Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1198 (ORI)

Haria @ Hrushikesh Sethi v. State of Orissa

2017-10-26

D.P.CHOUDHURY

body2017
JUDGMENT : DR. D.P. CHOUDHURY, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 20.03.2013 passed by the learned Sessions Judge, Balasore in Sessions Trial No.144 of 2012 under Section 450 and 376 of the Indian Penal Code. 2. The adumbrated facts leading to the case of the prosecution is that on 14.4.2002 the mother of the victim girl had gone to Swarnamani Nodal U.P. School to prepare the Midday Meal and the father of the victim had gone outside for work. It is alleged inter alia that on that date at 9.00 A.M. the appellant went to the house of the victim and finding absence of the parents, made the victim undressed and committed sexual intercourse with her forcibly and after commission of offence left the house of the victim. While he was coming out of the house the witnesses have seen his departure. The parents came at 12.30 P.M. and victim narrated the incident to them. The parents called the meeting in the village and as per instruction of the villagers, the father of the victim lodged the F.I.R. on the same day. 3. During investigation, Police examined the witnesses and sent the victim and the appellant for medical examination. Police also seized the wearing apparels of the victim and vaginal swab of the victim collected by the doctor. During investigation, Police seized the semen of the appellant collected by the doctor. Then Police sent all the seized materials to the State Forensic Laboratory for chemical examination. After completion of investigation, charge-sheet was submitted. 4. The plea of the appellant as available from the statement recorded under Section 313 of Cr.P.C. and the cross-examination made by the P.Ws. that he has been falsely implicated in this case and there is no such occurrence took place. He has taken specific plea that he had gone to the house of the victim but due to absence of the parents of the victim, he came out. He has also taken specific plea that he being the member of the Nodal Committee had filed case against the Headmaster of the School where the mother of the victim was working as Mid-day Meal cook, in order to take revenge against the present appellant the School authority must have filed the false case through the mother of the victim. 5. 5. Learned trial court examined as many as 12 witnesses and after analyzing the evidence on record believed the case of the prosecution. Learned trial court reposed confidence on the evidence of the victim and finally found the appellant guilty and on conviction, sentenced him to undergo R.I. for seven years and to pay fine of Rs.5,000/-in default to undergo further R.I. for six months for committing the offence punishable under Section 450 of the I.P.C. and further sentenced the appellant to undergo R.I. for seven years and to pay fine of Rs.5,000/-in default to undergo further rigorous imprisonment for a period of six months for the commission of offence under Section 376 of I.P.C. 6. Ms. Subhalaxmi Devi, learned counsel engaged as amicus curiae to defend the appellant submitted that there are lots of contradictions between evidence of witnesses. According to her the evidence of victim cannot be relied because her evidence about the commission of rape does not find corroboration from the evidence of doctor. The evidence of doctor clearly shows that there was no any injury on the body of the victim and no any injury on the female genitalia of the victim. Apart from this, she submitted that the victim has stated to have bitten the hand of the appellant as a mark of protest but no such injury is found by the doctor while the appellant was examined. Moreover, the chemical examination report is not proved by the prosecution to lend corroboration to the case of the prosecution. She further submitted that due to filing of the case by the appellant against the Headmaster of the School where the mother of the victim was working, the appellant has been falsely implicated in this case at the instance of the School authority where he is also a Nodal Committee member. So, learned counsel for the appellant submitted to acquit the appellant. 7. Learned counsel for the State submitted that the statement of victim should be taken into confidence because she is a minor girl. He submitted that the victim has categorically stated that in absence of her parents, the appellant entered to their house and committed forcible sexual intercourse with her for which her evidence has been rightly relied on by the learned trial court. He submitted that the victim has categorically stated that in absence of her parents, the appellant entered to their house and committed forcible sexual intercourse with her for which her evidence has been rightly relied on by the learned trial court. According to him, the evidence of doctor cannot be taken as sacrosanct always to lend corroboration to the evidence of a girl child in sexual offences. 8. Learned counsel for the State submitted that learned trial court after analysing the evidence of victim and her relatives has correctly come to a conclusion about the commission of offence against the appellant. According to him, law is settled that in the case of rape, the statement of victim must be given priority seeking no corroboration from other evidence. 