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2014 DIGILAW 267 (ORI)

Santosh Bhoi v. State of Orissa

2014-04-22

SATRUGHANA PUJAHARI

body2014
JUDGMENT S. PUJAHARI, J. - This Jail Criminal Appeal is directed against the judgment and order of conviction and sentence passed by the learned Asst. Sessions Judge, Padampur in S.T.No. 26 of 2004/C.T. No. 26/6 of 2004. The learned Asst. Sessions Judge in the impugned judgment and order of conviction and sentence held the appellant guilty of the charge under Section 376 of the Indian Penal Code (for short "IPC") and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for one year more. 2. Prosecution had placed before the trial Court a case that on 24.03.2003 at noon time, when the victim, aged about fourteen years (P.W.1) had been to her threshing floor to untie their bullocks tied there, the appellant came and caught hold of her and dragged her towards a heap of straw there and committed forcible sexual intercourse on her, for which she sustained bleeding injury on her private part. The victim then came to her house and reported the matter before her parents and as she had sustained bleeding injuries, she was taken to Paikmal Government Hospital and thereafter, the father of the victim reported the matter in writing (Ext. 2) at Jharbandh Police Station in the district of Bargarh on the next day. Police had investigated the case and found substance in the report, Ext. 2 and submitted charge-sheet against the appellant. 3. The trial Court placing reliance on such allegation of prosecution supported by the materials collected during investigation, framed charge for the aforesaid offence against the appellant and as he denied the charge, he was asked to face the trial. 4. The trial Court basically relying on the evidence of the victim as well as the medical evidence of P.W.7 and the corroborative evidence of the victim's father (P.W.4) and her co-villagers, such as, P.Ws.2 and 3, before whom the victim stated about the incident contemporaneous to occurrence, returned the judgment and order of conviction and sentence as stated earlier. 5. It has been submitted by the learned counsel for the appellant that the version of the victim cannot be treated as gospel truth. Since in this case, there was delay in lodging report which has not been properly explained, the same casts a cloud on the version of the victim. 5. It has been submitted by the learned counsel for the appellant that the version of the victim cannot be treated as gospel truth. Since in this case, there was delay in lodging report which has not been properly explained, the same casts a cloud on the version of the victim. Therefore, the prosecution case is liable to be discarded and the appellant needs to be acquitted, has also been submitted by the learned counsel for the appellant. 6. In response, drawing the notice of this Court to the evidence of the victim, it has been submitted by the learned counsel for the appellant that the victim in no uncertain terms having deposed that in the threshing floor the appellant committed rape on her, for which she sustained injuries and such version being corroborated by the medical evidence of the doctor (P.W.7) examining her as well as the corroborative evidence of her father (P.W.) and co-villagers (P.Ws. 2 and 3) and there being nothing on the record to suggest that the victim had any reason to falsely implicate the appellant, the delay in lodging the FIR, Ext. 2 which is for one day only in an offence of this nature, is not fatal to the prosecution case. Therefore, the judgment and order of conviction and sentence as returned by the trial Court needs no interference, has also been submitted by the learned counsel for the State. 7. It appears that the prosecution came to the trial Court with a case that the victim being fourteen years of age was ravished by the present appellant. In the trial Court, evidence has been led by the defence to show that the victim was more than sixteen years of age. The trial Court rendering a finding that since the victim deposed that she was raped, the age of the victim in such circumstances becomes immaterial. Such finding of the trial Court appears to have sanction of law, inasmuch when a case of consensual sexual intercourse has also been advanced by the defence in this case and no evidence has also been brought to record in this regard, the age of the victim in such circumstances, even if proved by the defence to be sixteen years then, which is the age of discretion then for a consensual sexual intercourse, the same becomes immaterial in a case of under Section 376 of IPC. 8. 8. The evidence on record further would go to show that the victim (P.W.1) in no uncertain terms deposed that while she had been to the threshing floor to untie the bullocks in the absence of her father, at the noon time, the appellant dragged her to a heep of straw and committed sexual intercourse on her, for which she sustained injuries on her private part. Such evidence of the victim also gets corroboration from the evidence of the Doctor (P.W.7) who had examined her in this case. Dr. Sabita Bohidar (P.W. 7) deposed that she had examined the victim on 26.03.2003 and found that the victim had recent sexual intercourse and there was vaginal injury of recent origin. Such examination of the victim was done two days after the occurrence by the doctor. So also, the evidence of P.W.8-Dr. Alekh Prasad Mohapatra would go to show that he appellant was also capable of doing sexual intercourse. P. Ws. 7 and 8 in this regard are corroborated by the contemporaneous document, i.e., the examination report prepared by them vide Exts. 4 and 5 respectively. Nothing has been elicited from the victim during her cross-examination, though the same was lengthy and incisive, suggesting that she had any reason to