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2014 DIGILAW 480 (ORI)

Tarini Mahanta v. State of Orissa

2014-08-08

I.MAHANTY

body2014
Judgment I. Mahanty, J. The appellants herein had faced trial before the Court of the learned Special Judge-cum-Sessions Judge, Keonjhar in Special Case No.12 of 1997 and all were found guilty of offence under Sections 376(2)(g) of the Indian Penal Code and sentenced to undergo R.I. for ten years each and to pay a fine of Rs.1,000/-each and in default to undergo R.I. for one month. 2. The case of the prosecution in brief is that the victim-Bela Munda (P.W.10) was working at a brick kiln and on 03.02.1997 while she was returning to her home in the evening hours, the appellants caught hold of her and took her to a nearby Neem tree, raped her one after another and threatened to kill her, if she disclosed the fact before anybody. The victim returned to her house at night and when her mother (P.W.8) expressed her annoyance for the unusual delay for return back home, the victim narrated the incident to her mother. Thereafter, the mother of the victim (P.W.8) informed her sister-in-law (P.W.9) and on the next day proceeded towards the house of the prosecutrix’s uncle (P.W.7) and informed him about the occurrence. Thereafter, while they proceeds to the Police Station to lodge the report, the son of the village head, namely, Hira Mahanta told the prosecutrix, her mother and relatives that he would settle the matter at the village, for which they returned to the village. But since no settlement could be reached, the victim and her mother reported the matter at the local police station at about 4.15 P.M. on 4.2.1997. 3. The prosecutrix/victim (P.W.10) has deposed in course of the trial that she was living at Govindapur and on the date of occurrence while she was returning after finishing her work in the brick kiln, the accused persons, namely, Tarini Mahanta, Balabhadra Mahanta and Apin Mahanta caught hold of her and took her to a nearby Neem tree, where they forcibly raped her, one after another. While the prosecutrix tried to protest and raised hullah, the accused persons pressed her mouth. While the prosecutrix tried to protest and raised hullah, the accused persons pressed her mouth. It appears from the record that after the commission of the offence, since the accused persons noticed some persons were walking with torch light at a distance, they remained at the site of the occurrence for some further time and, thereafter, threatened the prosecutrix not to communicate about the incident to anybody, went and left her near her house. Since the prosecutrix was unusually delayed in reaching her house, being confronted by her mother, she narrated the entire incident before her mother. The learned counsel appearing for the appellants raised the following grounds. (a). It is submitted that in a case of this nature, the court ordinarily looks into the medical report and statement of the victim. The statements of the victim, in this case medical report on the ocular version of the victim do not tally with each other. A serious lacuna in prosecution case that the Medical Officer who was examined the victim after the incident has not been examined. Only the Medical report has been marked (Exhibit 7 & 8). Exhibit 8 is report of Dr. U.C. Mohanty who ascertained the age of the victim. Exhibit-7 is the physical test of the victim. Both the doctors have not been examined in the court and only their reports have marked. So the defence could not get the opportunity to cross-examine them. These are not the public documents according to the Section 73 of the Evidence Act. Therefore these two documents were required to be proved in course of the trial and they have not been proved according to law, they should be discarded. (b) Further, the chemical examination report which has been proved and marked as (Ext-6) shows that the pubic hair of the victim and vaginal swab do not contain any seminal stain. Normally the vaginal swab would retain the seminal stain for 48 hours. According to Medical report she has been examined within 48 hours. Therefore as per medical jurisprudence the vaginal swab should have contained the seminal stains. It is submitted that the pubic hair may not contain seminal stain because the victim girl might have taken her bath and toilet after the alleged incident but the vaginal swab should contain seminal stains upto 48 hours. Therefore as per medical jurisprudence the vaginal swab should have contained the seminal stains. It is submitted that the pubic hair may not contain seminal stain because the victim girl might have taken her bath and toilet after the alleged incident but the vaginal swab should contain seminal stains upto 48 hours. It may be seen that the occurrence took place on 3.2.97 evening at 7 P.M. and victim was medically examined on 5.2.97, when vaginal swab was collected. Therefore the chemical examination report completely negatives the prosecution case. (c) As regard of age of the victim, the X-ray report would go to show that (Exhibit-8) the victim above 15 and below 16 to 17 years. Therefore, the theory which is favourable to the accused persons should be accepted. So, according