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2017 DIGILAW 1068 (ORI)

Jaga Penthei v. State of Orissa

2017-09-16

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Jaga Penthei faced trial in the Court of learned Adhoc Additional Sessions Judge (Fast Track Court), Champua in S.T. Case No.20/57 of 2008 for offence punishable under section 376(2)(f) of Indian Penal Code for committing rape on the minor daughter of the informant (hereafter ‘the victim’) under twelve years of age on 13.09.2007 at about 3.00 p.m. near Kendudihi Nala under Barbil police station in the district of Keonjhar. The learned Trial Court vide impugned judgment and order dated 26.12.2008 found the appellant guilty under section 376(2)(f) Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for a further period of five months. 2. The factual matrix of the prosecution case, as per the first information report lodged by one Shyam Penthei (P.W.6) before Inspector in charge, Barbil Police Station, Keonjhar is that on 13.09.2007 at about 3.30 p.m. while the victim had been to take bath to the Kendudihi Nala and changing her dresses after taking bath, at that time, the appellant arrived there and forcibly lifted the victim from that place to the nearest bushes and committed rape on her. The victim came back to her house crying and disclosed about the occurrence before the informant and then when the sister-in-law of the victim confronted her, she also disclosed the same thing. The informant communicated about the incident to ward member Suresh Chandra Naik (P.W.3) and on 16.09.2007 there was a meeting in which the appellant confessed his guilt. The appellant was handed over to the village panchayat but subsequently the appellant managed to escape. On the oral report of the informant, the Inspector in charge, Barbil police station reduced the same into writing and treated it as F.I.R. (Ext.4) and accordingly Barbil P.S. Case No. 180 dated 20.09.2007 was registered under section 376(2)(f) of the Indian Penal Code and Mr. Sushanta Kumar Taudia (P.W.10), Sub-Inspector of Police, Barbil Police Station was entrusted by the I.I.C. to take up investigation. During course of investigation, P.W.10 examined the informant, the victim girl, seized the wearing apparels of the victim under seizure list (Ext.3) and sent the victim girl for medical examination under police requisition to the Government Hospital, Barbil. Sushanta Kumar Taudia (P.W.10), Sub-Inspector of Police, Barbil Police Station was entrusted by the I.I.C. to take up investigation. During course of investigation, P.W.10 examined the informant, the victim girl, seized the wearing apparels of the victim under seizure list (Ext.3) and sent the victim girl for medical examination under police requisition to the Government Hospital, Barbil. He visited the spot and prepared the spot map (Ext.7) and also examined other witnesses. The appellant was arrested and his wearing apparels were seized under seizure list (Ext.5) and he was also sent for medical examination to the Government Hospital, Barbil. After completion of investigation, P.W.10 submitted charge-sheet on 06.02.2008 against the appellant under section 376(2)(f) Indian Penal Code. 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 25.04.2008 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 as many as twelve witnesses. P.W.1 Dr. Soudamani Dhal was the O.G. Specialist at P.P. Centre, Barbil who examined the victim on 20.09.2007 and proved her report (Ext.1). P.W.2 Maheswar Mohanta was the constable attached to Barbil police station who stated about the seizure of vaginal swab, blood sample of the victim along with command certificate of the constable under seizure list (Ext.2). P.W.3 Suresh Chandra Naik is the ward member of village Kendudihi and he stated that after hearing about the occurrence from the informant, he called a meeting in the village in which the victim disclosed about the occurrence and he further stated that the appellant was also present in that meeting. P.W.4 Pratap Ch. Naik is a co-villager of the informant who stated about the disclosure made by the victim in the meeting and the presence of the appellant in the said meeting. He is also a witness to the seizure of the wearing apparels of the victim under seizure list (Ext.3). P.W.5 is the victim who stated about the occurrence in detail so also the seizure of her wearing apparels by the police under seizure list (Ext.3). He is also a witness to the seizure of the wearing apparels of the victim under seizure list (Ext.3). P.W.5 is the victim who stated about the occurrence in detail so also the seizure of her wearing apparels by the police under seizure list (Ext.3). P.W.6 Sri Shyama Panthei is the informant in the case and he stated about the disclosure made by the victim regarding the occurrence, holding of the meeting in the village in connection with the case in which the appellant confessed his guilt. P.W.7 Smt. Sabita Panthei is the sister-in-law of the victim who stated about the disclosure made by the victim about the incident and