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2017 DIGILAW 1156 (ORI)

Siba Behera v. State of Orissa

2017-10-14

D.P.CHOUDHURY

body2017
JUDGMENT : D.P. Choudhury, J. The appellant, having been convicted for commission of offence under Section 376(2)(f) of the Indian Penal Code, 1860 (in short “the IPC”) on 05.10.2010 and sentenced to undergo R.I. for ten years and to pay a fine of Rs.20,000/- in default to undergo R.I. for one year with a further direction to set off the U.T.P period already undergone, has preferred this appeal from jail. 2. The factual matrix leading to the case of prosecution is that on 15.11.2009 at about 2.00 PM, while the father and mother of the victim girl, who is aged about 5 years, had been to their work, the appellant entered the house of the informant and after removing the dress of the victim girl, committed sexual intercourse with her forcibly. When she cried, the appellant left the house. The parents of the victim girl came back at about 2.30 PM and the victim narrated the incident to them. Thereafter, the father of the victim girl searched for the appellant and finally informed the police. During investigation by the police, witnesses were examined, wearing apparels of the victim girls were seized. The police sent the victim girl and the appellant for their medical examination. Police also sent the seized property for chemical examination and after completion of the investigation, charge sheet was submitted. 3. The plea of the defence is complete denial to his complicity with the commission of offence and he pleaded innocence. 4. Learned trial Court, after examining ten witnesses and relying on the documents exhibited by the prosecution, found the appellant guilty and convicted him under erstwhile provisions of Section 376(2)(f) of the IPC with a further direction to undergo R.I. for ten years for that offence and to pay a fine of Rs.20,000/- in default to undergo further R.I. for one year. The defence examined none. 5. Mr. Nayak, learned counsel for the appellant submitted that there are lot of contradictions between the statement of P.Ws.1, 4 and other witnesses about the occurrence narrated by the victim girl before them. Most of the witnesses are relatives of the victim girl for which their evidence should not be relied upon to arrive at a conclusion. 5. Mr. Nayak, learned counsel for the appellant submitted that there are lot of contradictions between the statement of P.Ws.1, 4 and other witnesses about the occurrence narrated by the victim girl before them. Most of the witnesses are relatives of the victim girl for which their evidence should not be relied upon to arrive at a conclusion. According to him, the medical evidence of the doctor only shows about two abrasions on the person of the victim girl but the doctor has opined that they are possible by fall on a surface. Since the medical evidence is not clear enough to prove the rape committed by the appellant, the same should not be relied upon to base conviction. Further, he submitted that the chemical examination report has not been proved by the prosecution although it is alleged that the Panty of the victim girl contains the stain. Since there are so many departures in the prosecution evidence, the case of the prosecution should not be relied on to record conviction. As such, he prays to acquit the present appellant by allowing the JCRLA. 6. Mr. Patra, learned Additional Standing Counsel for the State submits that the victim girl is only aged about 5 years and in her examination, she has categorically narrated the occurrence of rape committed by the present appellant. He further submits that the doctor has opined that the injuries on the private part of the victim girl are possible when there is any attempt to commit rape. According to him, since it is a sexual intercourse committed upon a child, the relatives can only speak about the truth and there is no bar in law to discard the statement of the relatives if they are found to be reliable after proper scrutiny. He again submits that contradictions hither and thither are bound to occur but cannot be taken as a basis to reject the well proved case of the prosecution. So, he fully supports the judgment of the learned trial Court and prays to confirm the sentence passed by dismissing the JCRLA. 7. DISCUSSIONS In the case of State of Punjab Vs. He again submits that contradictions hither and thither are bound to occur but cannot be taken as a basis to reject the well proved case of the prosecution. So, he fully supports the judgment of the learned trial Court and prays to confirm the sentence passed by dismissing the JCRLA. 7. DISCUSSIONS In the case of State of Punjab Vs. Gurmit Singh; (1996) 2 SCC 384 , Hon’ble Supreme Court, at paragraph-8 of the judgment, have held in the following manner:- "............The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. 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. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. 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. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable...............". 8. Keeping in mind the above proposition of law decided by the Hon’ble Supreme Court, let the evidence available on record be discussed. On going through the materials available on record, it appears that out of ten witnesses, P.W.5 is the victim girl. It appears that the trial Court, for observing Section 118 of the Evidence Act, posed some questions to the victim girl and found that she understood the same and accordingly gave answer of the same. After satisfying about her competency to depose, her statement was recorded. According to her statement, the appellant dragged her to the roof and after removing her Chadi (Panty), made attempt to commit sexual intercourse with her and she got pain. Then the appellant left the place. When her mother came, she narrated the incident to her. After satisfying about her competency to depose, her statement was recorded. According to her statement, the appellant dragged her to the roof and after removing her Chadi (Panty), made attempt to commit sexual intercourse with her and she got pain. Then the appellant left the place. When her mother came, she narrated the incident to her. She stated to have got pain while urinating. She has been cross-examined vividly and during her cross-examination, she also stated that the appellant told her not to shout which shows that the appellant had also intimidated the victim girl, who is aged about 5 years. In her cross-examination, she fully narrated about the details of occurrence by stating that the appellant, after taking her to the roof and removing her Chadi (Panty), put his male organ on her private part. She also shows the gesture of sexual offence as recorded by the trial Court. Even if she is a child, but the evidence of child is quite clear, consistent and cogent to prove the sexual intercourse made by the appellant. It is well settled in law that if the evidence of a victim girl, even if a child, is found to be above the approach and convincing, there is no bar to base conviction on such statement of the child without being any corroboration sought for from any other evidence, However, for abundant caution, there is no bar to read other evidence adduced by the prosecution. Her evidence does not disclose to have been tutored as in cross-examination her testimony also remained unshaken. 