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2017 DIGILAW 1070 (ORI)

Sankirtan Khadia v. State of Orissa

2017-09-16

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Raghu Sika in Jail Criminal Appeal No. 34 of 2012 and the appellant Sankirtan Khadia in Jail Criminal Appeal No.35 of 2012 faced trial in the Court of learned Chief Judicial Magistrate –cum-Asst. Sessions Judge, Bargarh in C.T. Case No.79/17 of 2010 for offence punishable under section 376(2)(g) of the Indian Penal Code for committing gang rape on the victim on 06.12.2009 at about 5 p.m. at village Panichhatra under Town police station, Bargarh. The learned trial Court vide impugned judgment and order dated 27.03.2012 found both of them guilty of the offence charged and they were sentenced to undergo R.I. for 10(ten) years and to pay fine of Rs. 2,000/-(rupees two thousand) each, in default, to undergo R.I. for 6 (six)months. Since both the jail criminal appeals arise out of a common judgment, with the consent of the parties, those were heard analogously and disposed of by this common judgment. 2. The prosecution case, in brief, is that the informant Santanu Bag (P.W.1) earns his livelihood out of vegetable business as well as labour work. He was also staying with his family members consisting of his wife and his daughter at Panichhatar. The appellant Raghu Sikka is the neighbour of the informant and he was a worker in the hotel of one Saurav Meher (P.W.3). On 06.12.2009 the wife of the informant returned home after selling vegetables and found her daughter (victim) was absent. She searched for her but could not trace her out. About one hour thereafter, the informant returned to his home and came to know from his wife that their daughter whose age was 15 years was not found at their home. While they were searching for their daughter, she returned home at about 8 p.m. On being asked, she cried and disclosed that the appellant Raghu Sikka took her from the house telling her to give sweets and when darkness set in, the appellant Raghu Sikka and one of his associate forcibly committed rape on her and thereafter they left her. 3. The informant lodged the F.I.R. before the Inspector in charge, Town police station, Bargarh in pursuance of which Bargarh Town P.S. Case No. 366 dated 06.12.2009 was registered under section 376(2)(g) of the Indian Penal Code against the appellant Raghu Sikka and his associate and investigation was taken up. 3. The informant lodged the F.I.R. before the Inspector in charge, Town police station, Bargarh in pursuance of which Bargarh Town P.S. Case No. 366 dated 06.12.2009 was registered under section 376(2)(g) of the Indian Penal Code against the appellant Raghu Sikka and his associate and investigation was taken up. After completion of investigation, charge sheet was submitted against both the appellants. 4. During course of trial, in order to prove its case, the prosecution examined as many as twenty three witnesses. P.W.1 Santanu Bag is the informant in the case and he is the father of the victim and he stated that the victim disclosed before him that the appellant Raghu Sika committed rape on her. P.W.2 Asha Bag is the mother of the victim and she also stated about the disclosure made by the victim regarding commission of rape on her by appellant Raghu Sika. P.W.3 Saurav Meher is the hotel owner who stated about the presence of the appellant Raghu Sika and the victim inside the hotel. P.W.4 Govinda Saha stated about the disclosure made by the victim regarding commission of rape on her by the appellants. P.W.5 Jagannath Behera is a witness to the seizure of the wearing apparels of the victim as well as sample packet containing vaginal swab and public hair of the victim under seizure list Ext.2. P.W.6 Krushna Bag is the brother of the victim who also stated about the disclosure made by the victim regarding commission of rape on her by the appellants. P.W.7 Dr. Sri Krishna Ballava Mohanty who was the Asst. Surgeon at District Head quarters Hospital, Bargarh who examined the appellant Raghu Sika on police requisition and proved his report Ext.3. He opined further that the said appellant was capable of doing sexual intercourse. P.W.8 Sushma Kiro was the constable who took the victim for medical examination and further stated about the seizure of wearing apparels of the victim under seizure list Ext.2. P.W.9 Jagadish Mishra was the constable who stated to have taken appellant Raghu Sika to the hospital for examination and seizure of the wearing apparels of the appellants under seizure list Ext.5. P.W.10 Ramakanta Rout was the constable who stated about the seizure of sealed packet containing vaginal swab, pubic heir as well as wearing appeals of the victim under seizure list Ext.2. P.W.11 Dr. Suresh Chandra Tripathy was the Asst. P.W.10 Ramakanta Rout was the constable who stated about the seizure of sealed packet containing vaginal swab, pubic heir as well as wearing appeals of the victim under seizure list Ext.2. P.W.11 Dr. Suresh Chandra Tripathy was the Asst. Surgeon at D.H.H., Bargarh who examined the appellant Sankirtan Khadia and proved his report Ext.6. P.W.12 Dr. Nayaran Prasad Mishra was the O & G Specialist, D.H.H., Bargarh who examined the victim and proved his report Ext.7. P.W.13 Paresh Kumar Nayak took the X-ray of the victim and handed over the x-ray plates to the doctor. P.W.14 Narasingh