also about the meeting which was held in connection with the case. P.W.8 Rushibara Giri was the constable attached to Barbil police station who stated about the seizure of the wearing apparels of the appellant under seizure list (Ext.5) and also about the seizure of blood sample and semen of the appellant under seizure list (Ext.6) P.W.9 Smt. Suchitra Parida was the lady constable attached to Barbil police station who also stated about the seizure of blood sample and semen of the appellant under seizure list (Ext.6). P.W.10 Sushanta Kumar Taudia was the Sub-Inspector of Police attached to Barbil police station and he is the investigating officer of the case. P.W.11 Sri Debendra Patra was the constable attached to Barbil Police Station and he stated about the seizure of vaginal swab, blood sample of the victim along with command certificate under seizure list (Ext.2) and also seizure of collection of sample of semen, pubic hair and blood from the appellant by the doctor under seizure list (Ext.6). P.W.12 Dr. Jogendra Nath Adhya was the Assistant Surgeon at Government Hospital, Barbil who examined the appellant on police requisition and proved his report (Ext.8). The prosecution exhibited eleven numbers of documents. Exts.1 is the injury report, Ext.2, 3, 5 and 6 are the seizure lists, Ext.4 is the first information report, Ext.7 is the spot map, Ext.8 is the requisition format, Ext.9 is the chemical examination report of S.F.S.L., Rasulgarh, Bhuabaneswar, Ext.10 is the serological examination report of S.F.S.L., Rasulgarh, Bhubaneswar and Ext.11 is the requisition issued by Dr. S. Dhal. The prosecution also proved four material objects. S. Dhal. The prosecution also proved four material objects. M.O.I is the green half pant, M.O.II is the black scott, M.O.III is the grey check round lungi and M.O.IV is the grey colour full shirt. 5. The defence plea of the appellant is one of denial. 6. The learned trial Court has been pleased to hold that the oral account of the victim girl is consistent and accordingly held that the prosecution has proved its case beyond all reasonable doubt that the appellant had committed rape on the minor victim girl of eleven years and accordingly convicted the appellant under section 376(2)(f) of IPC and sentenced him as noted above. 7. Mr. Anirudha Das, who was engaged by this Court to argue the case for the appellant, while challenging the impugned judgment and order of conviction contended that the very initiation of the criminal proceeding right from the stage of the first information report is shrouded in mystery in as much as even though the informant (P.W.6) as well as the Investigating Officer (P.W.10) have stated that on the oral report, the F.I.R. was reduced into writing and thereafter L.T.I. of the informant was taken in the F.I.R. but in the cross-examination, the informant has stated in a different manner which rather goes to show that the original first information report has been suppressed. The learned counsel further submitted that the evidence of the victim suffers from material discrepancies and there are contradictions in her evidence vis-a-vis her previous statement made before police and her evidence is not corroborated by the medical evidence and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Chitta Ranjan Swain, learned Additional Standing Counsel on the other hand submitted that not only it has been proved that the victim was a minor at the time of occurrence but she has vividly described the occurrence and exaggeration here and there, if any, in the evidence of the victim does not go to the root of the matter and falsify the entire accusation she has leveled against the appellant. It is further contended that since the victim was examined a week after the occurrence, absence of any injury would not be a factor to discard her version. It is further contended that since the victim was examined a week after the occurrence, absence of any injury would not be a factor to discard her version. It is further contended by the learned counsel for the State that the disclosure of the victim about the occurrence immediately before her family members is another factor which would be admissible as res geste under section 6 of the Evidence Act and since the learned Trial Court has discussed the evidence on record minutely and came to a finding that on the date of occurrence the victim was twelve years of age and she was subjected to forcible sexual intercourse by the appellant and there is no infirmity or illegality in the finding, therefore, the impugned judgment and order of conviction cannot be interfered with. 8. Adverting to the contentions raised by the learned counsels for the respective parties, it appears from the first information report lodged by Shyam Penthei (P.W.6) that the oral report of the informant was reduced into writing and the same was treated as F.I.R. (Ext.4) and as the F.I.R. revealed a cognizable case under 376(2)(f) of the Indian Penal Code, the P.S. case was registered by I.I.C., Barbil Police Station and P.W.10 was entrusted