Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 139 (ORI)

Pawan Kumar Prasad v. State of Orissa

2014-02-21

DEBABRATA DASH

body2014
JUDGMENT : ” The appellant in this appeal has called in question the judgment and conviction passed by the Learned Ad hoc Additional District and Sessions Judge, FTC, Rourkela in ST Case No. 163/30 of 2003 from inside the jail. 2. By the aforesaid judgment the appellant has been convicted for committing offences u/S.376(2) and 366-A of I.P.C and accordingly has been sentenced to undergo rigorous imprisonment for a period of 10 years followed by payment of fine of Rs.20,000/- in default to undergo rigorous imprisonment for six months for offence u/S.376(2) of I.P.C. He has also been sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.2000/- in default stipulation of further undergo rigorous imprisonment for two months for the offence u/S.366-A of I.P.C. As per the said order the substantive sentences are to run consecutively. 3. Prosecution case runs as under: The victim who is the daughter of the informant P.W.3 was reading in Class-VI in Rashtriya Vidyalaya, Rourkela. On the day of Saraswati Puja on 17.2.2002 she had gone to the school during morning hours but as usual she did not return in the evening. So, her father went for search at different places but failed to trace her. Some information was received after some time that the present appellant who was residing in their neighbour-hood in the house of one Jagdish Prasad has also not returned to the house. In view of that raising suspicion, they went to the native village of the appellant i.e. Palkot and there they could learn about their daughter being kidnapped. But they did neither find the victim nor the accused in that village. So, the matter was ultimately reported to the police by P.W.1, the mother of the victim. This necessitated the registration of a case and triggered the investigation. On completion of investigation, charge-sheet was placed against the appellant for facing the trial for commission of offence under Section 366-A/376 (2) of I.P.C. So, the appellant faced the same being charged for above offences. 4. During trial, prosecution examined 12 witnesses whereas the defence examined none. Out of the witnesses P.W.1 and P.W.3 are the parents of the victim whereas P.W.2 is the victim herself. P.W.4 has been examined as a witness to the seizure of the garments of the victim. 4. During trial, prosecution examined 12 witnesses whereas the defence examined none. Out of the witnesses P.W.1 and P.W.3 are the parents of the victim whereas P.W.2 is the victim herself. P.W.4 has been examined as a witness to the seizure of the garments of the victim. P.W.5 who is the owner of the house where the appellant was residing as a tenant has also been examined. As witness to the seizure of pubic hair and semenal fluid of the accused and victim, P.W.6 has come to the witness box and so also P.W.7 in that regard concerning the victim. Transfer certificate of the victim has been proved through the teacher, P.W.7, P.W.10 is the Medical Officer who examined the victim and P.W.12 is the Medical Officer who examined the appellant. P.W.8 and P.W.9 are the witnesses who have passed over some information as regards the employment of victim in a brick Kiln at Johanpur. 5. In view of the case projected by the prosecution, the trial court formulated five points for determination and on the basis of evidence let in by the prosecution and upon their analysis has arrived at a finding that the victim was below 16 years of age on the date of incident; that she was enticed by the appellant being kept away from the custody of her lawful guardian without their consent with intent and knowledge that she would be forced to having illicit intercourse with him and also that she was sexually assaulted by him. These factual findings are now assailed in this appeal for upsetting the conviction recorded against the appellant for commission of offence under Sections 376 (2) and 366-A of I.P.C. 6. Learned counsel for the appellant submits that the evidence on record emanating from the prosecution witnesses ought not to have been believed by the trial court and it ought to have been held that it is the girl who had followed the appellant and not otherwise. It is also his submission that with regard to the case of rape as projected the court below erred in law and fact in rendering a finding against the appellant as the evidence on record do not on proper appreciation in view of settled principles laid down in that regard justify such a finding. It is also his submission that with regard to the case of rape as projected the court below erred in law and fact in rendering a finding against the appellant as the evidence on record do not on proper appreciation in view of settled principles laid down in that regard justify such a finding. It is also his submission that the evidence of victim is not be trustworthy and without any strong corroboration the same cannot be accepted to fashion the criminal liability upon the appellant. Therefore, he contends that the order of conviction and sentence are