Debta was the Havildar attached to Bargarh Town police station who accompanied the victim and the appellants to D.H.H., Bargarh for their medical examination. He further stated about the seizure of the wearing apparels of the victim and the appellants. P.W.15 Debananda Nayak was the constable who stated to have taken the appellants for their medical examination and then produced the wearing apparels of the appellants before police for its seizure. P.W.16 Gopabandhu Jagadala was the Home Guard who stated about the seizure of wearing apparels of the appellants and the victim. P.W.17 Kabita Bag is the sister-in-law of the victim and she stated about the disclosure of the victim that appellant Raghu Sika and another committed rape on her and the victim girl pointing out the appellant Sankirtan Khadia on the next day to her. P.W.18 Rashmita Suna and P.W.19 Janaki Suna did not support the prosecution case for which they were declared hostile. P.W.20 Gananath Bhoi is the scribe of F.I.R. P.W.21 Pabitra Mohan Behera stated about the seizure of wearing apparels brought from D.H.H., Bargarh under seizure list Ext.5. P.W.22 Rupakanti Singh stated about the disclosure made by the mother of the victim regarding commission of rape on the victim by the appellants. P.W.23 Rashmita Patel was the W.S.I. attached to Bargarh Town Police Station who is the Investigating Officer. The prosecution exhibited twelve numbers of documents. Exts.1 is the F.I.R., Exts.2, 5 and 9 are the seizure lists, Ext.3 is the medical report, Ext.4 is the opinion report, Ext.6 is the medical report of appellant Sankirtan Khadia, Ext.7 is the medical report of the victim, Ext.8 is the x-ray plates, Ext.10 is the rough spot map, Ext.11 is the office copy of letter sending the Exhibits and Ext.12 is the Chemical examination report. 5. Miss. 5. Miss. Geetanjali Majhi, learned counsel appearing for the appellants strenuously contended that the impugned judgment and order of conviction is not sustainable in the eye of law in as much as even though the victim was examined by the doctor on the next day of the occurrence, no injury on her private parts suggestive of rape and no sign and symptoms of sexual intercourse was found on her body and even though the vaginal swab was collected by the doctor and it was sent for chemical examination, no blood and no semen was found as per the chemical examination report. It is further contended that the victim has not been examined in the case as she was a mentally retarded girl. It is further contended that even though the victim was called to the Court on being summoned and the help of the interpreter who is the Asst. teacher of the School for mentally retarded under Management of Physically Handicapped School, Bargarh was taken but the victim could not speak anything and therefore, the learned Trial Court held that the victim girl is prevented from understanding the questions put to her and for giving rational answers to those questions because of mental retardation. It is further contended that the victim had disclosed before her parents that it is the appellant Raghu Sika who had committed sexual intercourse with her against her will and since she has not implicated the other appellant Sankirtan Khadia in any manner before her parents immediately after the occurrence, the conviction of the said appellant is not sustainable in the eye of law. It is further contended that the evidence of P.W.17, the sister in-law of the deceased that the victim pointed out to the appellant Sankirtan Khadia to her while she had been to the pond with the victim cannot be accepted. It is contended that there is absence of material to show that gang rape was committed on the victim and therefore, the appellants should be given benefit of doubt. 6. Mr. Prem Kumar Patnaik, learned Addl. It is contended that there is absence of material to show that gang rape was committed on the victim and therefore, the appellants should be given benefit of doubt. 6. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand contended that even though the victim has not been examined in Court because of her mental weakness and retardation but apart from the disclosure made before her parents and others, the evidence of P.W.3 Sourav Meher is very clinching against appellant Raghu Sika in whose company, the victim was found inside the hotel room which was closed from inside. The learned counsel further submitted that the doctor has stated while examining the victim that the private part suggested of recent sexual intercourse and therefore, there is no infirmity and illegality in the order of conviction passed by the learned Trial Court. 