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2016 DIGILAW 325 (ORI)

Nankun Naik v. State of Orissa

2016-04-25

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. Child is a symbol of simplicity. Childhood is a period of innocence and purity. Acquiring the trust of a child is very easy. Betraying her trust and abusing her sexually taking advantage of her simplicity is not only shameful, iniquitous but also inhuman. The physical and emotional pains of sexual abuse create a deep and unending agony on her. She cries many a time in solitude remembering the horrifying experiences. Sometimes she gets a very little support from her family and relatives. Preventive education of sexual abuse at the young age, family support and security to the child can reduce such excruciating happenings in future. 2. The appellant Nankun Naik faced trial in the Court of learned Sessions Judge-cum-Special Judge, Sundargarh in Sessions Trial No. 4 of 2007 for offences punishable under section 376 of the Indian Penal Code and section 3(1)(x)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’). The learned Trial Court vide impugned judgment and order dated 02.03.2009 while acquitting the appellant of the charge under section 3(1)(x)(xi) of 1989 Act has been pleased to convict him under section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/- (rupees five thousand), in default, to undergo rigorous imprisonment for six months. 3. The prosecution case as per the First Information Report lodged by one S.B. (hereafter ‘the victim’) who belonged to Scheduled Caste community is that her parents had been to her uncle’s house on the eve of Durga Puja and she along with her brother and grandmother were in the house. On 18.10.2005 one opera show was going on at Kanika on the eve of Manikeswari Puja. The appellant who is a co-villager of the victim came to her house at about 8 p.m. on 18.10.2015 and asked the victim to accompany him to visit the opera show with his younger daughter and further told her that he would bear the expenses of the ticket of the opera show. The appellant further told that his daughter and the other girls were also waiting to visit the opera show. The appellant further told that his daughter and the other girls were also waiting to visit the opera show. The simpleton victim believed the appellant and accompanied him on his cycle but on the way near Khajuribania, the appellant started misbehaving with the victim and when she shouted, she was forcibly taken inside the jungle. The appellant removed her dresses forcibly and committed rape on her and threatened her not to disclose the incident in the village otherwise she would face dire consequences and thereafter the appellant left the victim near her house and with much difficulty, the victim returned home. It is the further prosecution case that on 05.11.2005 when the parents of the victim returned home, the victim narrated the entire incident before her mother and then accompanied her father to the Police Station and presented the First Information Report on 06.11.2005. On the basis of the written report of the victim, P.W. 13 Tarakanta Khatua, who was posted as the Junior Sub-Inspector, Hemgir Police Station registered Hemgir P.S. Case No. 100 of 2005 under section 376(2)(f) of the Indian Penal Code read with section 3(1)(xii) of the 1989 Act in the absence of the officer in charge and took up investigation of the case. During course of investigation, P.W.13 examined the victim and her parents, visited the spot and prepared a spot map Ext.13. He also seized broken bangles of the victim from the spot and prepared a seizure list Ext.2. He also seized one green colour chudidar, one green colour Punjabi, one green colour odahani and one chadi on the production of the victim which were seized as per seizure list Ext.3. The victim was sent to the District Headquarters Hospital, Sundargarh for her medical examination under police requisition, where she was examined by Dr. Subashini Pandey (P.W.8) on 07.11.2005 who proved her report Ext.4. P.W.12 Kartika Chandra Swain, D.S.P., Crime, Sundargarh as per the order of S.P., Sundargarh took over the charge of investigation of the case on 7.11.2005 and he revisited the spot, examined the witnesses, arrested the appellant, seized one check lungi from his possession under the seizure list Ext.5, sent the appellant for his medical examination to Hemgir U.P.H.C. under police requisition where the appellant was examined by Dr. Sumitra Kumar Patel (P.W.11) on 07.11.2005. P.W.12 seized one envelope containing sample semen, pubic hair and sample blood under seizure list Ext.6. Sumitra Kumar Patel (P.W.11) on 07.11.2005. P.W.12 seized one envelope containing sample semen, pubic hair and sample blood under seizure list Ext.6. He also seized one envelope containing pubic hairs, vaginal swab of the victim under seizure list Ext.7. He produced the material objects before S.D.J.M., Sundargarh for sending the same to the Deputy Director, R.F.S.L., Sambalpur for chemical analysis. He obtained a report from the Tahasildar, Hemgir that the victim belonged to Mehera by caste which comes under scheduled caste and the appellant was Meher which was coming under general caste. He also received chemical analysis report which has been marked as Ext.12. On completion of investigation, charge sheet was submitted against the appellant on 23.02.2006 under section 376 of the Indian Penal Code read with section 3(1)(xii) of the 1989 Act. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 376 of the Indian Penal Code and section 3(1)(x)(xi) of the 1989 Act on 29.08.2007 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. 