9. Learned Additional Government Advocate further contended that the report of the doctor also gives hints about the commission of rape but could not explain exactly where the doctor have opined about the commission of rape against the appellant. However, he fully supported the judgment of conviction and sentence passed by the learned trial court. DISCUSSION 10. It is reported in Vijay v. State of Madhya Pradesh, (2010) 8 SCC 191 where Their Lordships at paragraph-14 have observed in the following manner: “14. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. 11. In State of Rajasthan v. Babu Meena, (2013) 4 SCC 206 , where Their Lordships at para-9 have observed the following: “9. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.” 12. With due regard to the aforesaid decision, it is clear that the evidence of a witness may depend on the appreciation to accept same wholly or partly. At times it may be wholly unreliable but there is no bar for the Court to accept the reliable part of the evidence of witness to reach conclusion. It is also reported in Narender Kumar v. State, (2012) 7 SCC 171 where Their Lordships have observed at paragraphs-24 and 25 in the following manner: “24. In Raju v. State of M.P., AIR 2009 SC 858 this Court held: (SCC p.141, para 10) “10. … that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary.” The Court however, further observed (Raju case AIR 2009 SC 858 , SCC p.141, para 11) “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication….. there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 25. In Tameezuddin v. State (NCT of Delhi), (2009) 15 SCC 566 , this Court held as under: (SCC p.568, para 9) “9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” 13. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” 13. With due regard to the aforesaid decisions, it is clear that in the case of rape, statement of prosecutrix should be weighed more because she suffers not only from mental trauma but also physical injury. So, the statement of the prosecutrix should be viewed in its totality and if same is found suffering from serious infirmities or inconsistencies with other material or found to have improved on material points, reliance upon her sole testimony is unwarranted as it requires corroboration. At the same time, there is no bar to base conviction on the sole unimpeachable statement of the prosecutrix. Keeping in mind of the decisions, let the statement of the prosecutrix who is 15 years old be scrutinized. 14. It is revealed from the statement of P.W.1, who is the victim girl that after departure of her parents for work at 9.00 A.M. the appellant entered their house and after observing about absent of her parents, the appellant put her on the ground by removing her dress materials and kissed her and then committed rape upon her and left the house. After hearing her cry, two women came in and she narrated about the occurrence to them. After arrival of her mother, she also narrated the occurrence to her mother. Her father also came and after hearing about the incident from the mother of the victim, he lodged F.I.R. in the Police Station. In examination-in-chief she has not stated to have resisted when the appellant removed her dress and kissed her. Of course, it depends on the reaction of the individual but when her wearing apparels are touched by another person, a reaction from the side of the girl should be visualized. In cross-examination she has improved by saying that she has bitten the accused on his hand. In further cross-examination denying defence she stated to have stated before the Police that accused after removing her panty committed rape. Of course, such statement was confronted by the prosecution to I.O. who denied about such statement of P.W.1 before him. In cross-examination she has improved by saying that she has bitten the accused on his hand. In further cross-examination denying defence she stated to have stated before the Police that accused after removing her panty committed rape. Of course, such statement was confronted by the prosecution to I.O. who denied about such statement of P.W.1 before him. It is well settled that every omission does not amount to contradiction and only material omission merits consideration. When she has stated about the removal of dress by the appellant, whether removal specifically of panty from her person is not a material omission for which such omission is omitted from consideration. 15. At the same time the statement of P.W.1 does not find corroboration from the evidence of P.Ws.4 and 5 as these two women hearing hullah went to the house of P.W.1 and made query about the matter but P.W.1 remained silent. So, the statement of P.W.1 that she narrated the incident to these two women remained uncorroborated. Apart from this, it is available from her cross-examination that the appellant has got visiting term to their house prior to the occurrence. Since the appellant has got acquaintance to their house, the statement of P.W.1 again to be tested with pinch of salt. So, the statement of P.W.1 instead of being relied on solely has to be appreciated after seeking corroboration from other evidence. At para-5 of the cross-examination of P.W.2, she clearly revealed that she has not marked any injury on the person of her daughter. P.W.3, being the father of victim is also post-occurrence witness and informant in this case. He admitted in cross-examination that he has never been to the house of the appellant to question him about the incident. When serious occurrence has taken place, it was his duty to search for the appellant. 