7. Coming to the non-examination of the victim before the learned trial Court, it appears that in Paragraph-6 of the impugned judgment, the learned Trial Court has held as follows:- “6. In the present case, admittedly, the victim is a mentally retarded woman. The prosecution did not choose to examine this witness. Order dated 16.12.2011 passed in this case reveals that the Associate Lawyer had filed a memo for dispensing with the evidence of the victim girl stating that she is unable to depose before the court due to mental retardation, weakness, and illness. On being summoned by the court the victim girl was produced by her mother. An Interpreter, Sri Nepal Duan, Assistant Teacher of the School for the Mentally Retarded under Management of Physically Handicapped School, Bargarh was also present on being summoned by the court for the purpose of interpretation of the statement of the victim during her examination. The said Interpreter as well as the Associate Lawyer tried to get the victim speak, but she could not speak anything. The Interpreter had disclosed that the victim was not able to speak due to her weakness, illness and mental retardation. It has been further submitted by him that the mental retardation with the victim is not curable. The order further reveals that the court has also observed that it was not possible to examine the victim girl as a witness as she was not able to talk or understand due to her mental retardation. It has been further submitted by him that the mental retardation with the victim is not curable. The order further reveals that the court has also observed that it was not possible to examine the victim girl as a witness as she was not able to talk or understand due to her mental retardation. As such her evidence was dispensed with and she was discharged. Thus, it is found that the victim girl is prevents from understanding the questions put to her and from giving rational answers to those questions because of her mental retardation. In such circumstance, non-examination of the victim girl in no way affects the prosecution case.” Therefore, it cannot be said that the prosecution deliberately did not examine the victim before the Trial Court. No doubt in a case of rape, the victim is a star witness but in the present scenario when attempt was made by the learned Trial Court to examine the victim with the help of the interpreter and it was found to be unsuccessful and the Court also came to hold that the victim was prevented from understanding the questions put to her and giving rational answers because of mental retardation, I am of the view that the learned trial Court was quite justified in not examining the victim. Section 118 of the Indian Evidence Act which deals with who can testify indicates that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether or body or mind, or any other cause of the same kind. In the explanation portion, it is mentioned that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. Section 118 Evidence Act has been worded negatively. If the Court would consider that a particular witness does not understand the question put to him and fails to give rational answers to those questions, the Court would not proceed to take evidence of that witness. Section 118 Evidence Act has been worded negatively. If the Court would consider that a particular witness does not understand the question put to him and fails to give rational answers to those questions, the Court would not proceed to take evidence of that witness. Therefore, when the victim did not speak anything in spite of sincere effort made by the interpreter because of her weakness, illness and mental retardation, the learned Trial Court could not have recorded her statement as she was prevented from understanding the questions put to her and giving rational answers to such questions. 8. Coming to the evidence of the parents of the victim, P.W. 1 who is the informant has stated that the victim disclosed before him that appellant Raghu Sika told her to give sweets and took her to mango garden at Panichhatar and he also committed sexual intercourse on her against her will. P.W.1 is totally silent about the implication of the appellant Sankirtan Khadia by the victim. In the First Information Report which was lodged on 06.12.2009, the name of the appellant Sankirtan Khadia does not find place. The victim has also not disclosed the name of appellant Sankirtan Khadia before her mother who has been examined as P.W.2 in as much as she stated before her mother that the appellant Raghu Sika had taken her and committed rape on her by the side of the house. The sister-in-law of the victim who has been examined as P.W.17 has also stated about the disclosure made by the victim and she has stated that the victim disclosed before them that appellant Raghu Sika took her near a house in the mango grove and committed rape on her and another person had also committed rape on her but she could not disclose the name of the other person. This statement of P.W.17 first of all does not indicate as to who is that other person the victim was referring to. Moreover, the participation of any other person other than the appellant Raghu Sika cannot be accepted as the victim had not disclosed about such aspect before her parents P.W.1 and P.W.2. This statement of P.W.17 first of all does not indicate as to who is that other person the victim was referring to. Moreover, the participation of any other person other than the appellant Raghu Sika cannot be accepted as the victim had not disclosed about such aspect before her parents P.W.1 and P.W.2. The evidence of P.W.17 further goes to show that on the next day morning when she along with the victim girl had been to a pond in their village and they were taking bath, the other person who had committed rape was passing by that road and the victim identified that person stating that he had committed rape on her. This statement of P.W.17 is too difficult to be accepted particularly when the victim has disclosed at the first instance before her parents that only one person committed rape on her