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2017 DIGILAW 1147 (ORI)

Bhramarbar Jena v. State of Orissa

2017-10-12

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Bhramarbar Jena faced trial in the Court of learned Addl. Sessions Judge (Fast Track Court-I), Bhadrak in Sessions Trial Case No. 26/100 of 2004 for offence punishable under section 376(2)(f) of the Indian Penal Code on the accusation that on 05.3.2004 at about 12 noon, he committed rape on the victim who was a minor girl while she was sleeping in her house at village Rajendrapur under Bhandaripokhari police station in the district of Bhadrak. The learned trial Court vide impugned judgment and order dated 23.03.2006 found the appellant guilty of the offence charged and accordingly, convicted him of such offence and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for a period of one year. 2. The prosecution case, as per the first information report (Ext.3) lodged by Padmalochan Nayak (P.W.3), the father of the victim is that his marriage was solemnized about ten to fifteen years back and he was staying at Rajendrapur and his wife Susila Nayak (P.W.7) was also staying with him and he was having two daughters and one son. It is further stated that on 05.03.2004 in the morning hours, when he had gone outside in his work so also his wife, at about 1 o’ clock in the afternoon when he came back home and went to attend the call of nature, his wife came running and intimated him that the appellant committed rape on the victim who was aged about eleven years. Hearing such news, the informant rushed back to his house and asked the victim about the occurrence who stated that while she was sleeping, the appellant entered inside the house and forcibly committed rape on her. The informant and his wife found bleeding from the private parts of the victim. The informant disclosed about the occurrence before the gentlemen of the village and then the victim was taken to the hospital where she was treated and report was lodged at the police station. It is stated that the wearing apparels of the victim were also containing blood stains. 3. The informant disclosed about the occurrence before the gentlemen of the village and then the victim was taken to the hospital where she was treated and report was lodged at the police station. It is stated that the wearing apparels of the victim were also containing blood stains. 3. P.W.11 Susil Kumar Mishra was the officer in charge of Bhandaripokhari police station, who on receipt of such written report, registered Bhandaripokhari P.S. Case No.21 of 2004 on 05.03.2004 under sections 450/376(f) of the Indian Penal Code and he himself took up investigation of the case. During course of investigation, he examined the victim, the informant and the scribe of the F.I.R. and other witnesses. He visited the spot, and prepared the spot map (Ext.8), seized the wearing apparels of the victim under seizure list Ext.1. On the same day, he arrested the appellant and sent him for medical examination and also seized the dhoti of the appellant under seizure list Ext.2. On 06.03.2004 the victim was sent to the District Headquarters Hospital, Bhadrak for medical examination under police requisition and the accused was also sent for medical examination to the A.D.M.O., D.H.H., Bhadrak and then the accused was forwarded to the Court. The I.O. received the medial report of the victim on 13.03.2004 and on 02.04.2004, he produced the material objects before the learned S.D.J.M., Bhadrak for forwarding the same to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and on completion of investigation, P.W.11 submitted charge sheet on 26.04.2004 under sections 450/376(f) of the Indian Penal Code against the appellant. 4. After submission of charge sheet, the case was committed to the Court of Session where the learned trial Court framed charge against the appellant on 05.04.2005 under section 376(2)(f) of the Indian Penal Code. Since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the session trial procedure was resorted to establish the guilt of the appellant. 5. In order to prove its case, the prosecution examined eleven witnesses. P.W.1 Kirtan Behera stated about the disclosure made by the informant regarding the commission of rape of the appellant on the victim. He has been declared hostile by the prosecution. P.W.2 Nabaghana Senapati also stated about the disclosure made by the mother of the victim regarding commission of rape by the appellant on the victim. P.W.1 Kirtan Behera stated about the disclosure made by the informant regarding the commission of rape of the appellant on the victim. He has been declared hostile by the prosecution. P.W.2 Nabaghana Senapati also stated about the disclosure made by the mother of the victim regarding commission of rape by the appellant on the victim. P.W.3 Padmalochan Nayak