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2015 DIGILAW 245 (ORI)

Sarat Kumar Rout @ Kalia v. State of Orissa

2015-04-09

D.DASH

body2015
JUDGMENT The appellant from inside the jail has called in question the judgment of conviction passed by the learned Ad hoc Additional District and Sessions Judge, Jajpur in S.T. Case No. 15/49 of 2007 convicting the appellant for offence under Section 376(2)(f), I.P.C. and the order of sentence of rigorous imprisonment for a period of ten years with fine of Rs.5,000/- with default stipulation for undergoing rigorous imprisonment for further period of one years extending the usual benefit of set off under Section 428 of the Code of Criminal Procedure. 2. Prosecution case is that on 08.08.2006 at 2.30 P.M. the brother in law of the informant had come to the house at village Jokadia under Jajpur Road Police Station in an Indica car bearing Registration No. OR-05-S-7375. It is further stated that he had brought some fruits and sweets since it was of Gahma Purnima day. Seeing the car parked in front of the house of the informant, the niece and the nephew of the informant aged about six years and four years respectively, went near the vehicle out of curiosity as it usually remains with the children. It is next alleged that no sooner did the niece and the nephew request for a ride in the car, the appellant who was on the driver seat allowed them to sit in the car and drove away. Next comes the allegation that after leaving the victim’s brother at a place, the appellant committed rape upon the victim inside the car leading to profuse oozing of blood from the private part of the victim. The victim and her brother were .then brought in that very car and left at the outskirt of the village, where after the appellant went away driving the car. The incident thereafter being narrated by the victim before her mother, she was taken to the Jajpur Road Hospital and then as advised by the doctor to District Headquarters Hospital, Jajpur, wherefrom she was taken to S.C.B. Medical College and Hospital, Cuttack for treatment. In course of such treatment in the Medical College, the matter was reported by the informant in writing on 09.08.2006 at Jajpur Road Police Station. That being treated as an FIR, necessary case came to be registered and investigation commenced. In course of the same, the informant and other witnesses including the victim were examined by the Investigating Officer. In course of such treatment in the Medical College, the matter was reported by the informant in writing on 09.08.2006 at Jajpur Road Police Station. That being treated as an FIR, necessary case came to be registered and investigation commenced. In course of the same, the informant and other witnesses including the victim were examined by the Investigating Officer. The appellant as well as the victim were also medically examined. The Investigating Officer made seizure of other incriminating materials including the car. The appellant being arrested in the case was forwarded to the Court and thereafter on completion of the investigation, charge sheet being submitted, the case got committed to the Sessions Court for trial. 3.In the trial, the prosecution in order to bring home the charge has examined 21 witnesses and proved the F.I.R, report of the Test Identification Parade as well as reports of the doctors, seizure lists, chemical, examiner report etc. The appellant having taken the plea of denial in the trial, examined himself in his defence. The trial Court on evaluation of the evidence both oral and documentary has rendered a categorical finding that it is the appellant who had committed rape upon the victim (P.W.17), who was severely sexually assaulted by the appellant inside the car on the relevant date, when she was taken for a ride in the car by the appellant. With such finding, the trial Court has awarded the sentence as aforesaid. 4. Learned counsel for the appellant submits that the evidence of P.W.17 who is a child witness ought not to have been accepted by the trial Court without strong corroboration on every material particular coming other sources. According to him, the circumstance as have emanated from the evidence of the prosecution witnesses clearly lead to show that she had been tutored and has accordingly so deposed during the trial. It is his further submission that the trial Court being simply swayed away by the gravity of the offence which no doubt is grave in nature has recorded the conviction when even if, in that situation the duty of the Court remains to find out as to if the prosecution has proved the complicity of the person charged with such offence. According to him in the present case the prosecution evidence as regards complicity of the appellant is not acceptable. According to him in the present case the prosecution evidence as regards complicity of the appellant is not acceptable. He also draws the attention of this Court to the fact that the incident as narrated is impossible to happen that when the appellant in the car on the driver’s seat the incident of rape as deposed to by P.W.17 is wholly unbelievable. Therefore, he contends that it is a fit case for acquittal of the appellant of the charge. 5. Learned counsel for the State with vehemence refutes the above submission. According to him, the evidence of P.W. 17 who is no doubt a child witness is having the ring of truth when no such material is forthcoming to show that she was at all being tutored. He draws the attention of the Court to the fact that the evidence is there on record that immediately on arrival of the P.W.17 she narrated the incident to her mother. He further submits that here the evidence is over whelming on the score that the appellant had taken the victim and her brother for a ride in the car and left them some time thereafter in the outskirt of the village where after this P.W.17 has narrated the incident. So according to him, there was absolutely no time gap and the question of tutoring is totally over ruled. He further submits that there remains absolutely no reason for P.W.17 to falsely implicate the appellant in describing such an incident. It is also submitted that rule of corroboration to the evidence of a child witness for being acted upon though a rule of caution, but it is not a must in every case. However, he contends that in the present case the solitary testimony of P.W.17’s evidence is enough to base the finding but still overwhelming corroboration are available, coming from the lips of the witnesses and as well as experts. Therefore, he urges that the appeal bears no merit. 