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2016 DIGILAW 112 (ORI)

Rintu @ Narottam Naik v. State of Orissa

2016-02-09

S.K.SAHOO

body2016
JUDGMENT S. K. SAHOO, J. - “The day a woman can walk freely at midnight on the roads, that day we can say that India achieved independence.” -Mahatma Gandhi The appellant Rintu @ Narottam Naik faced trial in the Court of learned Adhoc Additional Sessions Judge (Fast Track), Champua in S.T. Case No.15/62 of 2009 for offence punishable under Section 376(2)(g) of the Indian Penal Code for committing gang rape on the victim ‘MN’ on 06.02.2008 evening at about 6.30 p.m. at Balani Basti, Bada Sahi under Barbil Police Station in the district of Keonjhar. The learned Trial Court vide impugned judgment and order dated 24.08.2009, found the appellant guilty of the charge under Section 376 (2)(g) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for five months. 2. The prosecution case as per the First Information Report lodged by one Niranjan Nayak (P.W.3), the husband of the victim on 08.02.2008 before the Inspector-in-charge, Barbil Police Station is that on 06.02.2008 the victim, who is the wife of the informant had been to Badasahi Basti and was returning home at about 6.30 p.m. and while she was on the way, near a railway crossing, all on a sudden eight persons lifted her gagging her mouth and the victim could identify two of the culprits namely, Benu Nayak and the appellant out of the eight culprits. It is further stated in the First Information Report that the culprits committed gang rape on the victim. After returning from his work, the informant could not find the victim in the house and accordingly he proceeded to the house of his elder sister but there he got information that the victim had already left the house. The informant could locate the victim at Patra Sahi in Bolani Basti and found her crying. The victim narrated the incident before the informant and she also fell ill for which there was delay in giving information at the Police Station. The First Information Report which was lodged at Bolani Out Post was sent to Barbil Police Station for registration and accordingly Barbil P.S. Case No.30 dated 08.02.2008 was registered under Section 376(2)(g) of the Indian Penal Code. The First Information Report which was lodged at Bolani Out Post was sent to Barbil Police Station for registration and accordingly Barbil P.S. Case No.30 dated 08.02.2008 was registered under Section 376(2)(g) of the Indian Penal Code. The Inspector-in-Charge of Barbil Police Station directed P.W.11 Chitta Ranjan Nayak, who was the S.I. of Police attached to Bolani outpost to take up investigation of the case. During course of investigation, P.W.11 examined the informant, the victim and other witnesses and also seized wearing apparels of the victim i.e. one faded orange colour polyster saree, one earth colour torn saya under seizure list Ext.5. On 09.02.2008 the Investigating Officer visited the spot, prepared spot map Ext.8. He sent the victim under police requisition to Government Hospital, Barbil for medical examination and accordingly Dr. Ratna Panda (P.W.10) of Government Hospital, Barbil examined the victim. The I.O. seized the collected blood sample, pubic hair, vaginal swab along with command certificate which was produced before him by the lady constable Basanti Patra under seizure list Ext.1. He sent the victim to District Headquarters Hospital, Keonjhar for ossification test and received the ossification test report Ext.9. On 09.09.2008 the appellant was arrested. The I.O. seized the wearing apparels of the appellant under seizure list Ext.2. He sent the appellant to Government Hospital, Barbil for medical examination. He also seized collected blood sample, semen, pubic hair of the appellant and then forwarded him to Court on 10.09.2008. The seized articles were sent to S.F.S.L., Rasulgarh, Bhubaneswar as per the order of the J.M.F.C., Barbil for chemical examination. After completion of investigation, P.W.11 submitted charge sheet on 07.01.2009 under Section 376 (2)(g) of the Indian Penal Code against the appellant and showing co-accused Benu @ Benudhar Nayak as an absconder. 3. After submission of charge sheet, the case was committed to the Court of Session after observing due committal procedure where the learned Trial Court framed charge against the appellant on 30.04.2009 under Section 376 (2)(g) of the Indian Penal Code and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution examined as many as eleven witnesses. 