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2016 DIGILAW 1272 (ORI)

Soumya Ranjan Pattanaik v. State of Orissa

2016-12-21

S.PUJAHARI

body2016
JUDGMENT S. PUJAHARI, J. - Since both these criminal appeals have been directed against the same impugned judgment of conviction and order of sentence dated 15.09.2010 rendered by the learned Special Judge, Keonjhar in Special Case No.23 of 2007, they are heard together and are disposed of by this common judgment to avoid any conflicting finding. 2. By the impugned judgment, the learned Special Judge, Keonjhar has convicted the appellant – Soumya Ranjan Pattnaik under Sections 376 and 506 of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs.50,000/-, in default, to undergo R.I. for a further period of three years under Section 376 of IPC and R.I. for a period of one year and to pay a fine of Rs.5000/-, in default, to undergo R.I. for a further period of three months respectively. The learned trial court has convicted the appellant – Subash Pattnaik under Section 506 of I.P.C. and sentenced him to undergo R.I. for one year and to pay a fine of Rs.5000/-, in default, to undergo R.I. for a further period of three months with further direction to pay the aforesaid fine amount, if realized from the appellants, to the victim as compensation. The learned trial court, however, found the appellants not guilty of the charge under Section 3(1)(x) of the S.C. & S.T. (P.A.) Act. 3. The facts of the case as disclosed by the prosecution are that an F.I.R. was lodged on 26.03.2007 at Soso Police Station incorporating, inter-alia, that the victim is a rustic illiterate Harijan spinster, aged about fourteen years, she was impregnated by appellant - Soumya Ranjan Pattnaik who finding her alone in her house, committed sexual intercourse by force on a day about five months preceding the date of filing of F.I.R. on 26.03.2007. It was under threat. Subsequently, thereafter on two other subsequent occasions the said appellant also subjected the victim to forcible sexual intercourse. Being under terrible fear, the victim could not divulge such act before her parents. Once, the local A.N.M. disclosed before the victim’s mother that her daughter is impregnated, the crestfallen mother then confronted the victim who divulged before her as to what had happened. Being under terrible fear, the victim could not divulge such act before her parents. Once, the local A.N.M. disclosed before the victim’s mother that her daughter is impregnated, the crestfallen mother then confronted the victim who divulged before her as to what had happened. The victim’s mother immediately rushed to the house of the appellants and when questioned the appellant – Subash Pattnaik as to why his son committed such a barbarous sexual act against an innocent minor girl, he threatened to torch the house and to drive out them from the village. Notwithstanding such threat, the victim’s mother immediately rushed to the Police Station and lodged the F.I.R. Thereafter, investigation was taken up and on completion thereof, charge-sheet was filed against the appellants before the S.D.J.M., Anandapur. In accordance with law the case was committed to the Special Court. After considering the materials brought on record and hearing the parties, the appellants were charged for the aforesaid offence. When the charge was read over and explained, the appellants pleaded not guilty and claimed for trial. The learned trial court after conclusion of the trial convicted the appellants as aforesaid. 4. Heard the learned counsel for the parties at length. 5. The learned counsel for the appellants would submit that there being no substantial material to hold that the victim was below sixteen years, there being inordinate delay of more than five months in lodging of F.I.R. and the version of the victim being not verses from bible, the conclusion of guilt recorded by the learned trial court is unsustainable. 6. Per contra, the learned counsel for the State submits that there is overwhelming material on record to hold that the victim is less than sixteen years of age where the consent being immaterial, the judgment of conviction and order of sentence do not call for any further consideration. 