to law the possible age of the victim is 16 to 17 years. Even if the P.W.11 says that the date of birth of the victim is 13.4.84. But Exhibit-2 completely negatives the medical opinion as well as statement of the victim. Law is well settled that the age of the victim as per school certificate is not the surest test and it cannot override the scientific test. The school certificate is prepared as per the version of the guardian. Though there is some uncertainty about the version of the prosecution but, scientific test go to show that the age of the victim is 16 to 17 years. Therefore the age of the victim should be taken into consideration as per the medical report if the medical report is accepted. It is submitted that even if the factum of intercourse is accepted, there was clear consent from the side of the victim. Therefore, it does not amount to rape Under Section 375(6th) “with or without consent”, when she is under sixteen years of age “As the girl was above 16 years.” (d) The consent theory can be ascertained from the various aspects of the evidence of the victim. (i) First of all the victim and accused persons were working in same brick kiln. Therefore, they were known each other. The evidence of mother (P.W.8) shows that the victim did not disclose the name of the accused persons until the prosecutrix was scolded and slaped, where after she claims to have disclosed the alleged incident without naming accused persons. (i) First of all the victim and accused persons were working in same brick kiln. Therefore, they were known each other. The evidence of mother (P.W.8) shows that the victim did not disclose the name of the accused persons until the prosecutrix was scolded and slaped, where after she claims to have disclosed the alleged incident without naming accused persons. (ii) It further appears that she was caught hold in the house of Jogi Mahanta but she did not cry, she was taken to distance place on the way she also did not shout or cry for rescue. (iii) The accused persons committed rape one after another but she did not try to escape from their clutches. (iv) Even if at the time of return to her home she did not tell anybody of village regarding the incident. 4. Mr. Mishra, the learned Additional Government Advocate for the State responded to the points raised on behalf of the appellants in the following manner by submitting that no objection was raised by the defence against Ext.7 (report of the medical officer, who examined the prosecutrix) since the said Ext.7 had been collected from the concerned doctor by the I.O. (P.W.12) immediately after such report was prepared and handed over to him. He further submits that since the whereabouts of the doctor, who examined the prosecutrix, could not be ascertained by the prosecution at the time of trial, his report has been marked as Ext.7. Under Section 32 of the Indian Evidence Act, a document could be relied upon, since the same was produced by the I.O. in course of the trial and had been received by him in due course of his investigation. He further submits that Ext.7 would reveal that the victim had one bruise on the right forearm, scratch mark on the right forearm, bruise on the dorsal aspect of the left forearm and more importantly concluded that “the possibility of sexual intercourse cannot be excluded”. He further submits that Ext.7 would reveal that the victim had one bruise on the right forearm, scratch mark on the right forearm, bruise on the dorsal aspect of the left forearm and more importantly concluded that “the possibility of sexual intercourse cannot be excluded”. The trial court came to a conclusion that it was true that the doctor had not been examined in course of the trial and the report of the doctor had been marked under Section 32(2) of the Indian Evidence Act and for such purpose, reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Prithis Chand v. State of Himachal Pradesh, A.I.R. 1989 (SC) 702, wherein the Hon’ble Supreme Court held that “Section 32 of the Evidence Act provides that when a statement, written or verbal is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence”. Therefore, the first contention raised on behalf of the appellant insofar as Ext.7 and non-production of the concerned doctor are concerned, the same is in my considered view has been correctly repealed and I find no justification in this ground raised on behalf of the appellants. 5. Insofar as the second ground raised on behalf of the appellants vis-à-vis Ext.6 i.e. chemical examination report is concerned, it was found from the record of the proceeding that the vaginal swab had been collected within 48 hours of the occurrence and the chemical examination report reflects that the pubic hair and although the vaginal swab of the victim did not contain any seminal stain. Nothing much can be derived from the aforesaid contention, since, the examination of both pubic hair and vaginal swab was conducted only on 30.07.1997 as indicated in Ext.6 (though the report is dated 5.8.97) and this Court should take judicial notice of the fact that the occurrence took place on 3.2.1997 and the examination of the specimens were made on 30.07.1997 i.e. after delay of nearly