8. P.W.4 is the mother of the victim girl (P.W.5). Her statement shows that after return from work, she found P.W.5 was crying and complaining pain in her private part. On query, she narrated the incident to her. She has also been cross-examined, but nothing is found out in her cross-examination to discard her testimony. The statement of the father of the victim (P.W.1), who is the informant of the case, shows that after he returns to the house, P.W.4 narrated the incident to him. They went to the police station and lodged the FIR. There is nothing revealed from his cross-examination that he has got any enmity with the appellant although he has been grilled during cross-examination. They went to the police station and lodged the FIR. There is nothing revealed from his cross-examination that he has got any enmity with the appellant although he has been grilled during cross-examination. The statement of P.W.2, who is the grandmother of the victim also corroborates the statements of P.Ws.1 and P.W.4 to the extent that the victim has narrated the incident in her presence also. The statement of P.W.6, a relative of the victim girl shows that he has learnt about the occurrence from the father of the victim. 9. The most crucial witness, in this case, is the doctor (P.W.7), who stated that he has found two abrasions on her private part of size 1 cm. X 0.5 cm on left side labia majora towards lower end of inner aspect and another abrasion of size 1 cm X 0.05 cm on right side of labia majora towards lower end of inner aspect. He also proved the report vide Ext.7. He also proved the report of the radiologist, who found the age of the child would be 2 to 4 years. He further stated that the abrasion as per opinion No.1 (Ext.7) may be possible if there was any attempt of rape. In his cross-examination, he stated that injuries as per opinion No.1 can be possible on the part of the victim if she falls on rough surface and also in case of itching. The case of the defence has not been suggested as such to any of the prosecution witnesses including the victim that the injuries are possible by fall on any rough surface or itching. However, the evidence of the doctor cannot be wiped out so far as the injuries as found by him on the genital part of the victim are possible by partial penetration, which absolutely corroborates victim as to the manner of sexual assault by the appellant upon the victim girl. The doctor’s opinion is enough to show that the appellant had committed rape by partial penetration although sexual intercourse is not completed as victim is only child of 2 to 4 years old having no proper development of female genetalia. As per Modi’s Medical Jurisprudence and Toxicology, in small children, hymen, being situated high up in the canal, is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. As per Modi’s Medical Jurisprudence and Toxicology, in small children, hymen, being situated high up in the canal, is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. In the case of Aman Kumar Vs. State of Haryana; AIR 2004 SC 1497 , it is observed that partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape. 10. The evidence of P.Ws.8 and 10 are clear to show that they have seized the wearing apparels of the victim girl and sent the same for chemical examination. But prosecution has not produced the chemical examination report. Learned trial Court also has not called for the said report. It is not only the duty of the prosecution to produce the chemical examination report but also heavy duty is cast on the trial Court to ensure the report of the chemical examiner is accompanied with the record while either committed or submitted with final form. Even during trial, the Court should not forget to call for chemical examination report as it also unveils the truth where the case is based on circumstantial evidence or case is based on direct evidence where a doubt is raised in the mind of the Court as to complicity of a culprit. However, in the case at hand, there are enough material to find out the truth in the allegations of the prosecution, non-submission of the chemical examination report, cannot stand as a bar for the prosecution to prove its case. 11. In view of the aforesaid analysis, the prosecution has well proved the offence under Section 376 (2)(f) of the IPC by clear and cogent evidence and no evidence has been adduced by the defence to prove his innocence. As per ingredients of Section 376(2)(f) of the IPC before amendment in 2013, there must be rape and secondly the victim girl must be below 12 years old. 12. It is well settled in law that any attempt to commit rape in such circumstances amounts to penetration, which is otherwise complete offence under Section 376(2)(f) of the IPC. Hence, the conviction recorded by the trial Court under Section 376(2)(f) of IPC cannot be said to be faulted with. 12. It is well settled in law that any attempt to commit rape in such circumstances amounts to penetration, which is otherwise complete offence under Section 376(2)(f) of the IPC. Hence, the conviction recorded by the trial Court under Section 376(2)(f) of IPC cannot be said to be faulted with. After going through the judgment and order of conviction passed by the trial Court, nothing is found to depart from the conclusion arrived at by the Special Judge. Moreover, it is well settled in law that the Court should not award any sentence below the minimum prescribed. As such, since minimum ten years sentence is prescribed as minimum sentence for the offence under Section 376(2)(f) of IPC, this Court does not find any ground to interfere in the impugned judgment. Thus, the Court hereby confirm the order of conviction and sentence passed by the learned trial Court. In the result, the JCRLA, being devoid of merit, stands dismissed.