7. Before dilating upon the question raised, at the outset, I would like to examine the materials on record to ascertain whether finding of the learned lower Court that the victim was less than sixteen years of age is correct ? It is not disputed before me that the victim and her parents are illiterate rustic Harijans. The evidence of the victim’s mother, P.W.4 would go to show that the victim was 14 years old on the day when she was sexually assaulted by appellant - Soumya Ranjan Pattnaik. It is not disputed before me that the victim and her parents are illiterate rustic Harijans. The evidence of the victim’s mother, P.W.4 would go to show that the victim was 14 years old on the day when she was sexually assaulted by appellant - Soumya Ranjan Pattnaik. She has given her age as “42 years” on the date of her examination in Court on 17.12.2009. The victim who has been examined as P.W.6 on 17.12.2009, has stated on oath that she was 17 years old on that date and at the time of occurrence she was 14 years old. P.W.8 is the Medical Officer who with reference to the Xray taken and ossification test of the victim by the Radiologist opined that the age of the victim was in between 14 to 17 years on the date of her examination. His report is admitted as Ext.3. In the F.I.R. it is mentioned that the victim was 14 years old on the date of first coitus. This is the gist of the evidence brought on record to establish that the victim was less than sixteen years old on the date of alleged occurrence when on the first occasion the appellant - Soumya Ranjan Pattnaik subjected her to sexual assault. Admittedly, no birth certificate of the victim produced. It is to be remembered that the victim belonged to a remote rural area. Her parents and she herself are illiterate rustic Harijans. Nothing substantial being elicited to discard the age deposed by the victim and her mother, it would not proper to reject their testimony as to the age of the victim for non-submission of birth certificate or any School admission register. There is absolutely no variation in the age of the victim as given in the F.I.R. and deposed by the victim and her mother in Court on oath. There is no pinpoint challenge to their evidence relating to her age. Always mother is the best person to say as to correct age of her child. No doubt, the victim was sent for medical examination and her X-ray was conducted at Sub- Divisional Hospital, Anandapur for the purpose of ossification test. Unfortunately, neither the Radiologist who had taken X-ray nor the X-ray reports produced and proved in this case, although the doctor (P.W.9) with reference to the X-ray reports has stated that the victim was in between 14 to 17 years. Unfortunately, neither the Radiologist who had taken X-ray nor the X-ray reports produced and proved in this case, although the doctor (P.W.9) with reference to the X-ray reports has stated that the victim was in between 14 to 17 years. The lower age suggested by the doctor tallies with the age given by the victim and her mother. That being the nature of evidence, the learned trial court held that the victim was less than sixteen years old. No other contrary material when placed on record, I am of the considered opinion that the victim was less than 16 years old. The inference drawn from the evidence brought on record supports such conclusion. 8. When it is brought on record that the victim was sixteen years and less on the day when she was subjected to forcible sexual intercourse by the appellant - Soumya Ranjan Pattnaik, her evidence on oath is to be considered on such background keeping in mind that she is an illiterate rustic Harijan girl. The learned trial court had elaborately discussed the evidence of the victim and her mother. When I sifted that evidence, I find that she has given a vivid narration of the event notwithstanding that she is a rustic Harijan. She has deposed that her parents being labourer by profession, they usually remained absent from the home. On one such occasion at about 11 a.m. she reached home from pond where she had been to wash utensils, the appellant - Soumya Ranjan Pattnaik who was concealed in the house, suddenly gagged her mouth by a cloth, tied her hands by a rope, undressed her and forcibly raped her. Since he threatened her to kill his younger brother if she divulged such incident before her parents, out of fear, she remained dumb. Her evidence further reveals that in two subsequent events the said appellant also putting her under such threat, committed sexual intercourse despite her repeated objection. She has also deposed that after few months thereafter when she developed some symptoms, she approached the local A.N.M. where she ascertained from her that she was pregnant by five months. The A.N.M. also disclosed such fact before her mother whereafter the victim divulged everything before her mother explaining the reasons as to why she concealed such fact before them. Though the victim was subjected to crossexamination, but nothing elicited to discard her version outright. The A.N.M. also disclosed such fact before her mother whereafter the victim divulged everything before her mother explaining the reasons as to why she concealed such fact before them. Though the victim was subjected to crossexamination, but nothing elicited to discard her version outright. She denied the defence suggestion that appellant - Soumya Ranjan Pattnaik was not the author of that alleged pregnancy. Taking a leaf out of the evidence of the victim, her mother, P.W.4 has given a detail description of the events as to how she ascertained the factum of pregnancy from the local