16. The evidence of P.W.4 revealed that she has seen appellant coming out of the house of the informant at 9.00 A.M. and suspecting his presence inside the house of P.W.3 as the victim alone in her house, she went to her house and found P.W.1 was crying. During cross-examination denying the suggestion of defence he stated to have stated before the Police that she found the appellant was coming out of the house of the informant, she suspected since Sasmita was alone and her parents had gone to their respective work. During cross-examination denying the suggestion of defence he stated to have stated before the Police that she found the appellant was coming out of the house of the informant, she suspected since Sasmita was alone and her parents had gone to their respective work. P.W.11 is the I.O. who denied about the statement of P.W.4 before him. So, she has contradicted from her earlier statement by not mentioning that she suspected while appellant coming out of P.W.1’s house as victim was alone in her house. So, the fact of suspicion in her mind was not revealed while examined before Police. But the fact remains that she had seen the appellant coming out of the house of victim. 17. P.W.5 revealed that on the date of occurrence at 9.00 A.M. she had witnessed the appellant coming out of the house of victim. She also suspected the visit of the appellant to the house of victim. So, she visited to the house of the victim and found victim crying in naked condition but did not reply to her query. In cross-examination denying the suggestion of defence, she stated to have mentioned before P.W.11 that while she went to the house of victim found her in naked condition whereas P.W.11, who is the I.O. denied about such statement before him. So, after scrutiny the statement of P.W.5 is found to have been exaggerated by adding that she has seen the victim crying in a naked condition. But all the same, her evidence remains undisturbed to the fact that she had seen the appellant coming out of the house of victim. 18. P.W.6, who is the doctor stated to have examined the victim and his evidence is as follows: “(I) There was no bleeding injury suggesting forcible sexual intercourse. Clothing and belonging had no physical clue for alleged sexual offence. There was no sign and symptom of recent sexual intercourse on genitalia. There was no spermatozoa in vaginal swab and Blood Group was AB+ and the age of the victim is within 14 to 16 years. This is my report marked as Ext.5 wherein this is my signature marked Ext.5/1. (II) On examination the mental health was normal, body built was average teeth 7/7 and 7/7 weight 35 kg. There was no external injury on body. No tear and no staining on cloth, bath and toilet once. This is my report marked as Ext.5 wherein this is my signature marked Ext.5/1. (II) On examination the mental health was normal, body built was average teeth 7/7 and 7/7 weight 35 kg. There was no external injury on body. No tear and no staining on cloth, bath and toilet once. On examination of female genitalia her appearance was normal, there was no stain no discharge and no bleeding, there was no staining and matting of pubic hair, Labia Majora and manora are normal, posterior cummissore forchette and vestibule normal without tear. Hymen opening present without tear and there was no fresh bleeding. Carunculae hymenalis absent. Vagina admits one finger tight. Vaginal canal was not clearly visible and cervix not seen. In vaginal swab report spermatozoa not seen epithelial cell present. Lower end of radius ulna and of fumerous and eliac crest have not fused. Head of radius fused.” 19. From the aforesaid evidence of doctor, P.W.6 coupled with the report vide Ext.5, it is surprised to find out that he has not marked a single injury on the external body and the genitalia of the victim. He clearly denied about sign and symptom of recent sexual intercourse with the victim. It will not be out of place to mention that the victim was examined by the doctor on the next date of occurrence. Even no dead spermatozoa was found in the vaginal swab of the victim. So, doctor has absolutely contradicted the evidence of P.W.1 as to forcible sexual intercourse with her. There is nothing found from the evidence of P.W.6 to discredit his testimony. Of course, in absence of doctor’s evidence in the event of rape the statement of prosecutrix can be relied on. But in view of the aforesaid contradiction with regard to the material particulars as observed above by the post-occurrence witness or part-occurrence witness, the evidence of doctor is to be taken into consideration to find out support to the statement of the victim. 