liable to be set aside. Learned counsel appearing for the State on the contrary supports the finding rendered by the court below. He contends that the evidence remains air tight in respect of the age of the victim that she was below 16 years of age at the relevant time. Next the evidence regarding the enticement of the victim by the appellant in moving away from the keeping of her parents (guardians) has been well-established not only through the evidence of P.W.3 but other circumstances as emanate when there remains absolutely no explanation from the side of the defence on that score. As regards the intent of the accused in forcing the victim to illicit intercourse and then sexually assaulting her, his submission is that the evidence of victim when tested with other attending circumstances, established the same beyond reasonable doubt. Therefore, according to him the trial court did commit no error in convicting the appellant for those offences and sentencing him thereunder. 7. On the above rival submission in order to judge the sustainability of the findings regarding the establishment of the offences u/Ss.366-A and 376(2) of I.P.C against the appellant by the prosecution beyond reasonable doubt, it stares for examination of the prosecution evidence and their critical analysis. So an exercise in that regard is hereby undertaken. 8. As regards the age of the victim, the trial court has found it to be below 16 years of age at the relevant time. Mother of the victim has deposed the age of the victim as 13 years which is also the statement of the victim herself as well as her father. As I find no such challenge has been made to the said evidence during cross-examination. Mother of the victim has deposed the age of the victim as 13 years which is also the statement of the victim herself as well as her father. As I find no such challenge has been made to the said evidence during cross-examination. In order to entertain any doubt on this aspect of the age of the victim except throwing some suggestion that her age is being understated by them, no such material is forthcoming to doubt the same. I find the evidence of Medical Officer, P.W.10 on this score who on ossification test examining the X-ray plates and the report has arrived at a conclusion that the victim was aged between 14-16 years then. It is also proved that the victim was reading in Class-VI at the relevant time. In view of these, the age of the victim appears to have been rightly held to be below 16 years by the trial court and the same in my considered view calls for no interference. 8. Coming to the question of enticement let us again advert to the evidence of the victim. It is her evidence that the appellant on that day having suggested her to go to I.G.Park took her in a bus and straight to Ranchi. It is further stated by the victim P.W.2 that from Ranchi she was taken to Lucknow, Sultanpur and to Banaras. These factual aspects are not being questioned in any manner by the defence. So it stands proved by them by this false representation the appellant instead of taking her to park took her to a distant place and therefrom to other places. No evidence is forthcoming that the victim had gone with the consent of her lawful guardian i.e. her parents, P.W.1 and P.W.3 and or that even with their knowledge. So the removal of the victim from the lawful guardianship of her parents and that to by the appellant who took her to different places remains unshaken. The victim in the case has been rescued three months after and her statement u/S.164 of Cr.P.C. has been recorded soon after her rescue from the clutch of the appellant when she was there in a place in the State of Uttar Pradesh. The victim in the case has been rescued three months after and her statement u/S.164 of Cr.P.C. has been recorded soon after her rescue from the clutch of the appellant when she was there in a place in the State of Uttar Pradesh. She has stated in her 164, Cr.P.C. statement about the appellant attempting her on three to four occasions to commit rape and then had succeeded in raping her which she also says to be against her will. It is also her statement that she had initially refused to go for the sexual intercourse. But now these things are not stated during evidence and she simply states that the appellant had sexually assaulted with force at Lucknow and Banaras. For that simple omission the evidence of P.W.2 can-” t be disbelieved that she failed to detailed account of the facts as above during evidence when on material aspect of the case she has deposed during trial. One important aspect appears in the case which can-” t be lost sight of is that the victim being put to medical examination the pregnancy test has found to be positive. All these thus lead to prove the intention of the accused to take the victim deceitfully to distant places and ultimately sexually assaulting her. The evidence of the victim is found to be having a ring of truth and no such infirmity appears therein so as to wholly discard the same when also there remains no reason on her part to falsely implicate the appellant as at this age she had come out to speak against the appellant concerning her own chastity and fully knowing the future consequence and other societal stigma and response. Therefore, in view of these above discussion and on analysis of evidence there remains no justifiable reason to differ with the finding of the court below as regards the commission of the offence under Section 366(A)/376(2) of I.P.C and that is therefore confirmed. 