Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 716 (ORI)

Batakrushna Behera v. State of Orissa

2014-10-30

D.DASH

body2014
JUDGMENT D. DASH, J. : The appellant in this appeal challenges the judgment of conviction and order of sentence passed by the learned Assistant Sessions Judge-cum-CJM, Puri in S.T. Case No.92/185 of 2004 convicting him for commission of offence punishable under Section 376(2))(f) of IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5000/- in default to undergo rigorous imprisonment for one year. 2.Prosecution case is that the victim aged about 11 years on 26.08.2003 had gone to the grocery shop of their village and it was then around 9.00 p.m. It is stated that the appellant was found sitting on the raised platform (Chandani) of the Community house (Kotho Ghara) of the village. He was then alone. When victim was on her way to the grocery shop, the respondent suddenly appeared, gaged her by means of a napkin (gamuchha) and taking her to the nearby forest, made her lie on the ground underneath a mango tree and committed sexual intercourse. On account of gagging, the victim could not arise any hullah all through. When till 9.300 p.m. the family members did not see the victim returning from the grocery shop, her brother came out in search of her. In course of search by focusing torch light, the appellant was found to be committing rape upon the victim. Seeing the brother of the victim the appellant fled away, when he was chased by the brother of the victim though in vain. The victim came to her house and described the incident. So the matter was placed for discussion and consideration of the villagers. As nothing happened, the victim lodged the FIR at Pipili Police Station which necessitated registration of the case followed by commencement of the investigation. In course of investigation, the victim, her brother, mother and other witnesses were examined. Wearing apparels of the victim were seized under proper seizure list. The I.O. then arrested the appellant. Both the victim and the appellant were put to medical test. On completion of investigation, charge-sheet being submitted placing the appellant for trial for commission of offence under Section 376(2)(f) of IPC, the appellant has faced the same. 3.The plea of the appellant is of complete denial and false implication on account of enmity. The I.O. then arrested the appellant. Both the victim and the appellant were put to medical test. On completion of investigation, charge-sheet being submitted placing the appellant for trial for commission of offence under Section 376(2)(f) of IPC, the appellant has faced the same. 3.The plea of the appellant is of complete denial and false implication on account of enmity. Prosecution in order to bring home the charge against the appellant in total examined eleven witnesses and as against that the defence examined none. More importantly, the prosecution proved the FIR Ext-1, School Leaving Certificate of the victim Ext-2 and the school admission register as Ext-9 besides other documents. 4.The trial Court on analysis of evidence of the victim and also taking into consideration the medical evidence as well as the evidence of other witnesses and upon their evaluation held the age of the victim to be under 12 years. Next with regard to the occurrence, the testimony of the victim has not only been found to be trustworthy and reliable but also the version has been found to have received due corroboration from the medical and other evidence. In view of above, the trial Court has recorded a conviction against the appellant for commission of offence punishable under Section 376(2)(f) of IPC and he has been sentenced thereunder as stated above. 5.Learned counsel for the appellant submits that the trial Court has erred in law by holding the victim P.W.3 to be less than 12 years of age. In this connection, he has drawn the attention to the evidence of mother of the victim P.W.4. In view of such evidence of P.W.4, she urges that entry of the date of birth in the school admission register so also the certificate ought to have eschewed from consideration and the victim ought to have been found to be more than 16 years of age. He further submits that the evidence of P.W.3 is having basic infirmities and the way of narration of the incident made by her clearly appears to be improbable. She has categorised her evidence to be wholly unreliable. According to him, the circumstances emanating from evidence do clearly establish a case of consent and show that the incident has been given a colour of rape just because of arrival of brother of the victim i.e. P.Ws.5 due to instinct of self preservation. She has categorised her evidence to be wholly unreliable. According to him, the circumstances emanating from evidence do clearly establish a case of consent and show that the incident has been given a colour of rape just because of arrival of brother of the victim i.e. P.Ws.5 due to instinct of self preservation. It is his further submission that without any such corroborative of evidence, the case of rape as projected ought to have been disbelieved. Therefore, he contends that the conviction recorded against the appellant is unsustainable and so also the order of sentence that has followed. 6.Learned counsel for the State while refuting the submission of the learned counsel for the appellant contends that the finding of the trial Court with regard to the age of the victim under 12 years is unassailable. According to him, the documentary evidence such as Ext.9 as well as the certificate granted on the basis of that Ext.2 coupled with the evidence of the Headmaster of the school P.W.11 and that of the evidence of P.W.3, clearly prove the age of the victim as has been found by the trial Court. In view of this, he contends that when the sole testimony of P.W.3 contains no such infirmity and when she has stated in detail with regard to the incident, there is no escape from the conclusion that it is the appellant who is liable for commission of offence under Section 376(2)(f) of IPC. He further submits that the evidence of mother of the victim with regard to the age of the victim has rightly not been given due importance, considering the fact that she is an illiterate rustic village lady with the poor intelligence level. He contends that here the sole testimony of the victim has remained un-blemished and, therefore, the trial Court according to him has rightly found the appellant guilty for commission of above offence. It is also his submission that here it having been proved by the prosecution that the appellant sustained injuries, the existence of which is possible in course of commission of rape, the absence of medical evidence as regards any injury on the person of the victim P.W.3 is of no consequence and that can’t lead to discard her evidence. It is also his submission that here it having been proved by the prosecution that the appellant sustained injuries, the existence of which is possible in course of commission of rape, the absence of medical evidence as regards any injury on the person of the victim P.W.3 is of no consequence and that can’t lead to discard her evidence. He also points out that at first when step was taken, she could not be medically examined for the reason of her going through the menstrual period and when her examination has been made four days after the occurrence, the doctor having not found any such injury can’t be taken to demolish her evidence regarding rape which is otherwise acceptable. 