4. During course of trial, in order to prove its case, the prosecution examined as many as eleven witnesses. P.W.1 Kaibalya Mohanta was the constable attached to Bolani outpost who stated about the seizure of collected blood sample, pubic hair, vaginal swab of the victim along with command certificate of the lady constable under seizure list Ext.1. He is also a witness to the seizure of one half pant of the appellant under seizure list Ext.2 and seizure of collected blood sample, pubic hair and semen of the appellant along with command certificate of constable under seizure list Ext.3. P.W.2 Bidyadhara Pathuria was the constable attached to Bolani Outpost and he stated about the seizure of collected blood sample, pubic hair and vaginal swab of the victim along with command certificate of the constable under seizure list Ext.1. P.W.3 Niranjan Nayak is the husband of the victim and he is also the informant in the case. He stated that while he along with his cousin brother Binod Naik were searching for the victim on the date of occurrence, they found the victim sitting under a tree near the Railway bridge being full naked. P.W.4 is the victim. P.W.5 Gopinath Munda is the scribe of the First Information Report. P.W.6 Kalu Munda did not support the prosecution case. P.W.7 Fagu Mahakud stated about the seizure of wearing apparels of the victim under seizure list Ext.5. P.W.8 Smt. Amula Nayak did not support the prosecution case. P.W.9 Dr. Aswini Kumar Dash examined the appellant on 09.09.2008 at Government Hospital, Barbil and opined that the appellant was well capable of committing sexual intercourse. He collected the sample of semen, pubic hair and blood of the appellant. P.W.10 Dr. Ratna Panda examined the victim on 9.2.2008 at Government Hospital, Barbil and she proved her medical examination report Ext.7. P.W.11 Chitta Ranjan Nayak was the S.I. of police, Bolani Outpost who is the Investigating Officer in the case. The prosecution exhibited thirteen numbers of documents. He collected the sample of semen, pubic hair and blood of the appellant. P.W.10 Dr. Ratna Panda examined the victim on 9.2.2008 at Government Hospital, Barbil and she proved her medical examination report Ext.7. P.W.11 Chitta Ranjan Nayak was the S.I. of police, Bolani Outpost who is the Investigating Officer in the case. The prosecution exhibited thirteen numbers of documents. Exts.1, 2, 3 and 5 are the seizure lists, Ext.4 is the First Information Report, Ext.6 is the requisition -cum-examination report of the appellant, Ext.7 is the requisition format-cum-examination report of the victim, Ext.8 is the spot map, Ext.9 is the ossification test report of the victim, Ext.10 is the copy of forwarding report, Ext.11 is the seizure list, Ext.12 is the chemical examination report and Ext.13 is the serological examination report. The prosecution also proved three material objects. M.O.I is the Orange colour polyester sari, M.O.II is the Earth colour torn saya and M.O.III is the Nikkar Pant. 5. The defence plea of the appellant was one of denial. 6. Mr. Chita Ranjan Sahu, learned counsel appearing for the appellant contended that the impugned judgment and order of conviction is not sustainable in the eye of law and there is delay of two days in lodging the First Information Report and the victim’s statement is contradictory and since the victim was pregnant at the time of alleged occurrence and gang rape was alleged to have been committed on her, since there was no abortion, the theory of gang rape is falsified. Learned counsel for the appellant further urged that chemical examination report do not support the prosecution case. The learned counsel further submitted that the sentence imposed by the learned Trial Court is excessive and as the petitioner is in jail custody since 10.9.2008, in case the order of conviction is sustained, the sentence be reduced to period already undergone. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand contended that in a case of this nature, if the evidence of the victim is found to be clear, cogent and trustworthy, that itself is sufficient to convict the appellant. He urged that the victim has categorically implicated the appellant and two others to have committed rape on her and other persons have participated in dragging her and also committing same other overt acts. He urged that the victim has categorically implicated the appellant and two others to have committed rape on her and other persons have participated in dragging her and also committing same other overt acts. Learned counsel for the State further urged that the medical evidence clearly corroborates the evidence of the victim and the seizure of torn wearing apparels of the victim is an additional factor which lends support to her statement. The learned counsel further submitted that merely because as per the chemical examination report, blood stain or semen stain could not be detected on the wearing apparels of the victim that would not be a factor to reject the testimony of the victim. The learned counsel further submitted that the sentence which was imposed by the learned trial Court is the minimum sentence for the offence of gang rape and there being no adequate and special reason to reduce the sentence, the appeal should be dismissed. 