9. Now coming to the question of sentence, it is found that the trial court has imposed rigorous imprisonment for a period of 10 years for offence u/S.376 of I.P.C which is minimum prescribed punishment in such cases and may only be reduced for adequate and special reason and the fine has been imposed to the tune of Rs.20,000/- with default stipulation of undergoing six months of rigorous imprisonment. Next in respect of offence u/S.366-A of I.P.C the appellant has been visited with sentence of rigorous imprisonment for seven years followed by payment of fine of Rs.2000/- with default stipulation of undergoing further rigorous imprisonment for two months. These above sentences being imposed by the trial Court, it has been further ordered that those are to run consecutively. Learned counsel for the appellant submits that the trial court while submitting that those are on higher side has further submitted that the court below has not assigned any reason as to why the harsh option that the substantive sentences are to run consecutively and why recourse by way of a departure from the normal rule of the sentence to run concurrently is taken. On going through the order of the sentence, it is seen that the trial court in a generalised manner stated that such order to have been passed in respect of running of the substantive sentence concurrently considering the act and conduct of the appellant and consideration under which the offences were committed. As regards quantum of substantive sentences, no such justifiable and special reason appears in the case for their reduction. 10. Coming to the issue it may be noted that substantive sentences awarded have not been directed to run concurrently by the trial court. Section 31, Cr.P.C. provides as under :-” ' 31. As regards quantum of substantive sentences, no such justifiable and special reason appears in the case for their reduction. 10. Coming to the issue it may be noted that substantive sentences awarded have not been directed to run concurrently by the trial court. Section 31, Cr.P.C. provides as under :-” ' 31. Sentences in cases of conviction of several offences to one trial, (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently, (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court; Provided that (a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years; (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence' -. It is thus evident that the trial court was competent to direct the sentences to run consecutively but for the fact that the sentence to imprisonment cannot be longer than 14 years. The appellant has been awarded sentence for rigorous imprisonment for 10 years for offence under Section 376 (2), IPC and 7 years for offence under Section 366-A, IPC. Thus if the sentences are to run consecutively, the imprisonment exceeds 14 years. In view of the legal position, the substantive sentences awarded to the appellant are directed to run concurrently. The appellant has been awarded sentence for rigorous imprisonment for 10 years for offence under Section 376 (2), IPC and 7 years for offence under Section 366-A, IPC. Thus if the sentences are to run consecutively, the imprisonment exceeds 14 years. In view of the legal position, the substantive sentences awarded to the appellant are directed to run concurrently. Lastly coming to the aspect of imposition of fine, it is again seen that a fine of Rs.20,000/- has been imposed for the offence under Section 376(2) of I.P.C and Rs.2000/- for the offence under Section 366-A, I.P.C with default stipulation of rigorous imprisonment for six months and two months respectively. It is there in the evidence that the appellant was a wage earner hailing from a rural background staying in a distant place in the State of Orissa from his native village in the State of Jharkhand for the purpose of earning his livelihood when he was then aged about 23 years. His present age on being computed from the same comes to 33 years and by now he has spent the major part of his youth inside the jail. Therefore, the quantum of fine imposed at this stage needs modification in the interest of justice. The sentence of fine of Rs.20,000/- for offence under Section 376(2) of I.P.C. is altered to payment of fine of Rs.2000/- with default stipulation of undergoing rigorous imprisonment for two months and for offence under Section 366-A, I.P.C the fine is reduced to Rs.500/- with default stipulation of undergoing rigorous imprisonment for one month. In view of aforesaid, the appeal is allowed in part with the modification of the order of sentence that the substantive sentences shall run concurrently as well as in respect of fine to the extent as indicated above. Appeal partly allowed.