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2016 DIGILAW 1254 (ORI)

Ashok Behera @ Nila v. State of Orissa

2016-12-20

SATRUGHANA PUJAHARI

body2016
JUDGMENT S. PUJAHARI, J. - The appellant herein assails the impugned judgment dated 19.05.2010 passed by the learned Addl. Sessions Judge (FTC), Jagatsinghpur in S.T. No.3/10 of 2009 convicting him under Section 376 of the Indian Penal Code, 1860 (for short “the I.P.C.”) and sentencing him to undergo rigorous imprisonment for 8 years and to pay a fine of Rs.15,000/-, in default, to undergo R.I. for a further period of six months. 2. Brief fact of the prosecution as unfolded before the trial Court is that in the midnight of 02.07.2008 the victim, a minor girl around 13 years old, while defecating in a field, the appellant dragged her to a nearby building and on its verandah subjected her to sexual ravishment. After satisfying his sexual lust while the appellant was taking the victim towards agricultural field for obvious reasons, he was apprehended by two persons where he confessed to have committed rape on the minor. The fact was reported before the I.I.C., Paradip Police Station, pursuant to which Paradeep P.S. Case No.178 of 2008 was registered and investigation taken up. The victim was subjected to medical examination. On completion of investigation, charge-sheet was laid against the appellant for commission of offence under Section 376 of IPC. Subsequently, the case was committed to the Court of Sessions where the appellant pleaded not guilty to the charge and claimed to be tried. To substantiate its case, prosecution examined thirteen witnesses and exhibited twelve documents and also produced wearing apparels of the victim and that of the appellant as M.Os.I to VI. On assessment of the evidence, the learned trial Court held the appellant guilty and sentenced him as aforesaid. 3. Analyzing the evidence on record, the learned counsel for the appellant strenuously submits that the uncorroborated testimony of the victim being not above reproach, placing absolute reliance on such tainted evidence and holding the appellant guilty on such basis is unsustainable. The learned counsel also submits that there being mitigating circumstances galore, the learned trial Court should not have imposed sentence more than the minimum, as such, the sentence imposed being not commensurate with the crime, the same needs to be modified. 4. The learned counsel also submits that there being mitigating circumstances galore, the learned trial Court should not have imposed sentence more than the minimum, as such, the sentence imposed being not commensurate with the crime, the same needs to be modified. 4. Per contra, the learned counsel for the State assailing such contention contends that the uncorroborated testimony of the victim when not studded with infirmities and confidence inspiring one, the judgment of conviction and order of sentence do not call for any second opinion. 5. Before adverting to the contentions raised, I would like to place on record that in a case of this nature, the testimony of the victim must be appreciated in the background of the entire case. A woman who is the victim of sexual assault, is not an accomplice to the crime, but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same account of suspicion as that of an accomplice. Solitary version of a victim of rape if unblemished and of sterling worth, conviction can very well be recorded on the same, is well settled in law. In her inimitable style the victim has given a graphic narration of the events accusing the appellant as her rapist. She being an illiterate rustic and of tender age has given description of events which defence failed to dislodge and in spite of an incisive cross-examination, she stood firm. She had been to the field to defecate in that night which is hardly at a distance of 50 meters from her house. It is also not disputed that the verandah of the house where she was subjected to rape was found locked in that night. She has identified her wearing apparels. She has stated that she did not sustain any injury on her person. Since the appellant committed sexual intercourse only for a while there was no bleeding injury in her female genitalia. Once she was taken home she has narrated what had happened before her parents (P.Ws.2 and 3). The immediate conduct of the victim in disclosing about the incident before her parents (P.Ws.2 and 3) is admissible as res gestae under Section 6 of the Evidence Act as it is a spontaneous statement connected with the fact in issue and there was no time interval for concoction or fabrication. The immediate conduct of the victim in disclosing about the incident before her parents (P.Ws.2 and 3) is admissible as res gestae under Section 6 of the Evidence Act as it is a spontaneous statement connected with the fact in issue and there was no time interval for concoction or fabrication. There is undisputed evidence indicating that the victim was about 13 years on the date of commission of the crime. P.W.12, the Medical Officer who had examined the person of the victim, has stated that clinically she was a minor and Radiological examination taken for ossification test. However, the doctor did not notice any injury on her female