7. Considering the rival contentions raised at the Bar and adverting to the evidence of the victim (P.W.4) who is the star witness of the prosecution, it is found that she has stated that on the date of occurrence while she was coming from Bolani Basti to her house by crossing the railway bridge, at that time, four persons arrived before her near railway bridge on her front as well as on the back and they forcibly caught hold her by giving a slap on her face and then they lifted her to a place at a little distance. She has further stated that the culprits removed her sari, saya and blouse and made her full naked and then the 1st accused namely Benu Naik forcibly raped her under a tree and then the appellant raped her and then another boy also forcibly raped her whose name she did not know. Then the victim lost her sense for which the culprits left the spot. The victim has stated that after the occurrence, when she regained her sense, she found herself in a full naked condition and at that time her husband P.W.3 along with Binod Naik arrived there and when her husband found her naked, he covered her body with a Chadar. The victim further stated that it is the ward member who scribed the F.I.R. which was presented at Bolani Out Post. The victim further stated that it is the ward member who scribed the F.I.R. which was presented at Bolani Out Post. The victim in the cross examination has specifically stated that except the appellant and Benu Naik, she did not know the name of other accused persons for which she could not be able to identify them. She has further stated that she had disclosed the name of the appellant as culprit before the Police and further stated that the appellant was no way related to her. Nothing substantial has been elicited in the cross examination of the victim to discard her version. At this stage, coming to the evidence of the doctor P.W.10, it is found that she examined the victim on 9.2.2008 at Government Hospital, Barbil and noticed that there were multiple partially healed abrasions all over her body, especially on buttocks, lower thighs, hands, arms and legs suggestive of friction on the rough surface and the age of the abrasions were within 2 to 5 days. The doctor further opined that the victim was 16 to 18 weeks pregnant at the time of her examination and she found there were old hymeneal tears present. She further stated that the symptom suggested that the victim was exposed to sexual intercourse previously. The doctor collected vaginal smear, vaginal swab, pubic hair, blood sample and handed it over to the constable and she proved her medical examination report Ext.7. The doctor has stated in the cross-examination that in case of forcible rape on a married lady, there is less possibility of happening of the injuries on private organ of the victim. Thus the evidence of the victim that she was subjected to gang rape is corroborated by the medical evidence. The victim has also disclosed about the incident before her husband P.W.3 and accordingly the name of the appellant finds place in the First Information Report which was lodged on 08.02.2008 at Bolani Outpost. 8. The contentions of the learned counsel for the appellant that there was two days delay in lodging the First Information Report for which the prosecution case should not be believed, is not acceptable. In a case of rape, the delay in lodging the First Information Report is not a factor to disbelieve the prosecution case. 8. The contentions of the learned counsel for the appellant that there was two days delay in lodging the First Information Report for which the prosecution case should not be believed, is not acceptable. In a case of rape, the delay in lodging the First Information Report is not a factor to disbelieve the prosecution case. The victim of rape and their family members are ordinarily reluctant to approach the police because of family prestige and after making up their mind to fight for the cause of justice, ultimately they decide to take recourse of the law and in the present case when the occurrence has taken place on 6.2.2008 in the evening hours and the FIR was lodged on 8.2.2008, it cannot be said that there was such an inordinate delay which would be sufficient to create doubt about the prosecution case. The contention of the learned counsel for the appellant that the victim was pregnant for 16-18 weeks at the time of occurrence and in that case, had she been subjected to gang rape, there would have been abortion is an hypothetical argument because to that effect nothing has been put to the doctor who examined the victim. There are some minor