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2017 DIGILAW 1012 (ORI)

Jayaram Kumar v. State of Orissa

2017-09-09

B.K.NAYAK

body2017
JUDGMENT B.K. NAYAK, J. - The appellant has filed this appeal challenging the judgment dated 18.02.2011 passed by the learned C.J.M.-cum-Assistant Sessions Judge, Kalahandi, Bhawanipatna in Sessions Case No.8/04 of 2010 convicting the appellant under Sections 466-A/ 376 (2) )f) of I.P.C. and sentencing him to undergo simple imprisonment for 7 years and fine of Rs.2000/- in default to undergo S.I. for six months under Section 366-A and to undergo R.I. for 10 years and to pay a fine of Rs.5,000/- in default to undergo R.I. for one year under Section 376 (1), I.P.C. The Trial Court directed the sentences to run concurrently. 2. The prosecution case is that on 18.09.2009 the victim girl, aged about eleven years had gone to school. But she having not returned to her house, her paternal grandmother, Panibudi Naik searched for her in nearby places along with other persons, but could not be able to trace her out. On 20.9.2009 at about 8.00 A.M. the victim girl returned to the house in wretched condition and the informant ascertained from her that while she was returning from the school, on the way the appellant torn her dress and when she cried the appellant assuring her to purchase new dress, took her in his bicycle to a jungle and thereafter raped her which became unbearable on the part of the victim When she raised protest, the accused did not listen and again raped her as a result of which she lost her sense. Thereafter, the appellant sprinkled water on her face and she was again raped. On 20.09.2009 at 7.00 AM the accused left her in a bus and the victim came to her house. The victim’s parents were working in Gujarat. The grandmother of the victim lodged report before the OIC, M. Rampur P.S. who registered a case and took up investigation. 3. During the course of investigation, the Investigating Officer visited the spot, examined the victim and other witnesses, seized wearing apparels of the victim as well as the accused, sent the victim and the accused for medical examination, seized the biological fluid of the victim and the accused and seized the Anganwadi Register. Lastly, on completion of investigation he submitted charge-sheet against the accused U/s.366-A/376 (2) (f), IPC. 4. The defence plea is one of complete denial of the occurrence and involvement of the accused in the alleged crime. 5. Lastly, on completion of investigation he submitted charge-sheet against the accused U/s.366-A/376 (2) (f), IPC. 4. The defence plea is one of complete denial of the occurrence and involvement of the accused in the alleged crime. 5. In order to prove its case the prosecution has examined twenty-two witnesses, out of whom P.W. 6 is the victim, and P.W. 7 is her Grandmother, who is the informant. P/W.1,2, 3, 4, 5, 9, 12, 13, 15, 16 and 19 are seizure witnesses. P/W. 19 is the scribe of the FIR. P.Ws. 20 and 21 are the Doctors. P.Ws. 8, 10 and 17 are the post occurrence witnesses and witnesses to certain circumstances. P.W. 14 is a witness , who turned hostile. The defence did not lead any evidence. 6. On consideration of the evidence, the learned Trial Court came to the conclusion that the victim as above twelve years of age on the date of occurrence and therefore, the case of rape did not fall under Clause (f) of Sub-Section (2) of Section 376, IPC but fell under Section 376 (1), IPC. Accordingly he passed the judgment of conviction and sentence as aforesaid. 7. In course of his argument, learned Legal Aid Counsel for the appellant stated that the evidence of P.W. 11 to the effect that the accused confessed to have taken the victim with him is not believable, inasmuch as, according to him, out of three other witnesses who were present during confession, one was Goura Chandra Seth, P.W. 8 but the said witness did not speak about the confession of the accused. It is also submitted that though almost all witnesses who saw the victims’ arrival after the occurrence stated that she was bleeding in her private part, the Doctor (P.W.21) who examined the victim did not find any bleeding injury as per her evidence in cross-examination. Further, in view of the said Doctor’s statement in cross-examination that in case of rape by a well built person on the victim there may be rupture of the hymen and P.W. 21 having not found rupture of the hymen of the victim, the case of rape cannot be believed. He further submits that the evidence of P.W. 20, the Doctor who examined the accused-appellant on 22.09.2009, though found some minor injuries on his person, he found no sign of recent sexual intercourse. He further submits that the evidence of P.W. 20, the Doctor who examined the accused-appellant on 22.09.2009, though found some minor injuries on his person, he found no sign of recent sexual intercourse. Therefore, it cannot be said that the victim was raped. It is his submission that keeping in view the medical evidence read with the evidence of the victim, it at best be a case of attempted rape. Lastly, he submits that in the event the conviction is maintained for a case of simple rape, award of rigorous imprisonment of ten years is quite excessive and that the appellant having already served sentence for more than seven years and eleven months he should be let off. 8. Learned Additional Government Advocate (Prosecutor) on the other hand submits that there is no infirmity in the evidence of P.W.6, the victim and the informant, P.W. 7 and the other post occurrence witnesses to the effect that the victim girl having not returned from the School, on 18.09.2009 she was searched for two days and in the morning of 20.09.2009 she came back and immediately described the incident to P.W. 7 and others and she was bleeding on her private part and her condition was worstl. It is further submitted that the evidence of the prosecutrix has not been shattered in any manner and her evidence clearly makes out a case of rape which has also been corroborated by the medical evidence. So no further corroboration from any quarter is necessary. The evidence of P.W. 21 in cross-examination with regard to rupture of hymen in case of rape by a well built person is not a definite opinion and the Doctor says that there ‘may be’ rupture of hymen and not ‘must be’. He submits that slightest penetration is enough to constitute rape and rupture of hymen is not a requirement of law. 9. P.W. 6, the victim was aged about thirteen years on the date of her deposition in Court. She was tested by the learned Trial Court with regard to her capacity to understand the questions put by the Court, it is found that she has given rational answers to the test questions. 