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2006 DIGILAW 440 (ORI)

Ananda Palei v. State of Orissa

2006-06-20

J.P.MISRA

body2006
JUDGMENT J. P. MISRA, J. : A girl aged ten years of village Pedagadi in the district of Mayurbhanj suffered from ignominy being raped by the accused-appellant on 27.5.1997 in the afternoon at about 1 P.M. On the above allegation, the trial commenced against the appellant and one Sashi Patra (since acquitted) and ended in conviction under Section 376(2) (f) of the Indian Penal Code (in short, “I.P.C.”) passed by the learned Asst. Sessions Judge, Udala in S.T. Case No.15/17 of 1997, wherein he was sentenced to undergo R.I. for ten years under Section 376 (2) (f), I.P.C. and to pay a fine of Rs.20,000/-, in default, to undergo further R.I. for a period of two years, which has been challenged in this appeal. 2. In short, the factual aspect of the case is that the father of the victim, namely, Anjan Kumar Naik was suffering from colic pain and approached the accused-appellant to be cured by sorcery who had come to his village Pedagadi. Pursuant to the request of the informant (father of the victim), appellant per¬formed sorcery (Puja) in the house of the victim in presence of the other accused Sashi Patra (since acquitted). During the course of the Puja, the wife of the informant and the victim girl were also there. The appellant called the minor girl to come inside the room, closed the door and committed rape on her on the pretext of performing Puja. During the course of the sexual assault, the other accused Sashi Patra was standing outside the room. After some time, the girl came out and conveyed her trauma to her mother. The incident was reported before the O.I.C., Kaptipada who was available in the village in connection with some other case and prior to that, the accused had confessed his guilt before the villagers. The prosecution examined as many as 18 witnesses before the Court below. The learned Court below, while acquitting the other accused Sashi Patra, convicted the accused-appellant and punished him as indicated above relying on the evidence of P.Ws.1, 2, 3, 11 and 18 without accepting the denial pleas of the accused-appellant. 3. The prosecution examined as many as 18 witnesses before the Court below. The learned Court below, while acquitting the other accused Sashi Patra, convicted the accused-appellant and punished him as indicated above relying on the evidence of P.Ws.1, 2, 3, 11 and 18 without accepting the denial pleas of the accused-appellant. 3. Learned counsel for the appellant has assailed the judgment of the trial Court on the ground that the evidence of the prosecutrix should not have been believed because of the major contradiction appearing in her evidence and it is next contended that since there was no penetration and the hymen was not ruptured, the Court below erred in convicting the accused-appellant under Section 376 (2) (f). Learned counsel for the appellant alternatively prayed to convict the appellant under Section 354 IPC. On the other hand, the learned Additional Stand¬ing Counsel supporting the judgment of the Court below contended that there is absolutely no contradiction in the version of the prosecutrix which can be taken note of and he further contended that there was sufficient penetration causing injury to the private part of the victim and has drawn my attention to the evidence of P.W.18. 4. Before delving into the submissions, I may place it on record that tribal people of Mayurbhanj district fanatically believe in sorcery and taking advantage of the same, several persons are exploiting them. 5. In this male dominated society, the testimony of a prosecutrix who has lost her supreme honour, can be very well accepted as gospel truth, if it is not tinged with motive to implicate the male falsely. Of course, the Courts must satisfy their judicial conscience, i.e., attending circumstances, version of the prosecutrix and the medical evidence. Even if in certain cases there may not be injury on the part of the victim where consent is taken at the point of dagger and she might have suc¬cumbed to the lascivious intent of the male without will. The prime reason in India compelling the victim not to disclose such an occurrence before her family much less to the police is owing to the stigma which she shall be carrying throughout her life in case of disclosure. The women in India have a trend to conceal such offence because it involves their prestige as well as the prestige of their family. Keeping all the aforesaid in mind, the case needs to be approached. The women in India have a trend to conceal such offence because it involves their prestige as well as the prestige of their family. Keeping all the aforesaid in mind, the case needs to be approached. 