5. During course of trial, in order to prove its case, the prosecution examined thirteen witnesses. P.W.1 is the victim who is also the informant in the case. P.W.2 Biranchi Barik is the father of the victim and he states about his and his wife’s absence from the house at the time of occurrence and further stated about the disclosure made by the victim about the incident after their return from his father-in-law’s house. P.W.3 is the mother of the victim and she has stated like P.W.2 about disclosure made by the victim about the occurrence. P.W.4 Sunil Kumar Bhoi is the scribe of the F.I.R as per the instruction of the victim. P.W.5 Bairagi Pradhan did not support the prosecution case of seizure of different articles. P.W.6 Nirmala Chandra Bhoi stated about the seizure of the wearing apparels of the victim by police on her production. P.W.7 Purna Chandra Pujahari did not support the prosecution case of seizure of different articles. P.W.8 Dr. Subashini Pandey was the lady Asst. Surgeon, District Headquarters Hospital, Sundargarh who examined the victim on police requisition on 07.11.2005 and proved her report Ext.4. P.W.7 Purna Chandra Pujahari did not support the prosecution case of seizure of different articles. P.W.8 Dr. Subashini Pandey was the lady Asst. Surgeon, District Headquarters Hospital, Sundargarh who examined the victim on police requisition on 07.11.2005 and proved her report Ext.4. P.W.9 Budhan Chandra Urmal was the homeguard attached to Hemgir Police Station who did not support the prosecution case for which he was declared hostile. P.W.10 Md. Ahmed was the constable attached to Hemgir Police Station who stated about the seizure of different articles under seizure list Exts.6 and 7. P.W.11 Dr. Sumitra Kumar Patel was the Asst. Surgeon, U.P.H.C., Hemgir who examined the appellant on 7.11.2005 on police requisition and proved his report Ext.8. P.W.12 Kartika Chandra Swain, D.S.P., Crime, Sundargarh is the Investigating Officer. P.W.13 Tarakanta Khatua is the Junior Sub-Inspector, Hemgir police station who not only registered the F.I.R but also investigated the case at initial stage. No witnesses were examined on behalf of the defence. The prosecution exhibited thirteen documents. Ext.1 is the F.I.R, Exts.2, 3, 5, 6, 7 are the seizure lists, Ext.4 is the medical examination report of the victim, Ext.8 is the medical examination report of the appellant, Ext.9 is the forwarding letter of sending the material objects for chemical analysis, Ext.10 is the requisition to the Tahasildar, Ext.11 is the report of the Tahasildar regarding caste of the victim and the appellant, Ext.12 is the chemical analysis report and Ext.13 is the spot map. 6. The defence plea of the appellant was one of denial and it was suggested to the relevant witnesses that the victim was the mistress of the appellant and there was illicit relationship between the petitioner and the victim. 7. The learned Trial Court held that the medical examination of the victim was not conducted immediately after the incident and it was done 18 days after the incident and this occasioned because of delayed lodging of the F.I.R and it was quite natural that the injury, if any, the victim had sustained on her private part had healed up by the time she was examined and therefore the opinion expressed by P.W.8 will not affect the prosecution case and the version of the victim that she was subjected to forcible intercourse by the appellant which was otherwise found to be true and trust worthy. It was further held that the victim was subjected to searching and incisive cross-examination by the defence, but nothing was elicited to impeach her credibility or to cast a doubt on her veracity and the victim also narrated the incident to her parents that she had been ravished by the appellant and such disclosure being relevant fact admissible under section 8 of the Evidence Act gives credence to the victim’s version on sexual molestation. It was further held that the victim has explained delay in lodging the F.I.R satisfactorily and mere delay in lodging the F.I.R does not in any way renders the prosecution case as false. It was further held that the victim was under 16 years of age when the appellant committed the rape on her and absence of injury on the private parts of the victim would not necessarily indicate that she was a consenting party to the rape and since she is proved to the below 16 years of age, her consent is immaterial. It was further held that the victim belonged to scheduled caste community and the appellant is a member of general category and since neither the F.I.R nor the evidence revealed that the appellant ravished the victim because she belonged to scheduled caste, the ingredients of offence under section 3(1)(x)(xi) of the 1989 Act are not attracted. In the ultimate analysis, the learned Trial Court held that the prosecution has been able to bring home the charge under section 376 of the Indian Penal Code against the appellant beyond reasonable doubt but not under section 3(1)(x)(xi) of the 1989 Act. 8. The victim was examined in the Trial Court on 14.01.2008 and she stated her age to be 16 years and further stated that the occurrence took place when she was aged about 11 to 12 years. She stated that on the occurrence day at about 8 to 9 p.m. the appellant came to her house and called her to visit the opera with his daughter and when she denied visiting the opera as she had no money, the appellant told that he would pay the charge of the ticket for the opera. She further stated that on the way the appellant took her to bushy jungle, torn her salwar and forcibly committed intercourse with her against her will and consent. She further stated that on the way the appellant took her to bushy jungle, torn her salwar and forcibly committed intercourse with her against her will and consent. She further stated that at the time of sexual intercourse, the appellant threatened her to kill in case she raised shout. She further stated that her parents were absent from the house at the time of occurrence and when