A.N.M. around 3 p.m. when she was coming from nearby forest with a bundle of firewood. She has also stated that on arrival home, being questioned, the victim narrated before her inculpating the appellant - Soumya Ranjan Pattnaik as the person who subjected her to rape and as to the circumstances in which she concealed the fact before them. Her evidence further reveals that when she rushed to the house of the appellants, the appellant - Soumya Ranjan Pattnaik denied his involvement and appellant – Subash Pattnaik threatened her to burn her house and oust her from village. She has proved the F.I.R. marked as Ext.1 and her signature therein marked as Ext.1/1. This is the gist of evidence adduced to inculpate the appellants with the offence charged. 9. I have given my anxious consideration to the evidence of P.Ws.4 and 6. Sifted the evidence with care and caution but did not find any substantial material to disbelieve and discard them. The witnesses are poorest of the poor Harijans having no axe to grind against the appellants. The learned counsel appearing on behalf of the appellants failed to convince this Court as to why such witnesses would come forward to depose against the appellants. Needless to say that in a case of this nature, particularly persons of such conservative Harijan people does not come forward to divulge such fact more so when the victim is a minor where sexual intercourse appears to have been made under influence of threat. That apart, since the victim is a minor, the question of ‘consent’ or no ‘consent’ does not affect her credibility. One cannot lose sight of the fact that no self-respect woman would put her honor at stake and falsely allege commission of rape on her. That apart, since the victim is a minor, the question of ‘consent’ or no ‘consent’ does not affect her credibility. One cannot lose sight of the fact that no self-respect woman would put her honor at stake and falsely allege commission of rape on her. That being so, the testimony of the victim must be appreciated in the background of the entire case. The human psychology and behavioural probability must be looked into while appreciating such evidence. The inherent bashfulness and feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. It is also well settled law that testimony of an unsophisticated Harijan woman can be accepted in spite of some minor and nominal discrepancies. It is also settled law that a girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity has ever occurred. She would be conscious of danger of being ostracized by the society and being looked down by the society including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her matrimonial home happiness being shattered. If she is unmarried she would apprehend that it would be difficult to secure an alliance with suitable match from a respectable or an acceptable family. In view of these and similar factors, the victim 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 built-in assurance that the charge is genuine rather than fabricated. It is also established law that a girl or woman of such non-permissive society would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. Here, what the facts and circumstances reveals the victim would not have divulged at the risk of her chastity if she was not pregnated at the instance of appellant – Soumya Ranjan Pattnaik. Once she found to be impregnated she had no other option left but to divulge the name of the person who caused such act. Here, what the facts and circumstances reveals the victim would not have divulged at the risk of her chastity if she was not pregnated at the instance of appellant – Soumya Ranjan Pattnaik. Once she found to be impregnated she had no other option left but to divulge the name of the person who caused such act. In such circumstances, when the victim inculpate the appellant - Soumya Ranjan Pattnaik being conscious of the danger of inculpating such influential persons like the appellants, there is inbuilt assurance that charge is genuine rather than fabricated. 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 the victim of sex-offence is entitled to a great weight notwithstanding delay in lodging information or absence of corroboration. I find, as noticed by the learned trial court, there is no basic infirmity or embellishment in the evidence of the victim and her mother. Their testimony inspires confidence and is found to be reliable. The learned trial court has discussed threadbare such evidence which I noticed sieve through the judicial colander and passes through the gauges. In such scenario, I would like to place absolute reliance on the testimony of the victim to hold that on that fateful day which is about five months preceding 26.03.2007, the appellant - Soumya Ranjan Pattnaik subjected the victim to sexual assault knowing that she was a minor and which coitus possibly caused her pregnancy found by the A.N.M. and the