6. Learned counsel appearing for the accused-appellant has pointed out the contradiction appearing in the testimony of the prosecutrix (P.W.3). According to the learned counsel, the ver¬sion of P.W.3, i.e., “My mother asked me as to what happened and I told my mother that the accused PANT KHULIKI KALA-KANTA ANIBAKU PATHEICHI.” has not been stated before the I.O. for which her testimony should be completely disregarded. It is found that the same statement has not been confronted to the I.O. Therefore, it is no contradiction at all. Further, P.W.3 has stated that “the accused removed my cloths and MOTE KALA” and the same fact she has disclosed to her mother almost immediately after the occur¬rence. Though the prosecutrix has been thoroughly cross-examined, nothing has been elicited to disbelieve her testimony and she withstood the cross-examination being a minor girl aged 10 years. Though no corroboration is required to the version of the prose¬cutrix, still then to satisfy the judicial conscience, other evi¬dence on record are to be scanned. 7. The evidence of the parents P.Ws.1 and 2 transpires that the accused-appellant and his companion Sashi Patra went to the house of the informant Anjan Kumar Naik on his request to cure him by performing Puja/sorcery. The informant denied to the response of the Puja/sorcery in curing him whereafter the ac¬cused-appellant took the girl inside the room and committed rape on her. P.W.3 was threatened by the accused by giving her caution not to disclose the occurrence to any one and if she discloses, her father will not be free from the disease. Further, the evi¬dence of P.W.4 reveals that the appellant (so called Gunia) con¬fessed before him and the villagers to have committed rape. Further, it has been brought out in the cross-examination from the mouth of P.W.4 that the appellant was neither under any pressure nor was he assaulted while he was produced by P.W.1 before him and the other villagers. It goes without saying that in case of immediate detection, all the culprits confess even without reposing any confidence on the villagers for the reason that the crime speaks for itself. Finally, the evidence of doc¬tors, i.e., P.Ws. It goes without saying that in case of immediate detection, all the culprits confess even without reposing any confidence on the villagers for the reason that the crime speaks for itself. Finally, the evidence of doc¬tors, i.e., P.Ws. 11 and 18, clinches the case of the prosecution firmly pointing out the guilt of the accused beyond reasonable doubt. It is quite clear from the evidence of P.W.11 and Ext.6 that the accused was a man of 35 years at the time of occurrence and was capable of performing the act and causing injury to the private part of the victim. 8. Learned counsel for the appellant has relied on a decision of this Court in Danardan Patra v. State of Orissa, 2002 (II) OLR 443 , and contended that since there was no penetration in the present case, the accused may be convicted under Section 354 I.P.C. The aforesaid contention cannot be accepted for the reason that in the cited case, there was absolutely no penetra¬tion and this Court concluded the same relying on the evidence of the doctor and his report. Rather, the case referred to by the learned counsel for the appellant indicates that slight penetra¬tion would not rupture the hymen. Here. I may mention that though penetration is the sine qua non to constitute an offence under Section 375 I.P.C., the depth of the penetration is immaterial so also the rupture of the hymen. Once it is found that dangling anatomy (virile member of male) touching the orifice in erected position is sufficient to constitute rape, it is not necessary that the seminal fluid has to flow and the hymen must be rup¬tured. According to the Lyon’s Medical Jurisprudence for India (Tenth Edition) at page 415, at times hymens are ruptured only during delivery. The exact language thereof is quoted below : “Many cases are recorded, infact, where the hymen has exist¬ed all through pregnancy, and has only ruptured at the time of delivery. In very young children the hymen,owing to its deeply seated position, and to the narrowness of the parts, is not usually even lacerated by attempted intercourse.” In view of the above authority, the evidence of P.W.18 along with the evidence discussed above brings home the charge against the accused-appellant. 9. In very young children the hymen,owing to its deeply seated position, and to the narrowness of the parts, is not usually even lacerated by attempted intercourse.” In view of the above authority, the evidence of P.W.18 along with the evidence discussed above brings home the charge against the accused-appellant. 9. According to Ext.12, the girl was aged about 10 years at the time of occurrence and had not attained her puberty and consequently was not competent for sexual intercourse. The doctor has spoken in her evidence as well as in Ext.12 that the vulva of the girl was abraded and oedematous. She has also found that the vaginal discharged was tinged with blood. The lateral vaginal wall was fond with fine achymoses and according to her evidence, the age of the injuries were within 12 to 24 hours, i.e., corre¬sponding to the time of the occurrence. In my considered opinion, the injuries found by P.W.18 were bound to appear in the pro¬creating organ of a minor girl in case of forceful penetration and in this case, the appellant is its author. 10. In view of the above analysis, I do not find any merit in this appeal and the same is accordingly dismissed. Appeal dismissed.