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2017 DIGILAW 1135 (ORI)

Jagadish Behera v. State of Orissa

2017-10-12

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Jagdish Behera faced trial in the Court learned Asst. Sessions Judge, Patnagarh in Sessions Case No.93- B/21 of 2005 for offence punishable under section 376(2)(f) of the Indian Penal Code for committing rape on the victim who was a minor girl aged about 4 years on 18.05.2005 at about 8 a.m. The learned trial Court vide impugned and order 27.01.2007 found the appellant guilty of the offence charged and sentenced him to undergo R.I. for a period for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default of payment of fine, to undergo R.I. for a period of one year. 2. The prosecution case, as per the first information report lodged by P.W.2 Dr. Sudhir Kumar Meher on 21.5.2005 before the officer in charge of Khaprakhol police station is that on 18.5.2005 at about 8 a.m. while his daughter (victim) was playing in front of the house and she went into the house of the appellant who was a neighbour, the appellant opened the pant of the victim as well as his own pant and inserted his penis into the private parts of the victim. It is further mentioned that at that time, the victim was aged about four years and was reading in Saraswati Sishu Mandir. The occurrence was disclosed by the victim in the night before the informant as well as his wife. On the basis of such first information report, Khaprakhol P.S. Case No.40 of 2005 was registered on 21.5.2017 under section 376(2)(f) of the Indian Penal Code. P.W.11 who was the officer in charge of Khaprakhol Police Station took up investigation of the case, visited the spot, examined the victim, seized the original birth certificate of the victim vide Ext.4 from the informant under seizure list Ext.2 and he also seized the wearing apparels of the victim. The appellant was arrested and his wearing apparels were seized under seizure list Ext.6. The appellant was sent to Medical Officer, Lathor P.H.C. and the victim was also sent to S.D. Hospital, Patnagarh for her medical examination. On 24.05.2005 vaginal swab of the victim was collected and sent by the Medical officer, Patnagarh which was seized under seizure list Ext.9. The Investigating Officer also collected semen specimen of the appellant under seizure list Ext.10 which was collected by Medical Officer, Lathor. On 24.05.2005 vaginal swab of the victim was collected and sent by the Medical officer, Patnagarh which was seized under seizure list Ext.9. The Investigating Officer also collected semen specimen of the appellant under seizure list Ext.10 which was collected by Medical Officer, Lathor. He sent specimen samples and wearing apparels to R.F.S.L., Sambapur through S.D.J.M., Patnagarh. On completion of investigation, charge sheet was submitted against the appellant on 12.09.2005 under section 376(2)(f) of the 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 the Indian Penal Code on 01.03.2006 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. The defence plea of the appellant was that he had pawned a gold chain with the informant for Rs.2000/- and when he wanted to return the money to get back the gold chain, the informant did not agree and foisted the case. 5. During course of trial, the prosecution examined eleven witnesses. P.W.1 Nanda Ram Verma was a neighbour of the informant and he stated that the informant disclosed before him regarding immoral relationship of the appellant with the victim on 18.5.2005. He advised the informant to take action as he thinks proper. P.W.2 Dr. Sudhir Kumar Meher is the father of the victim and he is also the informant in the case and he stated about the disclosure made by the victim to her mother regarding the commission of rape on her by the appellant. He further stated that the appellant begged apology before him for the occurrence when he was confronted about the same. He is a witness to the seizure of the chadi of the victim under seizure list Ext.2 and also the birth certificate of the victim. P.W.3 is the victim who narrated the incident of rape on her by the appellant. P.W.4 Smt. Sabita Meher is the mother of the victim and she stated about the disclosure made before her by the victim regarding commission of rape on her by the appellant and she proved the birth certificate of the victim as Ext.4. P.W.3 is the victim who narrated the incident of rape on her by the appellant. P.W.4 Smt. Sabita Meher is the mother of the victim and she stated about the disclosure made before her by the victim regarding commission of rape on her by the appellant and she proved the birth certificate of the victim as Ext.4. P.W.5 Ghasi Meher, P.W.7 Jag Jivan Meher and P.W.9 Raghu Bhoi