a forceful sexual intercourse cannot be ruled out; (vi) During examination, the victim girl neither complained any pain on the neck. However, no external injuries could be detected on her neck; (vii) The wearing frock and chadi by the victim girl on examination revealed some stains which appears to that of seminal stain and stains of mixed blood and seminal fluid. Both the garments have been sent to State F.S.L. for examination and confirmation." Ext. 8 is the report submitted by P.W. 16. He also stated to have examined the appellant on the same day and found as follows : "(i) No stains of any nature could be detected on the genital of the accused; (ii) No injuries could be detected on the genital or on surrounding body parts of the accused; (iii) No loose hairs or foreign hairs or any foreign materials could be recovered from the genital or from the surrounding portions of the accused; (i v) There, was no finding suggestive of sexual intercourse within last 24 hours; (v) There was nothing suggestive of that the accused was not capable of performing sex act; (vi) The abrasion injury on the left patella could have been caused by rubbing against any hard and rough surface and was within above 24 hours. Ext. 9 is the report submitted by P.W.16. Ext. 9 is the report submitted by P.W.16. P.W.5 has stated to have seen the appellant and the victim girl going together near the river embankment and according to him the appellant told him that he was taking the victim girl to see the river water.P.W.11 has stated to have submitted the FIR (Ext.4) and according to him the victim told him that the appellant took her to the 'Jhaun bana' on the river embankment and removed her 'chadi' and committed sexual intercourse on her. But P.W. 12, the mother of P.W.11 and grandmother of the victim has stated that to her query the victim did not tell anything and that the victim returned to the house at about 4.00 p.m. to 5.00 p.m. and that the appellant was held up by some boys of Dagarpara and on being asked, he denied to have committed any offence on the victim. 8. The victim girl (P.W. 15) was a student of Standard-I and her statement has not been recorded on the finding that she was not able to give rational replies to the questions put to her. In a case of this nature where the victim girl's statement has not been recorded, it is to be considered whether a conviction can be sustained on the medical evidence with some corroboration or not. The Medical Officer (P.W. 13) who examined the victim girl at 11.45 p.m. on the same day, found bleeding from the vagina of the victim girl but she has not expressed any opinion regarding the injuries found on the victim and she has admitted that her examination of the victim was not in accordance with the points raised in the requisition for medical examination. Hence the statement of P.W. 13 cannot be of any help to the prosecution. The statement of the said Medical Officer (P.W. 16) reveals that he examined the victim girl on the next date and ossification test reveals that the victim girl was aged above 8 years and below 10 years. He opined that considering the genital findings, forcible sexual intercourse cannot be ruled out. But strangely enough, he did not find any injury on the neck of the victim girl, though the other Medical Officer (P.W. 13) found an abrasion above the neck. He opined that considering the genital findings, forcible sexual intercourse cannot be ruled out. But strangely enough, he did not find any injury on the neck of the victim girl, though the other Medical Officer (P.W. 13) found an abrasion above the neck. According to P.W. 16 he found some stains appearing to be of semen and mixed blood of semen fluid on the frock and chadi of the victim girl and he directed that both the garments should be sent to the S.F.S.L. for examination. But the report of the Chemical Examiner (Ext.7) reveals that the Chadi and frock of the victim had stains of semen in patches, but had no blood-stains which suggested that he secretor needed confirmation by direct blood group test and that full pant and full shirt of the appellant did not contain any blood-stain or semen stain. Further it revealed that as no hairs were sticking to wearing apparels sent to the chemical examiner (i.e. Chadi and frock of the victim girl) the question of examination and comparison of the public hairs sent to the chemical examiner did not arise. The seized wearing apparels of the victim (Chadi and frock) as also the wearing apparels of the appellant (full pant and full shirt) have not been produced in Court for identification. The medical examination report in respect of the appellant (Ext.9) reveals that there were no findings suggestive of sexual intercourse within last twenty-four hours. The alleged occurrence took place on 27.12.1994 at about 3 p.m. to 4 p.m. and the appellant was medically examined at 2 p.m. on 28.12.1994. Further, as per Ext. 9, no stains of any nature could be detected on the genitals of the appellant, no injury could be detected on the genitals or. the surrounding body parts, no loss of hair or foreign hair or any-foreign material could be recovered from the genitals or the surrounding portions of his body. The medical examination report (Ext.8) relating to the victim girl reveals that no injury could be detected on the person of the victim girl. Further, no foreign public hair was found sticking to her genitals, no stain of blood or semen could be detected on the external surface of the genitals, the labia majora was intact, the labia minora was intact, the vestibulae and the vaginal introitus looked bruised and redened. Further, no foreign public hair was found sticking to her genitals, no stain of blood or semen could be detected on the external surface of the genitals, the labia majora was intact, the labia minora was intact, the vestibulae and the vaginal introitus looked bruised and redened. It was inflamed and vedematus with discharge of serosanguinus fluid which was soiling the vaginal introitus. The posterial commissure was torn and