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2016 DIGILAW 85 (ORI)

Tarjan Purty @ Bijaya Munda v. State of Orissa

2016-01-29

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. This case is another example which shows how life can be so cruel and ugly. When the girl was in an age of running after the butterflies and playing with dolls and she had not entered into the complexities of life, she suffered a jolt on account of the barbaric incident. She was returning home in a joyous mood after enjoying dancing in Magha festival. Unfortunately she came in the clutches of a demon who ravished her in the darkness. She screamed for her rescue but nobody turned up to extend the helping hands. Childhood which is stated to be the most beautiful of all life’s seasons became a horrific trauma for her with never ending tears rolling down her cheeks. The appellant Tarjan Purty @ Bijaya Munda faced trial in the Court of the learned Ad hoc Additional Sessions Judge, Fast Track Court, Champua in S.T. Case No.1/307 of 2010-2009 for the offence punishable under section 376(2)(f) of the Indian Penal Code for committing rape on the victim ‘SH’ (P.W.4), a girl aged about nine years on 16.03.2008 at about 9 p.m. near Nirmal Singh Garage, Barbil in the district of Keonjhar. The learned Trial Court vide impugned judgment and order dated 09.09.2010 found the appellant guilty under section 376(2)(f) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo simple imprisonment of six months. 2. The prosecution case as per the First Information Report lodged by the victim girl is that on 16.03.2008 during the evening hours, she had gone to a hamlet situated nearer to her house to dance on the eve of Magha festival. At about 9 o’clock while the victim was returning home, in an isolated place, the appellant dragged her and after removing her dress committed rape on her. When the victim shouted, the appellant left her. The victim rushed to her house and disclosed about the occurrence to her parents and her brother. At about 9 o’clock while the victim was returning home, in an isolated place, the appellant dragged her and after removing her dress committed rape on her. When the victim shouted, the appellant left her. The victim rushed to her house and disclosed about the occurrence to her parents and her brother. On the oral report of the victim, in absence of the Inspector-in-Charge of Barbil Police Station, P.W.12 Sushanta Kumar Taudia, S.I. of Police attached to the said police station, reduced it into writing and treated it as First Information Report and registered Barbil P.S. Case No.76 dated 17.03.2008 under section 376(2)(f) of the Indian Penal Code and he also took up investigation of the case. During course of investigation, P.W.12 examined the victim and recorded her statement, examined other witnesses, visited the spot and prepared the spot map. He seized the wearing apparels of the victim under seizure list Ext.7, sent the victim to the Government Hospital, Barbil for her medical examination and received the medical report. On 18.03.2008 the appellant was arrested by P.W.12 and his wearing apparels were also seized under seizure list Ext.8. Thereafter, the appellant was sent for medical examination to the Government Hospital, Barbil and the medical report was obtained. The escort party who had accompanied the victim to the hospital produced vaginal swab and blood sample of the victim collected by the doctor before the Investigating Officer which were seized under seizure list vide Ext.2. The blood sample and pubic hair of the appellant collected by the doctor were also seized under seizure list vide Ext.1. While the accused was being forwarded to the Court, he absconded from the police custody and later on he was nabbed in another case i.e. Barbil P.S. Case No.80 dated 20.03.2008. He was taken on remand in this case on 11.10.2009. P.W.12 handed over the charge of investigation to the Inspector-in-Charge of Barbil Police Station. Subsequently, P.W.11 Kanhei Charan Brahma, who was the S.I. of Police completed investigation of the case and submitted charge sheet against the appellant under section 376(2)(f) of Indian Penal Code on 13.11.2009. 3. He was taken on remand in this case on 11.10.2009. P.W.12 handed over the charge of investigation to the Inspector-in-Charge of Barbil Police Station. Subsequently, P.W.11 Kanhei Charan Brahma, who was the S.I. of Police completed investigation of the case and submitted charge sheet against the appellant under section 376(2)(f) of Indian Penal Code on 13.11.2009. 3. 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(2)(f) of Indian Penal Code on 05.02.2010 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 twelve witnesses. P.W.1 Rushibar Giri was the constable attached to Barbil Police Station who stated about the seizure of nail clippings and blood sample of the appellant collected by the doctor which were seized under seizure list Ext.1. He further stated about the collection of nail clippings, blood sample and vaginal swab of the victim which were seized under seizure list Ext.2. P.W. 2 Lokanath Jaipuria was the constable attached to Barbil Police Station who stated about the seizure of nail clippings and blood sample of the appellant under seizure list Ext.1. P.W.3 Dr. Aswani Kumar Das who was attached to Government Hospital, Barbil as Assistant Surgeon examined