genitalia or on her body person. Since there was no recent sign of any sexual intercourse, the learned counsel for the appellant submitted that the testimony of the victim cannot be relied upon. In this regard, the evidence of the victim reveals that since the sexual assault was for a while, no bleeding or injury on her female organ. The Apex Court in the case of Ranjit Hazarika vrs. State of Assam, (1999) 16 OCR (SC) 274, have observed that mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. Reverting back, the victim affirmatively deposed that she never bled per vagina since the intercourse was for a while. To constitute the offence of rape, penetration, however slight, is sufficient. The victim deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. When I find that in the cross-examination of the victim, nothing has been elicited corroding the veracity of her version on sexual assault or to suggesting any reason much less any plausible reason to falsely implicate the appellant, there is no reason to discard her version that she was sexually assaulted by the appellant which was put forth at the stake of her reputation. In such circumstances, the opinion of the doctor cannot throw out an otherwise cogent and trustworthy evidence of the victim of sexual assault on her by the appellant. The contention of the learned counsel for the appellant is, therefore, not acceptable. In such circumstances, the opinion of the doctor cannot throw out an otherwise cogent and trustworthy evidence of the victim of sexual assault on her by the appellant. The contention of the learned counsel for the appellant is, therefore, not acceptable. The Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vrs. State of Gujarat, AIR 1983 S.C. 753 , in paragraphs-10 and 11 have held as follows; “10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :- (1) A girl or a woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred, (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands’ family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent. 11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hang-over). It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hang-over). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of self-preservation. Or when the ‘probabilities factor’ is found to be out of tune.” 6. Admittedly, the victim had no axe to grind against the appellant. She is an illiterate rustic and deposed with aplomb accusing the appellant. Nothing substantial elicited in the cross-examination of the victim and her parents to discard her testimony. Only because the doctor did not find any mark of sexual intercourse, her version cannot be discarded. She was rescued from the agricultural field from the clutches of the appellant and immediately thereafter she having inculpated the appellant is itself a circumstance which lends further assurance on her testimony that what she has deposed is a fact and not a bundle of falsehood. That apart, she having no motive to falsely indict the person charged, corroboration from other oral version is not sine-qua-non to place reliance on such testimony. Law is well settled that if the version of the victim in her evidence is believable, the basic truth of her evidence is ascertainable and it is found to be credible and consistent, there is no law that itself cannot form the basis of conviction. Her evidence is at par with the evidence of an injured witness and is entitled to a great weight absence of corroboration notwithstanding. Her evidence is at par with the evidence of an injured witness and is entitled to a great weight absence of corroboration notwithstanding. That apart, the probabilities factor as emanating from record does not render the evidence of the victim unworthy of credence and not out of tune and when propriety of falsely implicating the appellant is not emanating from the record, then credibility of the victim cannot be questioned. In the instant case, the learned trial Court has considered all such aspects thread bare and in a reasonable judgment has held the appellant guilty. The victim being below sixteen years of age, when her evidence on sexual assault does not suffer from any basic infirmity, despite careful reappraisal, this Court is of the considered opinion that the conclusion of guilt of the appellant as recorded by the learned trial Court cannot be interfered with. However, the sentence imposed by the learned trial Court in the prevailing circumstances appears to be on slight higher side. There is no aggravating circumstances to maintain the extent of sentence recorded by the learned trial Court. Hence, this Court is inclined to reduce the substantive sentence of imprisonment to 7 (seven) years from 8 (eight) years R.I. imposed by the learned trial Court with the sentence of fine imposed and default sentence in the facts and circumstances of the case. Accordingly, while upholding the conviction of the appellant under Section 376 of IPC, he is sentenced to undergo R.I. for seven years and to pay a fine Rs.15,000/-, in default, to undergo R.I. for six months. 7. With such modification of sentence, this criminal appeal stands dismissed. LCR received along with the copy of this judgment be returned forthwith. Appeal dismissed.