to take up investigation of the case. The informant (P.W.6) has stated that he orally reported the occurrence at Barbil Police Station by moving to the police station with his daughter and the police reduced his oral report into writing and prepared the F.I.R. and it was read over and explained to him and he understood the contents of the F.I.R and thereafter, he put his L.T.I. on the same. The Investigating Officer (P.W.10) has also stated that on 20.09.2007 on the oral report of P.W.6, the I.I.C. M.K. Patel reduced it into writing and the same was read over and explained to the informant, who understood the contents thereof and admitting the same to be correct, gave his L.T.I. thereon and Ext.4 is the said oral report. Therefore, the contents of the F.I.R. are corroborated by the evidence of P.W.6 who is the informant as well as the Investigating Officer (P.W.10). Therefore, the contents of the F.I.R. are corroborated by the evidence of P.W.6 who is the informant as well as the Investigating Officer (P.W.10). No doubt in the cross-examination, the informant has stated in a different manner that the F.I.R. was scribed at the village and it was written by the ward member Suresh Naik (P.W.3) in presence of the gentlemen of the village those who were sitting in the meeting and the contents of the F.I.R. were read over and explained to him and in the said F.I.R., the villagers about thirty to forty persons gave their signatures and L.T.Is. No such document is available on record. P.W.3 has not stated to have scribed any such F.I.R. No such suggestion has been given to the I.O. (P.W.10) regarding suppression of the original first information report and therefore, I am of the humble view that the statement of the informant on this account in the cross-examination appears to be given under confusion. Since the documentary evidence i.e. the F.I.R. is consistent with the chief examination version of the informant and that of the Investigating Officer that the oral account of the informant was reduced into writing which was treated by the I.I.C of Barbil Police Station as an F.I.R and the L.T.I. of the informant was taken thereon, the statement of the informant in the cross examination which appears to have been made under confusion cannot otherwise falsify the prosecution case and non-production of such alleged document containing signatures of thirty to forty persons cannot be ground to discard the entire prosecution case. 9. The victim has been examined in this case as P.W.5 and since she stated her age to be eleven years, the learned Trial Court has tested her competency to depose as a witness and put some formal questions and after recording the questions and answers, the learned trial Court seems to be satisfied that the victim is able to understand the implications of questions put to her and she has given rational answers and as such she was held to be competent to depose/testify as a witness in the case. The victim in her evidence has stated as to how the appellant lifted her away from the Nala after her bath to the nearest bushes situated by the side of the said Nala and thereafter, the appellant laid her there on the ground forcibly and he opened her pant and then the appellant himself became naked and then inserted his penis into her vagina forcibly and he made sexual intercourse with her against her will by doing up and down of his penis inside her vagina. She has further stated that after satisfaction of his lust, the appellant left her and went away from the spot and thereafter she came to the house and disclosed about the incident before P.W.7 and P.W.7 told about the occurrence to the informant (P.W.6). The victim was subjected to lengthy cross-examination and in the cross-examination, it has been elicited that the appellant had discharged his semen inside her vagina during last part of the intercourse with her. The victim has stated that there is no injury in her vagina during penetration by the appellant with her forcibly. Though it has been confronted to the victim and proved through the Investigating Officer that she had not stated during course of investigation in her statement recorded under section 161 Cr.P.C. that the appellant had inserted his penis inside her vagina and by inserting the same he made up and down of his penis inside her vagina and thereafter, the appellant went away from the spot and that she disclosed about the occurrence before her P.W.7 who in turn disclosed it before P.W.6 but it cannot be lost sight of the fact that the victim was an uneducated and rustic girl and the other parts of the victim’s evidence appears to be a detailed narration of the commission of rape which clearly reveals that the appellant committed the offence of rape. The disclosure made by the victim before P.W.7 is corroborated by P.W.7 who has stated that the victim returned home on the date of occurrence and disclosed about the occurrence before her that while she was at Kendudihi Nala, the appellant forcibly lifted her from that Nala to the nearest bushes and thereafter, the