the appellant on 19.03.2008 on police requisition and submitted his report Ext.3. P.W.4 is the victim who is also the informant in the case. P.W.5 Madan Hesapingua is the father of the victim and he stated that the victim narrated about the incident before him after returning from dance festival and further stated that the appellant had committed rape on her. He further stated that he accompanied the victim to the police station to lodge the FIR. P.W.6 Abhi Hesapingua is the brother of the victim and he also stated that the victim narrated about the incident before him and he also accompanied the victim to the police station to lodge the First Information Report. P.W.7 Sokamati Hesapingua is the mother of the victim and she has also stated that the victim came to her crying and narrated the incident of rape before her and implicated the appellant to be the culprit. P.W.7 Sokamati Hesapingua is the mother of the victim and she has also stated that the victim came to her crying and narrated the incident of rape before her and implicated the appellant to be the culprit. P.W.8 Smt. Suchitra Parida who was the constable attached to Barbil Police Station had taken the victim to the Government Hospital, Barbil for her medical examination. He produced the vaginal swab as well as pubic hair etc. of the victim collected by the doctor before the Investigating Officer which were seized under seizure list Ext.2. P.W.9 Debananda Patra was the constable attached to Barbil Police Station and he also stated about the seizure of vaginal swab of the victim by the Investigating Officer under seizure list Ext.2. P.W.10 Dr. Ratna Panda was attached to Government Hospital, Barbil as Assistant Surgeon who examined the victim on 18.03.2008 and proved the medical report of the victim vide Ext.4. P.W.11 Kanhei Charan Brahma was the S.I. of Police attached to Barbil Police Station and he took charge of the investigation of the case from I.I.C. Suleman Ekka and on completion of investigation submitted charge sheet against the appellant. P.W.12 Sushanta Kumar Taudia was the S.I. of Police attached to Barbil Police Station and he is the Investigating Officer. No witness was examined on behalf of the defence. The prosecution exhibited nine documents. Exts.1 and 2 are the seizure lists, Exts.3 and 4 are the medical examination reports, Ext.5 is the office copy of the forwarding letter to the Director, S.F.S.L., Rasulgarh, Bhubaneswar, Ext.6 is the First Information Report, Exts.7 and 8 are the seizure lists and Ext.9 is the ossification test report of the victim. 5. The defence plea of the appellant was one of denial and it was suggested to the material witnesses that in order to grab the government land which was under occupation of the appellant, this case has been foisted. 6. The learned Trial Court held that basing on the testimony of the victim-prosecutrix which was gaining overwhelming corroboration from evidence of her parents and brother and medical examination report Ext.4 and ossification test report Ext.9, a clear and unimpeachable case of forcible rape on the victim, a woman when she was under the age of twelve years, is surfaced. 6. The learned Trial Court held that basing on the testimony of the victim-prosecutrix which was gaining overwhelming corroboration from evidence of her parents and brother and medical examination report Ext.4 and ossification test report Ext.9, a clear and unimpeachable case of forcible rape on the victim, a woman when she was under the age of twelve years, is surfaced. The learned Trial Court further held that the evidence of P.W.5 is inspiring confidence of the Court and there is no reason whatsoever to doubt his evidence which is clinchingly corroborating the evidence of the victim. The learned Trial Court further held that the evidence of the victim P.W.4 with the evidence of P.W.5, P.W.6 and P.W.7 i.e. her father, brother and mother respectively, a ring of truth is found surfaced and there is no plausible reason as to why they would speak falsehood against the appellant and the testimony of the victim itself is inspiring confidence of the Court that she is one truthful and reliable witness. The evidence of the victim apart from gaining corroboration from the evidence of her kith and kins i.e. P.W.5, P.W.6 and P.W.7 to whom she stated soon after the occurrence is also gaining corroboration from the evidence of doctor who had examined her. The learned Trial Court further held that even though the chemical examination report has not been produced but under the premises of overwhelming evidence about the complicity of the appellant in the alleged crime, the report as was not proved has no such bearing effect on the prosecution version. In the ultimate analysis, the learned Trial Court has held that the prosecution has proved that the victim was minor girl under twelve years of age and she was a believable witness and her evidence is gaining overwhelming corroboration from the evidence of other witnesses and opinion of the doctor. Accordingly, the learned trial Court held the appellant guilty of the offence under section 376(2)(f) of Indian Penal Code as he had committed rape on the victim, a girl under the age of twelve years. 7. Mr. Suraj Kumar Naik, learned counsel was engaged as amicus curiae on behalf of the appellant. Accordingly, the learned trial Court held the appellant guilty of the offence under section 376(2)(f) of Indian Penal Code as he had committed rape on the victim, a girl under the age of twelve years. 