falsely implicate the appellant in this case. Soon after the occurrence, the victim also stated before her parents that she was subjected to rape by the appellant, as deposed by her father (P.W.4). Further, the evidence of the victim gets corroboration from the evidence of her co-villagers, such as, P.Ws. 2 and 3. Both these witnesses deposed that being called by P.W.4, the father of the victim on the date of occurrence at about 1.30 P.M., they went to the house of the victim, where the father of the victim told that his daughter was raped by the appellant and when they asked the victim, the victim also disclosed before them that the appellant raped her. They also stated that they had seen the wearing apparels of the victim to have been stained with blood. In an incisive cross-examination of the aforesaid two witnesses, nothing has been elicited from them, which can be said to have corrode the credibility of their aforesaid version. They also stated that they had seen the wearing apparels of the victim to have been stained with blood. In an incisive cross-examination of the aforesaid two witnesses, nothing has been elicited from them, which can be said to have corrode the credibility of their aforesaid version. No material has been brought to record much less any convincing material that the aforesaid independent witnesses, who corroborate the version of the victim, had any reason to falsely implicate the appellant. Their aforesaid evidence in this regard, as such, lends corroboration to the version of the victim under Section 157 of the Indian Evidence Act. Furthermore, the delay in lodging the FIR, on which reliance has been placed, has been duly explained, inasmuch as the father of the victim gave priority to the treatment by taking her to the hospital, for which delay occurred. Furthermore, it is a case of sexual assault on a woman. In our Indian setting, the parents or guardians including victims loathed in approaching the police immediately for very many reasons in an offence of this nature when committed. The delay, which has been explained, is also not inordinate. The delay in lodging the report, therefore, cannot be said to fatal, especially when there is nothing on record to suggest that the victim and her father had any reason to falsely implicate the appellant in this case at the cost of reputation and future of the victim in the Indian setting. 9. The defence version of false implication inasmuch as D.W.1 deposed that the victim sustained an accidental injury by push of bullock in threshing floor, was stated to him by the father of the victim while making a request to him to shift the victim to the hospital, found to be untrustworthy. There is no dispute that D.W. 1 shifted the victim along with her brother to hospital in his motorcycle, but the father of the victim, P.W.4 giving him a disclosure of an accidental injury requesting him to shift the victim to hospital, found to be unworthy of credence for lack of foundational facts in support of the same, more so when the aforesaid has not been suggested to P.W.4 and the doctor, P.W.7 found recent sign of sexual intercourse on her and injury on her private part. There is no material in support of such version of D.W.1. There is no material in support of such version of D.W.1. Nothing has been brought on record to suggest that the father of the victim had any acceptable reason for false implication when her daughter sustained an injury accidentally on her private part to implicate the appellant that too at the cost of reputation of his daughter braving the stigma attached to the victim of rape on a woman, who was unmarried then. The defence version, as such, does not corrode the credibility to the version of the victim which also gets corroboration from medical evidence and contemporaneous former statement made by her with regard to the incident before her father, P.W.4 and co-villagers, P.Ws. 2 and 3 incriminating the appellant. 10. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, reported in AIR 1983 SC 753 , their Lordships in the Hon'ble Apex Court have been pleased to hold that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as per rule, is adding insult to injury. Why should the evidence of a girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of mala chauvinism in a male dominated society"..... Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society and its profile." The learned Assistant Sessions Judge has taken note of this observation of the Hon'ble Apex Court while rendering a finding of a guilt against the appellant. The law, therefore, being well settled that basing on the sole testimony of the victim, a conviction can safely be recorded in a case of sexual assault, I see no apparent reason to interfere with the finding of guilt recorded by the trial Court against the appellant in this case, inasmuch as the evidence of the victim that she was raped by the appellant found to be clear, cogent and unimpeachable, more so her such evidence also gets corroboration from the medical evidence of P.W.7 as well as the statement made by her disclosing the sexual assault on her by the appellant contemporaneously to her father, P.W.4 and her co-villagers, P.Ws. 2 and 3, as noticed by this Court on reappraisal of the evidence on record. 11. So far as the sentence imposed under Section 376 of the IPC is concerned, regard being had to the facts and circumstances of the case and the gravity of the offence, I am of the considered opinion that the sentence imposed also appears to be commensurate one, hence needs no interference. 12. For the foregoing reasons, I find no merit in this appeal and, accordingly, dismiss the same. The impugned judgment and order of conviction and sentence recorded by the learned Asst. Sessions Judge, Padampur are hereby confirmed. Appeal dismissed.