is the father of the victim who has stated about the disclosure made by the wife regarding commission of rape on the victim so also the disclosure made by the victim about rape on his query and he is the informant in this case P.W.4 Prafulla Kumar Sahu was the scribe of the F.I.R. P.W.5 Dr.Diptimayee Panda examined the appellant on 06.03.2004 at District Headquarters Hospital, Bhadrak and submitted her report Ext.4. P.W.6 Dr. Bhaskar Charan Sethi was the Medical Officer, P.H.C., Manjuri Road and he examined the victim on 05.03.2004 and proved his report Ext.5. P.W.7 Susila Nayak is the mother of the victim and she stated about the disclosure made by the victim before her regarding the commission of rape by the appellant and also stated about noticing bleeding injuries on the private parts of the victim. P.W.8 is the victim and she narrated about the occurrence. P.W.9 Dr. Parsuram Sahu is the Orthopedic Specialist attached to the D.H.H., Bhadrak who conducted the ossification test and found the age of the victim to be in between ten to twelve years and proved his report Ext.6. P.W.10 Dr. Amita Das was Asst. Surgeon attached to District Headquarters Hospital, Bhadrak and she examined the victim on 06.03.2004 and proved her report Ext.7. P.W.11 Dr. Sushil Kumar Mishra was the officer in charge of Bhandaripokhari police station who is investigating officer of the case. The prosecution exhibited as many as ten documents. Exts.1 and 2 are the seizure lists, Ext.3 is the F.I.R., Exts. 4, 5, 6 & 7 are the medical reports, Ext.8 is the spot visit report, Ext.9 is the letter issued to the S.F.S.L., Rasulgarh, Bhubaneswar, Ext.10 is the chemical analysis report. Three material objects are proved by the prosecution. M.O.I is the Chadi, M.O.II is the frock and M.O.III is the Dhoti. 6. The plea of the appellant is one of denial. 7. Three material objects are proved by the prosecution. M.O.I is the Chadi, M.O.II is the frock and M.O.III is the Dhoti. 6. The plea of the appellant is one of denial. 7. The learned trial Court after analyzing the evidence on record came to hold that no material whatsoever has been brought out in the cross-examination of the victim to disbelieve her evidence and except a bald suggestion that the appellant has been falsely implicated at the instance of the father of the victim, nothing has been elicited. It is further held that the evidence of the victim is amply corroborated by the evidence of her parents and another witness before whom she narrated the incident just after the occurrence. It is further held that the victim’s medical examination completely corroborates her version. The learned trial Court further held the victim to be aged about below twelve years at the time of incident on the basis of the ossification test report and other materials available on record and found the appellant guilty under section 376(2)(f) of the Indian Penal Code. 8. Mr. Subash Chandra Acharya, learned counsel appearing for the appellant challenged the impugned judgment and contended that the judgment is perverse and the evidence on record has not been properly appreciated by the learned trial Court. He placed the evidence of the victim and medical examination report. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel appearing on behalf of the State on the other hand supported the impugned judgment and submitted that the evidence of the victim is clinching and trustworthy and it is corroborated by her parents and medical examination report and since the age of the victim has been rightly opined to be below twelve years, the learned Trial Court was justified in convicting the appellant of the offence charged. 9. The victim has been examined as P.W.8. Since the victim was a child witness, the learned trial Court initially tested the victim by putting some formal questions and found that the victim was capable of understanding the questions put to her and giving rational answers. The trial Court satisfied himself after preliminary examination that P.W.8 was a competent witness within the meaning of section 118 of the Evidence Act. The trial Court satisfied himself after preliminary examination that P.W.8 was a competent witness within the meaning of section 118 of the Evidence Act. The victim has stated in detail as to how the appellant entered inside the house and gagged her mouth and forcibly committed sexual intercourse and when she cried in pain, the appellant left the house. The victim has stated that the blood oozed out from her private part and her legs were stained with blood and then her mother (P.W.7) arrived at home and she narrated the incident before her and after arrival of her father (P.W.3), she also narrated the incident before her father. The victim has stated that she did not resist when the appellant undressed her chadi but cried out of fear. She has further stated that