7. Mr. Suraj Kumar Naik, learned counsel was engaged as amicus curiae on behalf of the appellant. After going through the paper book supplied in Court, he argued that the conviction of the appellant under section 376(2)(f) of the Indian Penal Code is not sustainable in the eye of law and the evidence of the victim that she was dragged and thereafter rape was committed is not supported by the medical evidence. It is further contended that the oral evidence of the victim regarding her age as given in the cross-examination indicates that she was not under the age of twelve years at the time of occurrence but she was of more age. It is further submitted that in absence of chemical examination report and non-production of wearing apparels of the victim, the prosecution case should be viewed with suspicion and possibility of tutoring of a child witness like the victim cannot be ruled out. Mr. Janmejaya Katikia, learned Additional Government Advocate, on the other hand, submitted that the learned Trial Court has assessed the evidence on record in its proper perspective and when the evidence of the victim who was a child under the age of twelve years is inspiring confidence and corroborated by other witnesses like her parents and brother and also by the medical evidence, that itself is sufficient to convict the appellant under section 376(2)(f) of Indian Penal Code which has been rightly done so by the learned Trial Court. The learned counsel for the State further contended that the medical examination of the appellant also indicates that he was capable of committing sexual intercourse and in view of the disclosure made by the victim before her family members immediately after the occurrence which is admissible as res gestae under section 6 of the Evidence Act, there is no flaw in the order of conviction. 8. Considering the rival contentions raised at the Bar, let us first analyze the ingredients of the offence under section 376(2)(f) of Indian Penal Code. 8. Considering the rival contentions raised at the Bar, let us first analyze the ingredients of the offence under section 376(2)(f) of Indian Penal Code. On a bare reading of the said provision, it indicates that in order to attract the ingredients of the offence, the prosecution has to prove that the rape has been committed on a woman who was under the age of twelve years. The victim has stated her age to be nine years in the First Information Report lodged on 17.03.2008. In Court while deposing on 26.07.2010, she has stated her age to be thirteen years but she has stated that the occurrence took place about two years back and at that time, she was nine years of age. The learned counsel for the appellant pointed out the cross-examination of the victim where she has stated that since 12 to 13 years, she was selling firewood and she started carrying firewood when she was six to seven years old. According to the learned counsel for the appellant from such statements, it appears that the victim was not under the age of twelve years and therefore the learned Trial Court was not justified in not giving due weight to such statements made in the cross-examination. On perusal of the impugned judgment, it appears that the learned trial Court has observed that the victim was hailing from very lower strata of the society and an illiterate minor girl. An answer to the complex questions and an arithmetical calculation thereon will not supersede her version that she was nine years at the time of occurrence which is gaining corroboration from the evidence of her parents, brother as well as ossification test report. No suggestion has been given to the victim by the defence challenging her age even though she has stated her age to be nine years at the time of occurrence in the examination-in-chief. The ossification test report which has been marked as Ext.9 clearly indicates that on the date of examination i.e. 26.03.2008, the victim was within 11 to 13 years of age. Nothing has been brought out by the defence from the evidence of the father (P.W.5), mother (P.W.7) and brother (P.W.6) of the victim to indicate that the victim was not under the age of twelve years. Nothing has been brought out by the defence from the evidence of the father (P.W.5), mother (P.W.7) and brother (P.W.6) of the victim to indicate that the victim was not under the age of twelve years. In view of such clinching oral evidence of the victim coupled with the ossification test report, I am of the view that the prosecution has successfully established that the victim was under twelve years age at the time of occurrence. Coming to the evidence of the victim, she has narrated as to how while she was returning after performing dance in Magha festival, near Nirmal Singh Garage which is a lonely place, the appellant dragged her to the back side of railway line, made her naked by removing her pant and frock and thereafter made her lie on the ground and inserted his penis into her vagina saying “geihinbi geihinbi” and raped her. She has further stated that after committing the rape, the appellant fled away from the spot. The victim has further stated in the cross-examination that when the appellant tried to rape her, she raised noise in protest of his effort but the appellant