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2016 DIGILAW 786 (ORI)

Harihar Padhan v. State of Odisha

2016-09-12

D.DASH

body2016
JUDGMENT : The appellant in this appeal has called in question the judgment of conviction dated 27.03.2010 passed by the learned Assistant Sessions Judge, Sonepur in S.C. No. 03/3 of 2009 holding him guilty for commission of offence under section 450/376 of IPC, followed by the order of sentence, whereby he has been directed to undergo rigorous imprisonment for a period of 8 years with payment of fine of Rs.10,000/- in default to suffer rigorous imprisonment for one year for the offence under section 376 of IPC and to undergo rigorous imprisonment for a period of five years with payment of fine of Rs.5,000/- with default stipulation to suffer rigorous imprisonment for one year for offence under section 450 of IPC with usual direction of set off under section 468 of Cr.P.C., along with the stipulation that the substantive sentences would run concurrently and for payment of the realized fine if any to the victim girl as a measure of compensation under section 357 of the Code of Criminal Procedure. 2. Prosecution case is that the victim girl with her family members while were residing in their house in village Judhisthirpur, on 17.09.2008 night around 11.00 pm some sound was heard by the mother of the victim, so she got up. She found the appellant entering into the room of the victim. Suspecting that the said entry of the appellant to the room was with an evil intention, she bolted the door from outside and ran to her brother’s house. Mother of the victim then called her brother and they both came to the house. They asked the appellant as to why he had entered into the room during this odd hour of night. The appellant then expressed his desire that he would marry the victim. The appellant remained confined in that room till sun rise. In the morning, the victim being asked told that the appellant promising her to marry, had sexual intercourse in the night as also on previous occasions. Ultimately, on 18.09.2008 at about 1.00 pm maternal uncle of the victim lodged the F.I.R. Ext. 4 at the concerned police station which necessitated the registration of the case against the appellant for alleged commission of offence under section 450/376 of IPC. The investigation commenced. In course of investigation, the informant, victim and others were examined and their statements were recorded. 4 at the concerned police station which necessitated the registration of the case against the appellant for alleged commission of offence under section 450/376 of IPC. The investigation commenced. In course of investigation, the informant, victim and others were examined and their statements were recorded. The investigating officer also got the victim girl as well as the appellant medically examined and proceeded to seize their wearing apparels. The school admission register of the victim girl and other materials were seized. The appellant was then arrested and forwarded to the court. Finally, on completion of investigation, charge-sheet was submitted against the appellant to face the trial for alleged commission of offence under section 450/376 of IPC. Learned Assistant Sessions Judge has found the appellant guilty for the offences as stated above and sentenced him as aforesaid holding the prosecution to have proved its case beyond reasonable doubt while finding the denial plea taken by the appellant as unacceptable. 3. It may be stated that during trial, the prosecution has examined the victim, P.W. 1, the maternal uncle of the victim as P.W. 3 and mother of the victim as P.W. 5. P.W. 2 and 4 have also been examined as post occurrence witnesses along with younger brother of the informant as P.W. 6. The Investigating Officer has been examined as P.W. 7, Sarapanch of the village and Headmaster of the Upper Primary School where the victim had taken admission have been examined as P.W. 8 and 9 respectively. The medical officer has also tendered his evidence and proved the reports so furnished on police requisition. The appellant has examined one witness namely, Sitaram Pradhan as D.W. 1in his defence. Besides the oral evidence coming from the lips of the above witnesses, the prosecution has proved the seizure lists concerning the seizure of the wearing apparels of the victim as also the appellant which have been admitted in evidence and marked as Ext. 1 and 2. The F.I.R. in the case has been admitted in evidence and marked Ext. 4. Besides the above other important documents are the medical examination reports and the relevant entry in the School admission register marked as Exts.7, 8 and 9 respectively. 4. Learned counsel for the appellant has placed the evidence of the witnesses as well the impugned judgment with reference to the relevant conclusions in holding the appellant guilty for the offences. 4. Besides the above other important documents are the medical examination reports and the relevant entry in the School admission register marked as Exts.7, 8 and 9 respectively. 4. Learned counsel for the appellant has placed the evidence of the witnesses as well the impugned judgment with reference to the relevant conclusions in holding the appellant guilty for the offences. According to him, the prosecution story sounds quite improbable and the evidence of the victim in so far as the sexual intercourse is concerned as against her consent and giving her false promises of marriage is not believable. According to him, on the basis of evidence, her age cannot be found to be below 16 years in the year 2006. He further contends that when the evidence remains that there was ill-feeling between the informant and the appellant, the entire prosecution case ought to be viewed with suspicion and in that light if the evidence is thoroughly scanned, the finding of guilt cannot sustain 5. Learned Additional Sanding Counsel while supporting the judgment of conviction and order of sentence contends that the evidence of the victim here is clear, cogent and trustworthy and therefore there remains no reason to even doubt the same. It is also his contention that in this case, the solitary testimony of the victim can form the foundation of finding of guilt. However, as per his submission, even otherwise, the said evidence has also received corroboration from other sources. He further contends that the evidence on record clearly suggest that the victim was less than 16 years of age in the year 2006 at the time of first incident of sexual intercourse as stated by the victim. 