and that person is appellant Raghu Sika. Apart from the disclosure aspect against appellant Raghu Sika, the evidence of P.W.3 who is the hotel owner where appellant Raghu Sika was working as a sweeper and appellant Sankirtan Khadia was working as a cook is very relevant. P.W.3 has stated that when he returned from market, he found the door of the hotel was locked from the inside and then he called the appellant Raghu Sika who opened the door of the hotel and he found that the victim was inside the room of the hotel and he asked the appellant why he had kept the victim with him in the hotel and asked him to leave her in the house and then the appellant Raghu took the victim with him to leave her at her house. The witness has further stated that at that point of time, the appellant Sankirtan was outside the hotel and he was taking fried rice (Mudhi and Chana). This is also another feature which excludes the participation of appellant Sankirtan Khadia in the crime rather the evidence of P.W.3 regarding the presence of the appellant Raghu Sika and the victim inside the hotel room corroborates the disclosure made by the victim before her parents. This is also another feature which excludes the participation of appellant Sankirtan Khadia in the crime rather the evidence of P.W.3 regarding the presence of the appellant Raghu Sika and the victim inside the hotel room corroborates the disclosure made by the victim before her parents. The victim was aged about 15 years at the time of occurrence as stated by her mother (P.W.2) who has further stated that the victim attended puberty three years back at the age of twelve and she further stated that due to an accident, when the victim was seven years old, she was not of soundness of mind. Therefore, when the age of the victim was 15 years at the time of occurrence, the question of plea of consent also does not arise. Needless to say that the age factor of the victim has not been challenged by the defence during cross examination. The finding of the doctor that on examination of the private part, there was suggestive of recent sexual intercourse also corroborates the version of the victim. Therefore, in view of the available materials on record, I am of the view that even though the victim has not been examined in Court during trial but in view of the materials available on record i.e. the presence of the appellant Raghu Sika and the victim inside the hotel room, the disclosure made by the victim before her parents regarding commission of rape by the appellant Raghu Sika and also the medical examination report regarding sign of recent sexual intercourse are sufficient enough to arrive at a conclusion that the prosecution has proved its case beyond all reasonable doubt against appellant Raghu Sika to have committed rape on the victim who was a minor on the date of occurrence. So far as the other appellant Sankirtan Khadia is concerned, in absence of any clinching material against him and particularly when he was not present inside the room at the time of occurrence as stated by P.W.3 and his name has not been disclosed by the victim at the first instance after the occurrence before her parents, I am of the view that he is entitled to be given benefit of doubt. Accordingly, the appellant Sankirtan Khadia is acquitted of the charge under section 376(2)(g) of the Indian Penal Code. Accordingly, the appellant Sankirtan Khadia is acquitted of the charge under section 376(2)(g) of the Indian Penal Code. Since the prosecution has failed to establish that more than one person participated in the rape of the victim on the date of occurrence, the conviction of the appellant Raghu Sika under section 376(2)(g) of the Indian Penal Code is not sustainable in the eye of law. However, he is found guilty under section 376 of the Indian Penal Code. It appears that appellant Raghu Sika was arrested on 07.12.2009 and he was forwarded to Court on 08.12.2009. Neither in the Trial Court nor before this Court, he has been granted bail and therefore, it appears that he has already undergone substantive sentence of seven years and nine months. Considering the submission made by the learned counsel for the appellant while altering the conviction of appellant Raghu Sika to one under section 376 of the Indian Penal Code, I sentenced him to the period already undergone. Therefore, the appellant Raghu Sika be released from custody forthwith, if his detention is not otherwise required in any other case. The appellant Sankirtan Khadia who has been acquitted of the charge under section 376(2)(g) of the Indian Penal Code should also be set at liberty forthwith if his detention is not otherwise required in any other case. Accordingly, the Jail Criminal Appeal No. 35 of 2012 filed by appellant Sankirtan Khadia is allowed. Jail Criminal Appeal No.34 of 2012 filed by the appellant Raghu Sika is dismissed subject to the modification of the order of conviction from one under section 376(2)(g) of the Indian Penal Code to one under section 376 of the Indian Penal Code and modification of sentence to the period already undergone. The appellant Raghu Sika be set at liberty forthwith if his detention is not otherwise required in any other case. The hearing fee for both the criminal appeals is assessed to be Rs.5000/-(five thousand only) which would be paid to the learned counsel for the appellants immediately.