appellant laid her on the ground and then forcibly inserted his penis into her vagina after opening her pant and made sexual intercourse with her and after sometime, the appellant made her free and then she came to her house running. Nothing has been elicited in the cross-examination to disbelieve the disclosure statement of the victim as stated by P.W.7. Therefore, the conduct of the victim in coming to her house and immediately disclosing about the incident before her family members is admissible as res geste under section 6 of the Evidence Act. The subsequent chain of events i.e. intimation by the informant to the ward member, arranging of the village meeting in that connection, calling the appellant to the meeting and confession of the appellant about the commission of the crime in the meeting before the co-villagers are all relevant factors which strengthen the prosecution case. In case of State of Punjab Vs. Gurmit Singh reported in A.I.R. 1997 S.C. 500, it is held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has further held that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In case of Panchhi Vs. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In case of Panchhi Vs. State of U.P. reported in 1998 Criminal Law Journal 4044, it was observed that the evidence of a child witness cannot be rejected out-rightly but the evidence must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. The Court has to assess as to whether the statement of the victim before the court is the voluntary expression of the victim and that she was not under the influence of others. In case of Mohd. Kalam Vs. State of Bihar reported in 2008 Criminal Law Journal 3194, it is observed that the evidence of a child cannot be rejected out-rightly and the same must be evaluated with great circumspection. The occurrence in question took place on 13.09.2007 and the doctor (P.W.1) examined the victim on 20.09.2007 on police requisition. The delay in lodging the first information report appears to be the attempt made at the village level by organising a meeting and to confront the incident to the appellant. The doctor has stated that from the physical appearance, the victim appears to be ten to twelve years of age but for exact age determination, the ossification test was advised and it does not appear that any ossification test was conducted. However, since the age of the victim has been stated by the victim herself as well as by her father and sister-in-law to be eleven years and the same has not been challenged by the defence, I am of the view that the learned Trial Court has rightly came to the conclusion that the age of the victim was under twelve years at the time of occurrence. Non-finding of any physical injury on the victim after seven days of the occurrence cannot be a factor to disbelieve the evidence of victim. 10. Non-finding of any physical injury on the victim after seven days of the occurrence cannot be a factor to disbelieve the evidence of victim. 10. Therefore, considering the evidence of the victim (P.W.5), her father (P.W.6), her sister-in-law (P.W.7) and other witnesses who stated about the village meeting and confession of the appellant in that meeting, I am of the considered view that the learned Trial Court was justified in convicting the appellant under section 376(2)(f) of the Indian Penal Code which is applicable, if rape is committed on a woman when she is aged under twelve years of age. The punishment prescribed for such offence is rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. In the proviso, it has been mentioned that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. In this case, the sentence which has been imposed on the appellant is the minimum sentence and no such exceptional circumstances have been made out to reduce the sentence imposed by the learned Trial Court. Therefore, I am of the view that the impugned judgment and order of conviction of the appellant passed by the learned trial Court under 376(2)(f) of the Indian Penal Code and imposition of sentence of rigorous imprisonment for ten years and to pay a fine of Rs.3000/-, in default, to undergo rigorous imprisonment for five months is hereby confirmed. 11. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Keonjhar to examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation under the Orissa Victim Compensation Scheme, 2012. Let a copy of the order be sent to the District Legal Services Authority, Keonjhar for compliance. Lower Court's record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action. 12. Let a copy of the order be sent to the District Legal Services Authority, Keonjhar for compliance. Lower Court's record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action. 12. Before parting with the case, I would like to put on record my appreciation to Mr. Anirudha Das, the learned counsel engaged for the appellant for his effort in arguing the matter and he shall be entitled to his professional fees which is fixed at Rs.2,500/-. Accordingly, the Jail Criminal Appeal stands dismissed.