6. The settled position of law is that in case of rape, the evidence of victim assumes importance and if her evidence is found to be free from any such basic infirmity and is creditworthy even without any corroboration, the said solitary testimony can be acted upon so as to form the foundation of guilt. 7. First of all coming to the age of the victim, it is the evidence of the victim, P.W. 1 that in the year 2006, she was reading in Class-VI, when the appellant was a teacher in the said School in village Judhisthirpur. The medical officer examined as P.W. 7, in his report, Ext. 7. First of all coming to the age of the victim, it is the evidence of the victim, P.W. 1 that in the year 2006, she was reading in Class-VI, when the appellant was a teacher in the said School in village Judhisthirpur. The medical officer examined as P.W. 7, in his report, Ext. 8 given after the radiological examination has indicated the age of the victim to be 17 years with one year margin on both side as in the year 2008. The date of birth of the victim as has been indicated in the school admission register is 13.09.1994. Therefore, the finding upon assessment of evidence recorded by the trial court that the victim in the year 2006 was below 16 years of age has to be accepted as the just and proper outcome upon appreciation of evidence. 8. It has been stated by the victim that in the year 2006 after the school hour, the appellant called her to the class room and when abiding by his direction, she went there, the appellant told her to have been loving her and then undressed her. It is further stated that the appellant then himself got undressed and made the victim lie on the floor, whereafter committed sexual intercourse. The victim has stated that for the said sudden act, she went to semi-conscious state and after few minutes when she protested, she was threatened not to disclose the same to anybody in the family. She has expressed during her evidence that she did not disclose the incident being frightened lest she would be driven out of the school. During cross-examination, she has further elaborated the details of the incident on that day and that she had also attempted to runaway at the first blush but was chased and caught hold of tightly by the appellant. The specific date of the said incident also has been deposed during cross-examination that it was on 17th March 2006. Her further evidence is that on 23.05.2008, the appellant had concealed himself near the boundary of their house and when her maternal uncle’s son shouted, he ran away. It is next stated that on 17.09.2008 around 11.00 pm, the appellant secretly made entry into her room but then her mother got up and bolted the door from outside. Her further evidence is that on 23.05.2008, the appellant had concealed himself near the boundary of their house and when her maternal uncle’s son shouted, he ran away. It is next stated that on 17.09.2008 around 11.00 pm, the appellant secretly made entry into her room but then her mother got up and bolted the door from outside. It is also in her evidence that during that night, the appellant twice assaulted her sexually and then consoled her by expressing his assurance to marry. The evidence of other witnesses provide support to the evidence of P.W. 1 that the appellant and the victim were found in one room on their arrival and then the victim girl had disclosed before them about the said shocking incident and the appellant to have told that he would marry her. The victim’s explanation as regards non-disclosure of the incident occurred in the year 2006 which had taken place in the school appears to be quite acceptable and such conduct is not unnatural at all that a girl of that age hailing from the rural background reading in Class-VI and especially in view of the relationship being a student of the appellant receiving the threat and then getting the solace being further swayed away on the sweet words of the appellant remaining with that hope and expectation. The defence evidence as regards the ill-feeling between the appellant and the informant being the reason for foistation of such case is not at all acceptable and also it is extremely hard to believe even for a moment that merely for any such ill-feeling, the future of victim at such age would be put at grave risk and for that even the victim would be pointing finger of accusation against an innocent person by coming to depose on oath during trial inviting all sorts of stigma for her entire long life. For the aforesaid discussion, I do not find any such infirmity with the judgment of the trial court in recording the conviction against the appellant and accordingly I am of the view that the appellant has been rightly found guilty for the offence under section 450/376 of IPC and has been convicted thereunder. The order of sentence passed by the trial court in the facts and circumstances and in view of the evidence viewed with all other relevant factors does not also call for interference. 5. The order of sentence passed by the trial court in the facts and circumstances and in view of the evidence viewed with all other relevant factors does not also call for interference. 5. Resultantly, the appeal stands dismissed.