6. In view of above rival submission, this Court is now called upon to go for reappraisal of the evidence in order to judge the defensibility of the finding of guilt rendered against the appellant for commission of offence under Section 376 (2)(f), I.P.C. Admittedly the age of the child witness was about six years at the time of incident. 6. In view of above rival submission, this Court is now called upon to go for reappraisal of the evidence in order to judge the defensibility of the finding of guilt rendered against the appellant for commission of offence under Section 376 (2)(f), I.P.C. Admittedly the age of the child witness was about six years at the time of incident. She was reading in class III and has been examined as P. W. 17. The trial Court before recording the evidence has rightly gone to ascertain as to whether she had the understanding of the implication of oath. So for the purpose has put few ordinary questions and then the Court below having found the child to be giving rationale answers has finally recorded the evidence on solemn affirmation. This P.W.17 has also identified the appellant during trial. Before going to appreciate the evidence of this child witness, it has to keep in mind that in most of the cases their memory remains very sharp and that particularly appears to have happened here when the witness has gone to describe the detail from the very beginning till the end. She has stated the appellant to be there on the driver’s seat of the car and to have taken her and her brother and that on the way her brother was made to get down from the car and thereafter the actual incident happened when she was unrobed and the appellant went to fulfill his sexual urge by forcibly entering his penis into her vagina. It has also been deposed that in order to wipe out the evidence, the appellant had taken the victim to the pond for washing and had told for not disclosing the matter before other while giving threat to the life of her father. This witness has faced searching cross-examination. But it is seen that during the cross-examination, she has further elaborated the incident describing minute details as to the exact place inside the car where rape was committed, what was then oozed out of her vagina etc. The natural conduct of the child gets exposed when she has stated being exhausted and frustrated to be not in a position to further state those incidents which actually had happened. The natural conduct of the child gets exposed when she has stated being exhausted and frustrated to be not in a position to further state those incidents which actually had happened. Nothing appears from her evidence that she had any reason to implicate the appellant nor any hint is available from her evidence that there was any attempt to tutor her on this incident. Her evidence appears to be very natural and free from any major discrepancy and there appears an impress of truth in her evidence and as such is wholly reliable. The evidence of P.W.17 so far as complicity of the appellant is concerned has remained unshaken and there arises no such material to doubt her version, which appears to be truthful. Therefore, her solitary testimony in the present case is held sufficient to render a finding in favour of the prosecution as regards establishment of the charge against the appellant beyond reasonable doubt. Be that as it may, in the case the prosecution has not remained satisfied with such evidence only, but has left no stone unturned by going to examine a number of other witnesses who have stated about both going in the car and thereafter the divulgence of the incident by the P.W.I7 before them who have also noticed blood oozing out of her private part and then she was crying. Similar is the evidence of the mother of the victim that P. W .17 at the earliest opportunity disclosed the incident to her. The doctor who has examined in this case in clear term has deposed about noticing violence on account of the incident on the private part of the girl child. P.W.15, the doctor who had examined the girl child has found the bleeding with tears on the private part as well as other features suggestive of recent sexual intercourse. This evidence provides full corroboration not only to the evidence of P.W.I7 but also to the evidence of other witnesses. The trial Court has made thread bare analysis of the evidence on record. Over and above, so far the identification of the appellant is concerned the evidence of the child witness receives full corroboration from the evidence of test identification parade held by an early date. The trial Court has made thread bare analysis of the evidence on record. Over and above, so far the identification of the appellant is concerned the evidence of the child witness receives full corroboration from the evidence of test identification parade held by an early date. The learned Judicial Magistrate, who conducted the said parade, has recorded the role played by this appellant as per the version of P.W.17 giving the reason for her being in a position to identify which P.W.I7 also has deposed. In view of all these, this Court finds no such justification to differ with the findings of the trial Court as regards the complicity of the appellant and his authorship of this crime. The sentence imposed by the trial Court in the fact and circumstances of the case appears to be just and proper. Therefore, the judgment of conviction and order of sentence impugned in this appeal are hereby confirmed. 7.Resultantly, the appeal stands dismissed. Appeal dismissed.