she did not notice the entry of the appellant to the house while she was sleeping. Nothing has been elicited in her cross examination to disbelieve her evidence. The evidence of the victim is corroborated by her mother who has been examined as P.W.7. She has stated that when she returned home, she found the victim crying and she was in a bleeding condition and she told that the appellant forcibly committed sexual intercourse on her by gagging her mouth. The mother of the victim disclosed about the incident before the informant who is none else than the father of the victim who has stated that P.W.7 told him about the commission of rape by the appellant and he made a query to the victim who also stated that while she was alone in the house, the appellant came and forcibly committed rape after gagging her mouth and he found blood oozing out from the private part of her daughter. Therefore, the evidence of the victim regarding rape by the appellant is corroborated by the evidence of her parents before whom she immediately disclosed about the occurrence. This conduct of the victim in disclosing about the occurrence is admissible as res gestae under section 6 of the Evidence Act. Thereafter, the parents of the victim have also disclosed about the incident before others. The evidence of the doctor who examined the victim on the same day i.e. on 05.03.2004 is also very relevant. This conduct of the victim in disclosing about the occurrence is admissible as res gestae under section 6 of the Evidence Act. Thereafter, the parents of the victim have also disclosed about the incident before others. The evidence of the doctor who examined the victim on the same day i.e. on 05.03.2004 is also very relevant. P.W.6 has stated that she found profuse bleeding from the vulva of the victim and also bleeding wounds on her private parts and opined that the age of the injuries were half an hour at the time of examination and the injuries were possible due to sexual intercourse. The other doctor (P.W.10) who examined the victim on 06.03.2004 also found number of injuries including the hymen injury and she collected the vaginal swab and opined that the injuries were possible due to sexual intercourse. Therefore, the evidence of the victim also gets corroboration from the two doctors i.e. P.W.6 & P.W.10. Although legally there is no bar in accepting the uncorroborated testimony of a child witness yet prudence requires that it should be accepted with great caution as there is always possibility of coaching and tutoring to such witness. After scrutinizing the evidence of the victim with great care and caution, I find her to be a natural witness and there are no infirmities in her evidence and therefore, she is a wholly reliable and truthful witness. The doctor (P.W.9) who has conducted ossification test of the victim has opined that as per his report Ext.6, the victim girl was aged about 10 plus minus 2 years. The parents of the victim so also the victim have stated about her age to be below than twelve years at the time of occurrence. The age of the victim has not been challenged by the defence. Thus the learned trial Court has rightly assessed the age of the victim to be below twelve years at the time of incident. The appellant was also examined on 06.03.2004 after his arrest on police requisition by the doctor (P.W.5) who has stated that he found an abrasion on the face and the age of the injury was opined to be 48 hours and he proved his report Ext.4. The wearing apparels of the victim i.e. navy blue scot, green chadi which were seized by the Investigating Officer were found to be containing human blood on chemical analysis. The wearing apparels of the victim i.e. navy blue scot, green chadi which were seized by the Investigating Officer were found to be containing human blood on chemical analysis. Thus the cumulative effect of the evidence on record clearly indicates that the victim was a minor girl below the age of twelve years at the time of incident and her evidence that she was raped by the appellant is clinching, trustworthy, cogent and reliable and her evidence gets corroboration not only from her parents but also from other surrounding circumstances including the medical evidence. Therefore, I am of the view that there is no illegality or infirmity in the impugned judgment of the learned trial Court in holding that the appellant committed rape on the victim who was below twelve years on the date of occurrence and convicting him under section 376(2)(f) of the Indian Penal Code. I am of the further view that the learned trial Court was also justified in imposing the sentence of rigorous imprisonment for ten years which is the minimum sentence prescribed for such offence and also imposing a fine of Rs.5000/- and awarding default sentence. Accordingly, the criminal appeal being devoid of merits, stands dismissed.