bleeded on touch. The fourchette was intact.The hymen was a thin hole of mocule membrance with its opening of about 0.5 cm. diameter not even allowing the tip of the little finger and there was tear on the 11 O' clock position which looked red, inflamed and bleeded on touch. Had this been so, the wearing Chadi and frock of the victim girl would have been stained with blood and not with semen. But as per the chemical examiner's report (Ext.7) only stains of semen in patches could be detected on the Chadi and frock of the victim and no blood-stain was detected. The marks of semen were not detected on any part of the body of the victim girl during her medical examination or on any part of the appellant during his medical examination. Thus it is found that the chemical examiner's rpeort is not consistent on material particulars with the medical evidence on record. Hence it will not be safe to come to a definite conclusion that the victim girl was subjected to sexual intercourse by the appellant. 9. In the case of Dona alias Rishi Kapur v. State of Punjab, reported in (1993) 2 RCR 459 it has been held that non-recording of the statement on oath of the victim girl aged about 5 years by the Magistrate would not be fatal when the victim girl was not fit to make statement on oath and in such case offence of rape could be proved on medical and other evidence. In the present case, like the case referred to above, the statement on oath of the victim girl aged about six years has not been recorded by the Assistant Sessions Judge holding that the victim girl was not capable of giving rational answers to the questions put to her when she was in the witness box. In the present case, like the case referred to above, the statement on oath of the victim girl aged about six years has not been recorded by the Assistant Sessions Judge holding that the victim girl was not capable of giving rational answers to the questions put to her when she was in the witness box. But as discussed earlier in the present case, the medical evidence, the chemical examiner's report and the other evidence are not cogent and convincing to reach the conclusion that the offence of rape has been proved against the appellant. The other circumstances casting grave doubt on the prosecution case against the appellant are as follows : (i) P.W. 12, the grand mother of the victim girl, has stated that the victim girl did not tell anything to the query of the family members. (ii) The parents of the victim girl have been withheld from the witness-box. (iii) P.W. 11, the uncle of the victim girl, though stated that when he returned to his residence at 6.30 p.m. the victim girl told him that the accused took her to the ' Jhaun Bana' near the embankment of river Kathjori, undressed her chadi and committed sexual intercourse with her, no family member of the victim has come forward to corroborate this statement and as such it will not be quite safe to place reliance on P.W.11. (iv) P.W.4, the private tutor of the victim girl, stated to have learnt from some person about the rape committed by someone on the victim girl, but she did not rush to the house of the victim girl to enquire as to what happened. (v) The local boys who allegedly detained the appellant in the Club House after the occurrence have not come forward to depose against the appellant. The parents of the victim girl who could have been material witnesses for the prosecution have also not been examined and hence non-examination of such material witness will adversely affect the prosecution case. (v) The local boys who allegedly detained the appellant in the Club House after the occurrence have not come forward to depose against the appellant. The parents of the victim girl who could have been material witnesses for the prosecution have also not been examined and hence non-examination of such material witness will adversely affect the prosecution case. (vi) The 'Jhaun Bana' near the embankment of river Kathjori is situated not at a far off place which is clearly visible from the roads running on two sites of it and the roads are frequented by pedestrians and had the appellant committed rape on the victim girl at about 3 to 4 p.m., the pedestrians could have noticed the some and could have immediately apprehended the appellant but no pedestrian has come forward to stat to have witnessed the crime committed by the appellant. (vii) The wearing apparels of the victim girl and those of the appellant which had been sent for chemical examination and serological examination have not been produced in Court for identification by the witnesses. Hence, non-production of the seized material objects will adversely affect the prosecution case since it cannot be definitely held that the wearing apparels of the victim girl as well as those of the appellant had been seized and sent for chemical and serological examination. (viii) No external injury on the body of the appellant or on the body of the victim girl was noticed though they were medically examined immediately after the alleged occurrence on the very day. 10. In view of the discussions made above, it is to be held that the conclusion arrived at by the learned Assistant Sessions Judge relying on the statements of P.Ws. 5, 11, 12, 13 and 16 as also the medical, chemical and serological examination reports is erroneous and cannot be sustained. Consequently, the conviction of the appellant cannot be sustained and is liable to be set aside. 11. In the result, the Jail Criminal Appeal is allowed. The conviction of the appellant u/s 376, IPC and the sentence inflicted against him in the impugned judgment dated 15.12.1995 passed by the Assistant Session Judge, Cuttack in Sessions Trial No. 201/25 of 1995 are set aside. The appellant is found not guilty and is acquitted of the charge. He be set at liberty forthwith if his detention is not required in any other case. The appellant is found not guilty and is acquitted of the charge. He be set at liberty forthwith if his detention is not required in any other case. Final Result : Allowed