record reveals that she had given birth to a male child on 22.03.2009. Attending and the succeeding circumstances are consistent with broad human probability and there is no compelling reasons to differ from the conclusion arrived by the learned trial court that the evidence of the victim is clear, cogent and convincing and can be relied upon to hold that it was appellant - Soumya Ranjan Pattnaik who had raped the minor victim girl attracting the mischief of Section 376 of IPC. Therefore, this Court is of the view that the finding of guilt under Section 376 of IPC against appellant - Soumya Ranjan Pattnaik is unassailable and cannot be interfered with. 10. Therefore, this Court is of the view that the finding of guilt under Section 376 of IPC against appellant - Soumya Ranjan Pattnaik is unassailable and cannot be interfered with. 10. Now adverting to the conviction of the appellants under Section 506 of IPC, I find there is absolutely no material to hold that the appellants ever intimidated the victim’s mother within the meaning of Section 503 of IPC. In the F.I.R. it is incorporated that once P.W.4 approached the appellants and questioned them as to why appellant - Soumya Ranjan Pattnaik raped her daughter, the appellant – Subash Pattnaik threatened to physically assault her and also threatened to torch her house. However, as P.W.4 she has deposed that appellant – Subash Pattnaik threatened her to burn her house and to drive them from village. Except this bald version, there is nothing on record to support the charge under Section 506 of IPC. To establish an offence of “criminal intimidation” punishable under Section 506 of IPC, there must be an ‘intent’ to cause alarm to the former by a threat to him of injury to himself or to the latter. The ‘intent’ itself might be complete, though it could not be affected. But, the existence of the intent seems essential to the offence, as also and equally to the attempt to commit the offence, since otherwise the attempt would be to do something not constituting the offence. Section 506 of IPC relates to punishment for “criminal intimidation”. The gist of the offence is effect which the threat is intended to have upon the mind of the person threatened. To bring an offence within such parameter, the threat should be a real one and not just a mere word. When the person uttering it does not exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually the offence of criminal intimidation punishable under Section 506 of IPC goes out of the way. [See 1989 CRI.L.J. 669 (Mad.), (Noble Mohandass vrs. State of Tamilnadu)]. I would repeat a threat, in order to be indictable, must be made with intent to cause alarm to the victim. Mere vague allegation by the accused that he is going to torch the house or to drive them from village cannot amount to criminal intimidation. [See 1989 CRI.L.J. 669 (Mad.), (Noble Mohandass vrs. State of Tamilnadu)]. I would repeat a threat, in order to be indictable, must be made with intent to cause alarm to the victim. Mere vague allegation by the accused that he is going to torch the house or to drive them from village cannot amount to criminal intimidation. To answer “criminal intimidation” the threat must cause, inter-alia, alarm in the mind of the victim. It must be shown in order to prove “criminal intimidation” that threat was with intent to cause alarm to that person. Unless that intent is proved, the charge must fail. 11. Reverting back to the evidence of P.W.4, that sworn testimony does not show that she was ever felt alarmed from the word uttered by the appellant – Subash Pattnaik. I do not find any clear and cogent materials from such evidence of P.W.4 to hold the appellants guilty of the charge under Section 506 of IPC. The learned trial court, as it appears, erred in law while holding the appellant guilty of the charge under Section 506 of IPC. The conviction of the appellants under Section 506 of IPC is, therefore, unsustainable and liable to be set-aside. 12. Now coming to the extent of sentence imposed under Section 376 of IPC against the appellant - Soumya Ranjan Pattnaik, I am of the considered opinion that in the peculiar facts and circumstances, if the substantive sentence of imprisonment is reduced to seven years maintaining the fine amount of Rs.50,000/- that would meet the ends of justice. 13. Resultantly, CRLA No.472 of 2010 filed by the appellant – Subash Pattnaik is allowed. However, CRLA No.551 of 2010 filed by the appellant - Soumya Ranjan Pattnaik is allowed in part. The substantive sentence imposed under Section 376 of IPC against the appellant - Soumya Ranjan Pattnaik is reduced to seven years R.I. and fine amount of Rs.50,000/- with default sentence are maintained. The fine amount of Rs.50,000/- (rupees fifty thousand), if realized, shall be paid to the victim as compensation. L.C.R. received be sent back forthwith along with a copy of this Judgment. Ordered accordingly.