also did not support the prospection case for which they were declared hostile. P.W.6 Akhaya Meher stated about the seizure of chadi by police (M.O.I) under seizure list. P.W.8 Dr. Durga Dutta Das examined the victim on 22.5.2005 and he proved his report Ext.5. P.W.10 Dr. Sadhu Charan Dash examined the appellant and proved his report Ext.7. He referred the victim for medical examination to S.D.M.O., Patnagarh P.W.11 was the officer in charge of Khaprakhol police station who is the investigating officer in the case. The prosecution exhibited twelve documents. Ext.1 is the first information report, Ext.2 is the seizure list, Ext.3 is the zimanama, Ext.4 is the birth certificate of the victim, Exts. 5 and 7 are the injury reports, Ext.6 is the signature of P.W.9 in seizure list dated 21.05.2006, Ext.8 is the endorsement of S.D.M.O., Patnagath, Exts. 9 and 10 are the seizure lists, Ext.11 is the requisition and Ext.12 is the chemical examination report. The prosecution proved three material objects. M.O.I is the yellow chadi, M.O.II is the cement colour full pant and M.O.III is the sand colour brief. 6. The learned Trial Court in the impugned judgment has been pleased to hold while discussing the delay in lodging the first information report that in the instant case the delay has been satisfactorily explained and it rules out the possibility of fabrication. Learned trial Court further held that from the evidence of the victim, it is clear that the appellant did not force his penis into her vagina and therefore, it would not be unusual on the part of the doctor not to find any injury in her private parts and moreover, solely because of the absence of the injury, the evidence of P.W.3 cannot be thrown out. The learned trial Court further held that it is clear that P.W.3’s physical condition and tender age did not allow the penis of a full grown male as the appellant and she felt pain and by simply touching the vagina with the penis, there would be no pain and pain would only occur when there is slight insertion into the vaginal opening and therefore, it can be safely held that there was penetration. It is further held that the extra judicial confession of the appellant before P.W.2 also supports the prosecution case and it is proved that the appellant committed rape on the victim and the plea of the appellant is not believable. 7. Since the engaged counsel by the appellant did not appear to argue the appeal and it is a year old matter, Mr. Bibekananda Mohapatra, Advocate was engaged as the counsel for the appellant. He was supplied with the copy of the paper book and given time to prepare the case. After going through the paper book and lower court records, he placed the evidence of the victim, her parents, medical evidence and also the impugned judgment and contended that the judgment suffers from infirmities and the evidence of the victim is not acceptable in the eye of law more particularly when medical evidence does not corroborate the evidence of the victim and therefore, the appellant should be given benefit of doubt. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel on the other hand, supported the impugned judgment and submitted that it has been proved by the prosecution that the victim was below the age of twelve years at the time of occurrence and she has specifically stated as to how the appellant placed his penis on her private part and there was white discharge for which she felt pain and the victim also disclosed about the occurrence before her parents and non-finding of the injury on the victim’s private part because of the delay in her medical examination cannot be a ground to discard her evidence and therefore, the appeal should be dismissed. 8. 8. The victim was examined in this case as P.W.3 and she has stated her age to be five years at the time of deposition on 16.5.2006 and on the date of deposition, she was a student of Class-I of Saraswati Sishu Vidya Mandir, Lathore and she stated that the occurrence took place one year back. The birth certificate of the victim has been marked as Ext.4 which shows that the date of birth of the victim was 08.05.2001. The incident in question according to the prosecution took place on 18.5.2005 and therefore, as on the date of occurrence, the victim has just crossed four years of age. This aspect regarding the age of the victim has not at all been challenged by the defence in any manner. Therefore, not only from the evidence of the victim but also her parents and other family members as well as from the birth certificate, it is apparent that as on the date of occurrence, the victim had just crossed four years of age. The victim stated in her evidence that on the date of occurrence during the day time, the appellant opened his