did not leave her despite her shouting. She further stated that her wearing apparels like frock was torn due to dragging. The wearing apparels of the victim were seized under seizure list Ext.7. It appears that the wearing apparels were sent for chemical examination which is under forwarding letter of the learned J.M.F.C., Barbil vide Ext.5 but neither any steps have been taken to obtain the chemical examination report nor were the seized wearing apparels produced before the Court during trial. This is nothing but the callousness of the prosecution in conducting trial of a serious offence which is inexcusable. However, non-production of the wearing apparels of the victim or chemical examination report during trial in the instant case cannot be a ground to disbelieve the prosecution case. The evidence of the victim that she was raped is corroborated by the medical evidence. P.W.10 Dr. Ratna Panda who examined the victim on police requisition on 18.03.2008 has stated that the victim was aged about nine years and she examined her on 18.3.2008 and found that there are genital injuries which suggest recent sexual intercourse within two to four days. She further stated that except the genital injuries, no other bodily injury was noticed. P.W.10 Dr. Ratna Panda who examined the victim on police requisition on 18.03.2008 has stated that the victim was aged about nine years and she examined her on 18.3.2008 and found that there are genital injuries which suggest recent sexual intercourse within two to four days. She further stated that except the genital injuries, no other bodily injury was noticed. The doctor has categorically stated that the genital injury as mentioned in Ext.4 cannot be possible on self-infliction and she has further stated that the injury on other parts of the body on forcible rape may occur or may not occur. She further stated that hymen of the victim was ruptured. In view of such medical evidence, the statement of the victim also cannot be doubted. After the incident, the victim rushed to her house and immediately disclosed about the incident before her parents and brother. The statement made by the victim was contemporaneous to the acts or immediately thereafter which constituted the offence and it is admissible as res gestae under Section 6 of the Evidence Act. This is also relevant under sections 8 and 157 of the Evidence Act. Section 6 of the Evidence Act is attracted when the chain of acts constitute the same transaction, proximately of time, continuity of action without allowing any time for fabrication. In the First Information Report, which was lodged on the very next day of the occurrence, it is clearly mentioned that it is the appellant who had committed the rape. The appellant was medically examined by Dr. Aswini Kumar Das (P.W.3) on 19.03.2008 and the doctor has opined that the appellant was capable of committing sexual intercourse. He further stated that even though no bodily injury was found but sexual intercourse could not be ruled out. The doctor has categorically answered to the questions put by the learned counsel for the defence that if forcible intercourse is made on a minor girl aged about 11-13 years, the sustaining of wound on the penis of the male person may or may not occur. Similarly the doctor has stated that in case victim girl of nine years of age is raped, the injury on the male organ may or may not be there. Similarly the doctor has stated that in case victim girl of nine years of age is raped, the injury on the male organ may or may not be there. Analyzing the evidence on record, I find that not only the evidence of the victim is clear, cogent, trustworthy and reliable but it gets ample corroboration from the evidence of her family members before whom she had made immediate disclosure and also from the medical evidence. Her age has also been proved to be under twelve years of age. In view of the unimpeachable evidence led by the prosecution, it is apparent that the appellant has committed the crime and therefore there is no infirmity or illegality in the impugned judgment and order of conviction of the appellant under section 376(2)(f) of Indian Penal Code. The sentence which has been imposed on the appellant i.e. rigorous imprisonment for ten years is the minimum sentence as has been prescribed for such offence. Even though there is a proviso to section 376(2)(f) of Indian Penal Code which lays down that the Court, may for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term less than ten years but recourse to the proviso cannot be taken in a casual manner. Thus, the normal sentence in a case where rape is committed on a child below twelve years of age, is not less than ten years though in exceptional cases for special and adequate reasons, less than ten years sentence can also be awarded. After careful analysis of the facts and circumstances of the case, I do not find existence of any special and adequate reasons for reduction of the minimum sentence as prescribed under the statute. 9. In view of what has been narrated above, in my humble view, the impugned judgment and order of conviction and the sentence which has been imposed by the learned Trial Court does not suffer from any infirmity to warrant interference and therefore the Jail Criminal Appeal being devoid of merits, stands dismissed. Accordingly, the Jail Criminal Appeal is dismissed.