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2004 DIGILAW 103 (ORI)

Shyam Sundar Behera v. State of Orissa

2004-02-20

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — This appeal is directed against the judgment and order dated 15.4.1999 passed by the learned Assis¬tant Sessions Judge-cum-C.J.M., Bolangir in Sessions Case No. 13-B/2 of 1998 convicting the appellant for commission of offence under Section 376 of the Penal Code and sentencing him to impris¬onment for ten years and fine of Rs. 2000/-, in default, to undergo further R.I. for one year. 2. The case of the prosecution is that the victim girl, her mother, younger sister and younger brother were staying in their own house at Kulthipali. Since 1992 the father of the victim was serving sentence in a dacoity case and was therefore not staying with the victim and her other family members at the time of occurrence. On the date of occurrence, the mother of the victim, her younger sister and younger brother had gone Nuapali but did not come back home at night. Since the victim was alone at home, she closed all the doors and slept inside. At about 10.00 P.M. having heard the sound of someone walking in the verandah and sound of the light being switched off, she came out of the room to the verandah to verify with a lamp in her hands. She saw the appellant trying to open the back side verandah and since the victim knew him, she asked the appellant as to why he was trying to enter into the house. It is further alleged that all on a sudden the appellant caught hold of her, shut her mouth by putting hand, threatened her and forcibly laid her on the ground, committed rape by force and decamped by scaling over the back side wall. On the next day when the mother and younger brother of the victim came back home, she narrated the entire incident to her mother and her mother raised hulla in the village and went to the bus stand to proceed to Bolangir for lodging a report. At about 2.30 P.M. the younger brother of the victim girl came to the bus stand to ascertain as to whether the mother of the victim went to Bolangir or not, but found the broken bangles and chappals of his mother lying on the road near the bus stand. Thereafter, he collected those materials and returned home cry¬ing. At about 2.30 P.M. the younger brother of the victim girl came to the bus stand to ascertain as to whether the mother of the victim went to Bolangir or not, but found the broken bangles and chappals of his mother lying on the road near the bus stand. Thereafter, he collected those materials and returned home cry¬ing. The mother of the victim did not return home till next day morning as a result of which the victim came to Bolangir on 24.12.94 to the house of her maternal uncle to ascertain about her mother, but did not find her there. The victim thereafter went to the Police Station with her maternal uncle and lodged the F.I.R. On the basis of the allegations made in the F.I.R., inves¬tigation was taken up and charge sheet was submitted for commis¬sion of offence under Section 376 of the Penal Code. The plea of the appellant is one of denial. 3. The prosecution in order to bring home the charge examined as many as nine witnesses, but no witness was examined on behalf of the defence. P.W.1 is a co-villager of the appellant as well as the victim, but he did not support the prosecution case during his examination before the Court. P.W.2 who is also a co-villager did not support the prosecution case. P.W.3 is the doctor who examined the victim with regard to her age and he was of the opinion that the victim was below 18 years of age. P.W.4 is also a co-villager who turned hostile at the time of his examination. P.W.5 is the doctor who examined the victim with regard to commission of rape, but did not find any sign of rape. P.W.6 is the victim herself who has stated in her deposition that on 22nd December, 1994 her younger sister, younger brother and mother had gone to village Nuapali to the house of her elder sister but did not return home in the night and she was sleeping in the house alone by closing all the doors. At about 10.00 P.M. she heard the sound of someone moving in the inner verandah and also heard the sound of switching off the light on the verandah. At about 10.00 P.M. she heard the sound of someone moving in the inner verandah and also heard the sound of switching off the light on the verandah. When she came out of the room to verify, the appellant caught hold of her, closed her mouth by putting his left hand and by the right hand he tried to throttle her. The victim tried to separate herself but she could not succeed. The appellant is alleged to have threatened her to kill and out of fear she kept quiet. Thereafter, the appellant is alleged to have forcibly laid her on the ground and committed rape. At the time of commission of rape, the left hand of the appellant slipped from her mouth and she shouted calling one Parama Pradhan, who was a neighbour. Therea¬fter, the appellant left her and fled away by scaling over the back side wall. She further stated in her deposition that after her mother came back on the next day, she narrated the F.I.R. story as stated earlier. P.W.7 is the maternal uncle of the victim who has also supported the prosecution case. P.W.8 is the I.O. and P.W.9 is the doctor who has proved the X-ray film and other documents. 