7.On such rival submission this Court is now called upon to evaluate the evidence on record in order to consider the defensibility of the finding rendered by the trial Court with regard to the complicity of the appellant. Before that it is felt apposite to take note of the settled position of law as regards the appreciation of the evidence of the victim of rape and other sexual assault. “In the case of Bharwada Bhoginbhai Hirjibai v. State of Gujarat, reported in AIR 1983 S.C. 753 , their Lordships in the Hon’ble Apex Court have held that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of a girl or the woman who complaints of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses finged with doubt, disbelief on suspicion ? To do so is to justify the change of male Chauvinsim 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.” 8.Keeping in view the rival submission and also the settled position of law as above, let’s first of all come to the evidence with regard to the age of the victim-P.W.3. It may be stated here that the appellant in his statement under Section 313 of Cr.P.C. has feigned his ignorance with regard to the age of the victim, when it has been put to him that the victim was 11 years old, he has stated to have not known about it. The victim in her evidence has given out her age to be about 11 years in the year 2004, when the Court has also made the estimation like that. From, Ext.9 the school admission register proved by P.W.11, it is seen that her date of birth finds noted to be on 05.06.1992. Computing from that, the age of the victim as on the date of occurrence comes approximately as eleven years two months and odd days. The victim P.W.3 has denied the suggestion given by the defence that she was of 16 to 17 years of age. P.W.2 the youngest sister of the victim is silent on that score which is obvious. But the brother of the victim P.W.5 has stated on each that her sister was aged about 11 years then. All these evidence have practically remained unshaken. It is true that there remains general tendency for the parents to lower the age of their wards while putting them in school and admitting there. But that is not universally correct. It is clear in this case that the parties sail from rural background and parents belong to lower strata of the society, when mother of the victim P.W.4 is illiterate. Therefore, said tendency on the part of parents cannot be taken into account in the present case to be there in mind while putting victim in school. Moreover, here the margin is high and taking into account the background and other factors as stated above, it is impossible for a moment to think that the age of P.W.3 while putting her in the school was reduced to such an extent. In view of above state of affair in the evidence, this Court is not in a position to accept the submission of the learned counsel for the appellant that taking into account the age of the P.W.5 as stated by P.W.4 and considering the age gap between her children, the victim’s age then would be around 20 years. In view of above state of affair in the evidence, this Court is not in a position to accept the submission of the learned counsel for the appellant that taking into account the age of the P.W.5 as stated by P.W.4 and considering the age gap between her children, the victim’s age then would be around 20 years. Therefore, the finding of the trial Court that P.W.3, the victim was below 12 years of age is not found to be faulty one and rather it appears to be based on proper appreciation of evidence which finds favour of this Court. 9.In view of aforesaid finding the consent is immaterial when the law is settled, that the victim of that age is in-capable of giving consent which is a voluntary participation by women to a sexual act after fully exercising the choice. In view of above, the presumption runs against it. So now the only question to be seen as to whether there remains satisfactory evidence with regard to the commission of sexual intercourse upon the victim by the appellant. 10.At the outset, it may be stated that when prior enmity is projected as the reason of false implication, no such material surfaces from the evidence of witnesses examined on behalf of the prosecution and the defence has also tendered no such evidence. 11.Learned counsel for the appellant submits that the case has been initiated when marriage proposal between the victim and the appellant was turned down does not appear to be correct one. It is there in the evidence that when after the incident, there was a meeting the rustic villagers mooted out a proposal of marriage which being not agreed to by the father of the victim, the same remained under carpet. The victim has clearly stated that the appellant when wanted to marry her, the parents and brother of victim did not yield to it. Therefore, it is found that there was no such apparent reason for the victim to falsely implicate the appellant at the cost of chastity and dignity inviting the great risk of earing the social stigma and the likelihood of sufferance of the victim for rest of her life which at that age was not unknown to her. Therefore, it is found that there was no such apparent reason for the victim to falsely implicate the appellant at the cost of chastity and dignity inviting the great risk of earing the social stigma and the likelihood of sufferance of the victim for rest of her life which at that age was not unknown to her. 12.The evidence of P.W.3 is to the effect that the appellant gagged her and forcibly took her to the nearby forest, made her lie under-neath a mango tree and then slept over her and finally committed sexual intercourse by penetrating his penis into her vagina. She has explained as why she could not raise hullah i.e. because of gagging. P.W.4, the mother has stated to have heard the graphic detail of the incident from P.W.3. P.W.5 brother of the victim has also fully supported the version of P.W.3. He has further stated to have chased the appellant but in vain. As regards non detection of any injury on the private part of the victim, though under the circumstance, it is of no significance and that itself cannot lead to view the evidence of the victim with suspicion to discard the evidence into toto, the fact here also remains that she has examined four days after the incident as during first attempt she was passing through the menstrual period. On the other hand, from the evidence of P.W.6 it is seen that the appellant had sustained injuries over his body, which are possible in course of commission of rape by coming in contact with the stone or hard object or stump of trees. There also remains no explanation to it. 13.For the aforesaid discussion of evidence it appears that appellant has been rightly held guilty for commission of offence punishable under Section 376(2)(f) of IPC and the trial Court did commit no mistake in recording the conviction and imposing the custodial sentence for the minimum period prescribed as well as the fine with the said default stipulation. 14.In the result, the appeals stands dismissed. The judgment of conviction and order of sentence impugned in this appeal are hereby confirmed. The appellant be taken to custody forthwith to serve out the rest part of the sentence. Appeal dismissed.