they returned, she narrated the incident before them and then she lodged the First Information Report. In the cross-examination it was suggested to the victim that she had illicit relation with the appellant prior to the occurrence for which her father was expressing anger to her as well as to the appellant. The victim denied such suggestion. It was further suggested that she was aged about 16 to 17 years and that she voluntarily accompanied the appellant to see the opera. The victim also denied such suggestion. The victim has categorically stated that she has a son who is aged about one year and that child was born out of forcible intercourse by the appellant. Nothing has been elicited in the cross-examination to disbelieve the statement of the victim. P.W.2 Biranchi Barik who is the father of the victim and P.W.3 Tulasi Barik who is the mother of the victim have stated that when they returned home, P.W.1 disclosed before them about the occurrence. Thus the evidence of the victim gets corroboration from the evidence of P.W.2 and P.W.3. P.W.2 stated that the F.I.R. was scribed by the Sarpanch. P.W.4 Sunil Kumar Bhoi stated that he scribed the F.I.R. when the victim approached him being accompanied by her father. The doctor P.W.8 who examined the victim on 07.11.2005 has opined that on examination of hymen, she found tear present but healed up. She found no matting of pubic hair and no bleeding or discharges on the female genital. On pathological examination, the doctor found that the spermatozoa were absent, blood group was ‘A’ positive and V.D.R.L. was non-reactive. She stated that the age of the victim as per ossification test was found to be below sixteen years and there was no sign or symptom of recent sexual intercourse. The doctor P.W.11 who examined the appellant on 07.11.2005 has opined that he found the appellant capable of committing sexual intercourse. She stated that the age of the victim as per ossification test was found to be below sixteen years and there was no sign or symptom of recent sexual intercourse. The doctor P.W.11 who examined the appellant on 07.11.2005 has opined that he found the appellant capable of committing sexual intercourse. On examination of the clothing of the appellant, he found no semen stain suggesting sexual intercourse. He found no bodily injury suggesting forcible sexual intercourse and no sign and symptoms of recent sexual intercourse. The chemical analysis report indicates that blood and semen stains could not be detected either in the wearing apparels of the victim or that of the appellant. 9. Mr. Arunendra Mohanty, learned counsel was engaged as Amicus Curiae on behalf of the appellant and he was supplied with the paper book. He placed the evidence of the witnesses as well as the impugned judgment and contended that there is inordinate delay in lodging the First Information Report and the explanation offered by the prosecution is not at all satisfactory. He further contended that it sounds highly improbable that in absence of the parents of the victim, the grandmother who was there in the house would allow the victim to accompany the appellant in the night to visit the opera show. He further contended that in absence of any medical corroboration to the accusation of forcible sexual intercourse, the evidence of the victim cannot be accepted and therefore the appellant should be given benefit of doubt. Mr. Arupananda Das, learned Additional Government Advocate on the other hand while supporting the impugned judgment and order of conviction submitted that the evidence of the victim is clear, cogent, trustworthy and her evidence gets corroboration from the evidence of her parents. He further contended that the prosecution has offered explanation for delay in lodging F.I.R. and in such type of cases, delay in lodging F.I.R. is not a factor to throw away the prosecution case when due to helplessness in the absence of her parents, the victim could not lodge the F.I.R. promptly and immediately after her parents returned home, she disclosed about the incident and accordingly the F.I.R. was lodged. The learned counsel further contended that there are ample materials on record to show that the victim was under sixteen years of age at the time of occurrence and due to the unfortunate incident, she became pregnant and delivered a child and therefore there is no illegality or infirmity in the impugned judgment. 10. Adverting to the contentions raised by the learned counsels for the respective parties, since it is a case of rape, the evidence of the victim is of paramount consideration. If her evidence is found to be creditworthy, it can be acted upon without any corroboration in material particulars. The evidence of the victim of rape must be examined as that of an injured witness. As already discussed, the evidence of the victim appears to be creditworthy and not shaken in the cross-examination. No doubt the occurrence in question stated to have taken place on 18.10.2005 and the F.I.R. was lodged on 06.11.2005 but from the evidence of the victim and her parents, it is apparent that her parents were not present when the occurrence took place and they had been to the house of the father-in-law of victim’s father on the eve of Dussehra Puja festival. The victim narrated the incident before her parents immediately after their return and accordingly the F.I.R. was scribed and presented in the Police Station. 