4. The learned counsel Shri Sahoo appearing for the appellant submitted that there is no evidence on record except the statement of the victim girl with regard to commission of rape and, therefore, without any corroboration from any other quarter, the appellant could not have been convicted for commis¬sion of the offence under Section 376 of the Penal Code merely on the statement of the prosecutrix. Shri Sahoo further submitted that the victim has developed the story at the time of her exami¬nation in Court though certain allegations made during her exami¬nation did not find place in the F.I.R. He also referred to some contradictions in the deposition of the victim and submitted that the victim cannot be relied upon entirely for the purpose of conviction in absence of any corroborative material. The learned counsel for the State on the other hand, submitted that even though the medical evidence does not support the prosecution case of rape, there is nothing to disbelieve the prosecutrix and the contradictions pointed out by the learned counsel for the appel¬lant are irrelevant for the purpose of the case and, therefore, since the prosecutrix evidence is believable and trustworthy, in absence of any corroboration from any other quarter also, convic¬tion under Section 376 would lie. 5. P.W.3, the doctor who examined the victim, has opined that the age of the victim was below 18 years. The I.O. (P.W.8) in his cross-examination has admitted that he had not verified the School Admission Register to know the exact age of the victim and in absence of any other material on record, the doctor’s evidence is accepted and the age of the victim has to be taken as below 18 years. It also appears from the cross-examination of the victim that the date of birth as mentioned in the Matriculation Certificate is 5.5.88 and, therefore, her age at the time of occurrence was below 18 years as found by the doctor. P.W.6, the victim herself has supported the prosecution allegations in its entirety. Shri Sahoo, the learned counsel referring to the evi¬dence of the doctor submitted that though the victim in the F.I.R. has alleged that the appellant caught hold of her, gagged her mouth by hand, threatened her and after laying her on the ground forcibly committed rape, during her examination in Court she developed the story to say that she tried to free herself from the clutches of the appellant and at the time of commission of rape the left hand of the appellant slipped from her mouth and she shouted for help by calling one Parama Pradhan, who is a neighbour. Though the submission of the learned counsel, is found to be correct, on verification of the record, I am of the view that the so-called development in the story does not affect the veracity of the statement of the victim that the appellant had committed rape on her forcibly when she was alone in the house. Though the submission of the learned counsel, is found to be correct, on verification of the record, I am of the view that the so-called development in the story does not affect the veracity of the statement of the victim that the appellant had committed rape on her forcibly when she was alone in the house. The victim was cross-examined at length and nothing has been brought out from the cross-examination to disbelieve the statement of this witness though much reliance was placed by the learned counsel for the appellant on the medical evidence to show that no such occurrence had taken place, I find that the occur¬rence took place on 22nd of December, 1994 and the victim was examined on 25th December, 1994 i.e. three days after. The doctor has also stated in his evidence that usually in the case of examination two to three days after sexual intercourse, spermato¬zoa is not found in the vagina and no foreign body materials is also detected. In rare cases spermatozoa either living or dead remain up to seven days. In normal cases it can be detected within 48 hours. 6. Considering such evidence of the doctor, it is natural that no sign of rape could be found on the victim as she was examined more than 48 hours after the occurrence. There being nothing to disbelieve P.W.6, the victim herself, and the contra¬dictions pointed out by the learned counsel not being very mate¬rial, I do not find any reason to disbelieve this witness. Since the version of the victim appears to be true and trustworthy, in absence of the medical report in support of her case, conviction for commission of offence under Section 376 of the Penal Code appears to be reasonable. 7. The appellant was about 27 to 28 years of age at the time of occurrence and was young man at the relevant time. The sentence imposed by the trial Court appears to be little exces¬sive and I, therefore, direct that while confirming the order of conviction under Section 376 of the Penal Code, the sentence is reduced to six years R.I. and fine of Rs. 2000/-, in default, to undergo further R.I. of six months. With the aforesaid modification in the sentence, the Crimi¬nal Appeal is dismissed. Crl. Appeal dismissed.