five months. Obviously the delay in testing of such sample would inevitably result in more often than not in a negative report. Obviously the delay in testing of such sample would inevitably result in more often than not in a negative report. Therefore, the report of the chemical examination (Ext.6) of the pubic hair and vaginal swab of the victim and the absence of any seminal stain thereon is not of much consequence nor any assistance to the appellants, due to delay in carrying out of such chemical examination and, therefore, the second contention raised on behalf of the appellants also has to fail. 6. Insofar as the age of the prosecutrix is concerned as raised in ground No.3 hereinabove, reliance has been placed by the trial court on the evidence of the Govindapur School Headmaster, who produced the Admission Register, where the prosecutrix has stated to have studied, which indicates that her date of birth was 13.04.1984 as indicated in the school admission register and the occurrence took place on 3.2.1997. In other wards, the prosecutrix was below 13 years of age, if the School Admission Register is taken into consideration, but insofar as P.W.11 is concerned, in his cross-examination he claims to have served at the school for 13 years but he cannot say who wrote the entry in Ext.2 and he states that he does not remember whether Ext.2 was prepared in his presence or not. He has no personal knowledge about the contents of Ext.2. He further states that entry of date of birth was made by making enquiry from the guardian of the child and the time of admission and noted in the register. 7. The trial court has noted that both the mother (P.W.8) and the victim (P.W.10) had deposed that the victim was aged about 14 years at the time of occurrence and also came to the conclusion that as per school admission register the victim was a minor on the date of occurrence. In this respect reference has been made to a judgment of the Hon’ble Supreme Court in the case of Bupu Ram v. State of U.P., A.I.R. 1989 (SC) 1329, wherein there Lordships held that “School Certificate cannot be rejected on surmise. That it is not unusual for parents to understate age of their children at the time of School Admission. In this respect reference has been made to a judgment of the Hon’ble Supreme Court in the case of Bupu Ram v. State of U.P., A.I.R. 1989 (SC) 1329, wherein there Lordships held that “School Certificate cannot be rejected on surmise. That it is not unusual for parents to understate age of their children at the time of School Admission. The medical certificate is based on estimate and possibility of error could not be ruled out and the entry in the admission register is the best evidence of the age.” But in the present case, the School Headmaster (P.W.11) clearly admitted that he was not present at the time of making entry into Ext.2 i.e. the school admission register and further that the entries in the school admission register regarding date of birth was made on the basis of the declaration made by the guardians of the children. Taking into consideration the report of the Radiologist (Ext.8) it appears that the age of the prosecutrix was found to be above 15 years and below 16 to 17 years. 8. The important aspect which has been lost sight by the trial court is the statement regarding her own age given by the prosecutrix (P.W.10). The prosecutrix (P.W.10) was examined on 8th March, 2006 and on the date of her evidence; declared her age as 28 years. In her cross-examination she has stated that she was married at the age of 20 and her eldest child was 6 years. She has further stated that her elder sister was two years older than her and was aged about 30 years at the time of her deposition. Therefore, if the age of the prosecutrix is taken to be 28 years at the time of her deposition on 8th March, 2006, then clearly the prosecutrix was more than 18 years old as on the date of the occurrence i.e. 3.2.1997 and, therefore, in view of the evidence of the prosecutrix recorded in course of the trial, it cannot be held that the prosecutrix was a minor as on the date of the alleged occurrence. 9. The next ground that has been raised on behalf of the appellants is with regard to consent theory of the victim. 9. The next ground that has been raised on behalf of the appellants is with regard to consent theory of the victim. In this respect, the trial court has specifically concluded that it was not the case of the accused persons that the victim was a consenting party and on perusal of the statements of the accused persons recorded under Section 313 Cr.P.C. the said fact is further substantiated. Therefore, in the light of the conclusion arrived at and noted hereinabove and the evidences of prosecutrix (P.W.10), the mother of the prosecutrix(P.W.8), P.W.7 and P.W.9 along with the medical evidence i.e. Ext.7 clearly supports the conclusion arrived at by the learned trial court. Hence, I am of the considered view that the appellants are guilty of commission of rape as defined under Section 375 (thirdly) and liable for punishment under Section 376(2)(g) I.P.C. and, therefore, I uphold the conviction and consequently, the Criminal Appeal stands dismissed.