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. In view of the explanation offered by the prosecution regarding delay in lodging F.I.R., the prosecution case cannot be doubted. The age of the victim has been proved to be less than sixteen years at the time of occurrence. The oral evidence of the victim as well as the medical evidence on this aspect has remained unchallenged. In the cross-examination of the doctor who examined the victim, the defence has brought out that the victim was a full grown up lady aged about fourteen to sixteen years. The doctor has denied the suggestion that the victim was aged around twenty years. The doctor found that there is an old tear in the hymen present which was healed. In the cross-examination of the doctor who examined the victim, the defence has brought out that the victim was a full grown up lady aged about fourteen to sixteen years. The doctor has denied the suggestion that the victim was aged around twenty years. The doctor found that there is an old tear in the hymen present which was healed. Even though the doctor has not found any other symptoms on the victim but since there was sufficient time gap between the date of occurrence and the medical examination, the findings of the doctor will no way affect the prosecution case regarding commission of rape on the victim. The statement of the victim that she has delivered a son on account of the forcible sexual intercourse by the appellant also lends support to the prosecution case. The contentions raised that the grandmother of the victim would not have left her in the company of the appellant to visit the opera show are not acceptable. There is no cross-examination on this aspect regarding the age of the grandmother and whether the victim informed her while going to the opera show. The victim has stated that she used to address the appellant as uncle who belonged to her village. The appellant had given assurance to bear the cost of opera show ticket to the victim and therefore the victim reposed trust on the appellant and accompanied him. Even though the seized wearing apparels of the victim and the appellant on chemical analysis found not to have contained any blood and semen stain but one should not forget that there was sufficient time gap between the date of occurrence and the seizure and as such washing of the clothes in between is not improbable. 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 leaned Trial Court has rightly found the appellant guilty under section 376 of the Indian Penal Code. The sentence imposed by the learned Trial Court is the minimum sentence prescribed for such offence and though the Court can reduce the sentence of imprisonment for a term less than seven years for any adequate and special reasons to be mentioned in the judgment, no such reasons are available on record or pleaded during arguments. The sentence imposed by the learned Trial Court is the minimum sentence prescribed for such offence and though the Court can reduce the sentence of imprisonment for a term less than seven years for any adequate and special reasons to be mentioned in the judgment, no such reasons are available on record or pleaded during arguments. The appellant is a married man having children and he has spoiled the life of a young girl taking advantage of her simplicity. Therefore, the sentence imposed by the learned Trial Court calls for no interference. Therefore, I am of the view that the impugned judgment and order of conviction of the appellant under section 376 of the Indian Penal Code and sentence of rigorous imprisonment for seven years with payment of fine of Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for six months is legal, proper and justified. 11. The learned Additional Government Advocate submitted on 29.02.2016 that he has written letter to the Inspector-in-Charge, Hemgir Police Station in the district of Sundargarh to make an enquiry with regard to the present status of the victim and her child and whether the victim has married in the meantime or not and whether the child is alive or not. On instruction, he placed a letter dated 02.03.2016 written by the Inspector-in-Charge, Hemgir Police Station addressed to the learned Advocate General, Odisha, Cuttack wherein it is mentioned that the victim is living in her father’s house at Burta with her son Tarjan Barik (date of brith-28.07.2006) and the victim is maintaining her livelihood by working as a daily labourer. It is further mentioned that the victim is still unmarried and her child is studying in Class-IV in a Primary School. In view of the precarious condition of the victim of rape who is now maintaining herself and her minor son doing labour work and also taking care of the education of her son, it is felt necessary to recommend the case of the victim to the District Legal Services Authority, Sundargarh to examine the case of the victim after conducting necessary enquiry in accordance with law for grant of compensation under the “The Odisha Victim Compensation Scheme, 2012”. Let a copy of this order be sent to District Legal Services Authority, Sundargarh for compliance. 12. Let a copy of this order be sent to District Legal Services Authority, Sundargarh for compliance. 12. In view of the aforesaid premised reasons, I am of the considered view that the impugned judgment and order of conviction and the sentence passed there under by the learned Trial Court does not suffer from any infirmity and therefore, I am not inclined to interfere with the same. 13. The appellant seems to have initially produced before the Court after arrest during investigation on 08.11.2005 and he was released on bail on 05.05.2006. After the judgment of the learned Trial Court pronounced on 02.03.2009, he was again remanded to custody. He has not been granted bail by this Court in this appeal. Thus the appellant has remained in custody for about seven years and six months. Since the appellant had already undergone the period of sentence as was imposed by the learned Trial Court, he should be set at liberty forthwith, if not already released, if his detention is not otherwise required in any other case. Lower Court’s record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action. 14. Resultantly, the Jail criminal appeal, being devoid of merit, stands dismissed.