pant and her pant and put his penis on her vagina for which she suffered pain and white discharge from his penis fell on the ground and in the evening, she disclosed about the incident to her mother. The mother of the victim has been examined as P.W.4. She was an Ayurvedic doctor and she has stated on 18.5.2015 at about 7.00 p.m. when she returned from Harishankar, the victim stated that the appellant placed his penis on her private part for which she sustained pain and there was some white discharge from the penis which fell down on the ground. The father of the victim has been examined as P.W.2. He was also an Ayurvedic doctor and he has also stated about the disclosure made by the victim regarding the commission of crime by the appellant. P.W.2 further stated that he called the appellant to his clinic and enquired about the matter from him and first the appellant denied and then he said “MU SEMITI KARITHILE BHUL HOITHIBA ANGYA MOTE MAF KAR”. P.W.2 further stated that he called the appellant to his clinic and enquired about the matter from him and first the appellant denied and then he said “MU SEMITI KARITHILE BHUL HOITHIBA ANGYA MOTE MAF KAR”. P.W.2 has stated that he asked the appellant to go away and subsequently he told a tailor namely, Jagjeevan Meher about the occurrence and so also to P.W.1 and those two persons told him to take a decision as it was a sensitive matter and on 20.05.2005 in the night, he and his wife (P.W.4) discussed about the matter and informed their family members and accordingly, the F.I.R. was presented on 21.05.2005. Nothing has been elicited in the cross examination of either the victim or her parents to discard their evidence. The incident has taken place on 18.05.2005 in the morning hours and it was detected in the evening hours on the same day when the victim disclosed before her mother and thereafter, the appellant was confronted by the informant and then after consulting the family members and others, decision was taken by the informant to approach the police and accordingly, first information report was presented. In the facts scenario, I am of the view that there was no delay in lodging the F.I.R. or in other words the delay, if any, has been satisfactorily explained by the prosecution. The evidence of the victim not only gets corroboration from the evidence on her parents but also from the extra judicial confession which has been made by the appellant before the informant which is another incriminating material against the appellant. The doctor (P.W.10) who examined the appellant on 21.05.2005 has proved his report marked as Ext.7 and he has opined that easy erection of penis was possible. Though the doctor did not find any injury on the penis of the appellant but that cannot be a factor to disbelieve the evidence of the victim particularly when he was examined three days after the occurrence. The doctor has further stated that a slight penetration of the penis into the vagina of a child causes pain even if no visible injury would be present. Therefore, the evidence of the doctor coupled with the evidence of the victim that she felt pain when the appellant put his penis in her private part is another incriminating factor against the appellant. Therefore, the evidence of the doctor coupled with the evidence of the victim that she felt pain when the appellant put his penis in her private part is another incriminating factor against the appellant. The learned trial Court has rightly observed that the physical condition of P.W.3 and her tender age did not allow the penis of a full grown male as the appellant for which she felt pain by simply touching the vagina with the penis. It is stated that since the pain would occur when there is slight insertion into the vagina opening, therefore, there was penetration in the present case. 9. In view of the available materials on record, the evidence of the victim which is corroborated by her parents, the extra judicial confession of the appellant, the age of the victim, the explanation which has been offered by the prosecution regarding the delay in lodging the first information report and absence of any material to show the possibility of false implication of the appellant in the crime, I am of the humble view that the learned trial Court has rightly convicted the appellant under section 376(2)(f) of the Indian Penal Code. The sentence which was imposed on the appellant was the minimum which has been prescribed for such offence. Therefore, no interference is called for with the impugned judgment. Before parting with the case, I would like to put on record my appreciation to Mr. Bibekananda Mahapatra, 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 criminal appeal being devoid of merits, stands dismissed.