9. P.W. 6, the victim was aged about thirteen years on the date of her deposition in Court. She was tested by the learned Trial Court with regard to her capacity to understand the questions put by the Court, it is found that she has given rational answers to the test questions. Her evidence is quite vivid as to the occurrence, to the effect that while returning from School on the date of occurrence at about 2.30 P.M., on the way the appellant met and asked her to come with him but when she did not respond, he pulled her frock which was torn. When she cried, the accused assuring her to give a new frock took her in his bicycle to a jungle and thereafter to a school building and after making her naked committed rape on her. Because of the rape she started bleeding from her private part and she was about to become unconscious. The accused sprinkled water on her face. She was unable to walk and on the next morning again the accused took her to jungle and to a nearby school and kept her there the entire night and again raped her. When she cried the accused threatened to kill her. On the next day morning the accused gave her cash of Rs.5/- and allowed her to come back by bus and accordingly she returned. She has also stated that on reaching home she narrated the incident to her maternal grandmother (P.W.7). On police requisition she was examined by a Doctor. She also stated that she sustained nail injury on her lower abdomen. The Police seized her school dress. Nothing material has been brought out in her cross-examination so as to disbelieve her evidence. P.W. 7 fully corroborated the version of P:.W. 6 as narrated to her soon after her return. Evidence is also forthcoming by the victim girl was away for two days after going to school. 10. As per the evidence of P.W. 21 (Doctor) and her report Ext.4/1 she found lacerated injury just below the hymen of the victim on the left side which was deep red in colour. The Doctor also found five number of abrasions on the lower abdomen of the victim, probably caused by human nail. But the hymen had not been ruptured. As per the evidence of P.W. 21 (Doctor) and her report Ext.4/1 she found lacerated injury just below the hymen of the victim on the left side which was deep red in colour. The Doctor also found five number of abrasions on the lower abdomen of the victim, probably caused by human nail. But the hymen had not been ruptured. She has also stated that for ossification test the victim was referred to the Radiologist, DHH, Bhawanipatna in her letter under Ext.3/1. On her cross-examination, P.W. 21 stated that no bleeding injury was noticed during the time of her examination. The occurrence took place on 18th and 19th.The victim returned on 20th and she was examined on 22,.09.2009, i.e. more than three to four days after the occurrence. Therefore, it was quite natural that the bleeding from the injury in the private part had been stopped. Therefore, absence of bleeding of the time of examination cannot be a ground to disbelieve the medical evidence, particularly when the Doctor found loceration below the hymen. Her further statements in the cross-examination to the effect that hymen “may be ruptured” if the victim would be raped by a well built person is of no consequence since “may be” does not cannot “must be”. Therefore, absence of rupture of the hymen cannot be a ground to disbelieve the otherwise clear and cogent testimony of P.W. 6, the victim. From the evidence of P.W. 20 (Doctor), it is apparent that the accused sustained abrasion below the right clavicle, left side back of chest and left side of neck and P.W. 20 opined that the injuries might be caused by friction with rough surface or object. He however, found no sign of recent sexual intercourse. Taking advantage of this statement, learned Counsel for the appellant submitted that since there is no sign of recent sexual intercourse it would not be a case of rape. The contention is unacceptable for the reason that full penetration or ejaculation is not a necessary ingredient of offence of rape. On the contrary, a slightest penetration which may not rupture the hymen is sufficient to constitute rape. 11. The evidence of P.W. 11 reveals that the accused confessed before him and three others to have taken the victim, but nothing has been brought out from his cross-examination so as to disbelieve his evidence. On the contrary, a slightest penetration which may not rupture the hymen is sufficient to constitute rape. 11. The evidence of P.W. 11 reveals that the accused confessed before him and three others to have taken the victim, but nothing has been brought out from his cross-examination so as to disbelieve his evidence. Merely because P.W. 8, who according to P.W. 11 was present at the time of confession of the accused has not stated about the said confession, the version of P.W. 11 cannot be doubted, particularly when P,.W. 8 has not been cross-examined with regard to the confession of the accused. The evidence of other witnesses and the I.O. also lend full assurance to the eviedence of P.Ws. 6 and 7. 12. From the entry with regard to the date of birth of the victim registered in the Anganwadi Register and from the ossification test report the learned Court below rightly came to the conclusion that the victim was above 12 years of age at the time of occurrence and therefore, Clause (f) of Section 376 (2) IPC would not apply. However, the offence of rape under Section 376 (1), IPC has been rightly found to be proved and there is nothing to interfere with the conviction for the same. 13. The appellant was arrested on 22.09.2009 and has been in jail custody since then and by now he has already been in jail for seven years and eleven months in the circumstances, while confirming his conviction under Section 366-A/376 (1), IPC, I reduce the sentence of the appellant under Section 376 (1), IPC to the period already undergone . He be set at liberty forthwith, if his custody is not required in connection with any other case. The appeal accordingly stands disposed of. Appeal disposed of.