contradictions in the statement of the victim made during trial vis-a-vis her statement made before police inasmuch as the victim has not stated before police that the sexual intercourse was committed on her under a Tanta tree and that after commission of rape, she had sat under the Tanta tree but in my humble view, these contradictions are very insignificant and do not affect the credibility of the rape victim in any manner. So far as the chemical examination report is concerned, it appears that the saree, torn saya, blood sample, pubic hair, vaginal swab of the victim as well as half pant, blood sample, pubic hair and semen of the accused were sent for chemical examination. The report indicates that blood and semen stains could not be detected in the wearing apparels of the victim as well as on the half pant of the appellant. However sample blood of the victim as well as the appellant was found to be Group ‘A’. The report indicates that blood and semen stains could not be detected in the wearing apparels of the victim as well as on the half pant of the appellant. However sample blood of the victim as well as the appellant was found to be Group ‘A’. Even though the blood and semen stain could not be detected on the wearing apparels of the victim, it is not a ground to reject the prosecution case inasmuch as it is the prosecution case that the victim was raped while she was in a complete naked position and she sat under a tree in that position after the occurrence and thereafter her husband gave her a bed sheet. Therefore, as at the time of forcible sexual intercourse, the victim was not wearing any saree and saya, the non-finding of the semen stain or blood stain on her wearing apparels is not a factor to disbelieve the prosecution case. Similarly, non-finding of the blood or semen stain on the half pant of the appellant is not a factor to disbelieve that the appellant has participated in the crime. P.W.9, the doctor who examined the appellant on 09.09.2008 has specifically stated that the appellant is well capable of committing sexual intercourse. Thus the evidence of the victim is not only clear, clinching, trustworthy, reliable and above board but the same also gets corroboration from the medical evidence. The seizure of torn saya is an additional factor which lends support to her testimony. The disclosure made by the victim immediately after the occurrence before her husband is admissible as res gestae under Section 6 of the Evidence Act. Therefore, I do not find any infirmity or illegality in the impugned judgment and order of conviction of the learned Trial Court and accordingly, I am of the view that the learned Trial Court has rightly found the appellant guilty under Section 376 (2)(g) of IPC. 9. So far as sentence is concerned, the appellant is in custody since 10.09.2008 and he had undergone about seven and half years of imprisonment inasmuch as throughout during trial as well as during pendency of the appeal, the appellant was not released on bail. Section 376(2)(g) of the Indian Penal Code prescribes minimum punishment for ten years which may extend to life and shall also be liable to fine. Section 376(2)(g) of the Indian Penal Code prescribes minimum punishment for ten years which may extend to life and shall also be liable to fine. However, it is provided that the Court may for adequate and special reasons can impose a sentence of imprisonment of either description for a term of less than ten years. Therefore, in a case of gang rape, unless there are any adequate or special reasons, the Court is not empowered to impose any sentence lesser than the minimum as prescribed under the statute. In the present case, nothing has been brought on record and nothing has also been submitted by the learned counsel for the appellant to wake out any adequate or special reasons to reduce the sentence of imprisonment and since minimum sentence has been imposed, I also find there is no infirmity in the same. By passing a lenient sentence in a serious offence like gang rape, the punishment would lose its deterrent effect. Passing of appropriate sentence is always in the interest of society. The conduct of the appellant and the defenceless and unprotected state at the victim cannot be lost sight of while awarding sentence in an appropriate manner. Therefore, I am of the view that the impugned judgment and order of conviction of the appellant under Section 376(2)(g) of the Indian Penal Code and sentence of rigorous imprisonment for ten years with payment of fine of Rs.5,000/-, in default to undergo rigorous imprisonment for five months as was imposed by the learned Trial Court vide impugned judgment and order dated 24.08.2009 is legal, proper and justified. Accordingly, the criminal appeal being devoid of merits, stands dismissed. Appeal dismissed.