20. It is worthwhile to visit the evidence of P.W.8, who is a doctor stated to have examined the appellant. According to him, he had not seen any external injury although he examined the appellant on the next date of occurrence. He has proved the report vide Ext.6. 20. It is worthwhile to visit the evidence of P.W.8, who is a doctor stated to have examined the appellant. According to him, he had not seen any external injury although he examined the appellant on the next date of occurrence. He has proved the report vide Ext.6. When P.W.1 has stated that she had bitten on the hand of the appellant during occurrence, the absence of any injury on the person of the appellant as per the evidence of P.W.8 who is another doctor leaves much room of doubt over the statement of victim as to sexual intercourse by appellant with her. 21. The evidence of P.Ws. including I.O. reveal that the wearing apparels of the victim and appellant have been seized but they do not contain any foreign material. Although the prosecution has sent the seized property to the State Forensic Laboratory but no chemical examination report has been proved by the I.O. So, neither the wearing apparel of the prosecutrix nor the appellant have given a clue to lend support to the statement of P.W.1 as to sexual intercourse by the appellant with the victim. 22. The statement of P.Ws.1, 2, 3 and P.Ws.8 and 11 reveal that the victim girl is 15 years who is minor and her consent to sexual intercourse is immaterial. But when there is no sign and symptom of sexual intercourse and other infirmities are noticed in terms of the discussion made herein above, the statement of P.W.1 cannot be accepted as gospel truth to prove the rape committed by the present appellant with her. 23. Prosecution has tried to place a story of village meeting resulting the delay in lodging the F.I.R. Of course, the statement of P.Ws.2, 3 and 9 reveal that there was a meeting with regard to the occurrence but it does not develop the case of the prosecution so far rape is concerned. 24. Even if the case of the prosecution with regard to rape is not proved but the statement of P.W.1 remained consistent and cogent as it is revealed by her in cross-examination that the appellant has kissed her on her cheek after entering the house. The statement of P.Ws.4 and 5 cannot be lost sight of with regard to the departure of the appellant from the house of the victim at the relevant time on the date of occurrence. The statement of P.Ws.4 and 5 cannot be lost sight of with regard to the departure of the appellant from the house of the victim at the relevant time on the date of occurrence. When the prosecution has evidence about visit of appellant to the house of the victim and statement of victim that the appellant had also kissed her, in such circumstance, the case of the prosecution cannot be disbelieved in toto. So, prosecution has proved by clear and cogent evidence that the appellant after entering into the house of victim has kissed her. But rest of the case of prosecution about rape has been falsified. Not only this but also the appellant while examined under Section 313 of Cr.P.C. admitted that on the relevant date and time he had been to the house of victim as he was called by the parents of the victim for work but he returned as there was nobody in that house. 25. The defence has not led any evidence to prove the innocence but it is revealed from the cross-examination of P.W.2 that the appellant is a member of the Nodal Committee of Swarnamani U.P. School and he had filed a case against the Headmaster of the Nodal School prior to the incident. But in further cross-examination, the suggestion of defence that at the instance of the Headmaster of the School she deposed falsehood is denied. At the same time, appellant in his statement made under Section 313 of the Cr. P.C. has stated that due to filing of case by the appellant, the mother of the victim at the instance of the Headmaster has filed the false case. Assuming for the argument sake that the case has been filed falsely but then why he had gone to the house of the victim at the relevant time for any work to be ordered by the parents. The plea of appellant is thus inconsistent to prove inimical term with victim’s parents. So, the appellant has failed to prove his innocence by suggesting a case of enmity with the Headmaster of the School where the mother of the victim is working as cook. 26. The plea of appellant is thus inconsistent to prove inimical term with victim’s parents. So, the appellant has failed to prove his innocence by suggesting a case of enmity with the Headmaster of the School where the mother of the victim is working as cook. 26. In terms of the above discussion, after analyzing the evidence of the witnesses and taking the care of the defence, the Court is of the view that the prosecution has failed to establish the case under Section 450/376 of the I.P.C. against the appellant but outraging the modesty of P.W.1 after making entry to the house of the victim cannot be lost sight of. Learned trial court has only relied on the evidence of the victim without discussing the evidence of doctor and other witnesses with proper perspective. So, the finding of the learned trial court is not agreed to so far the case of rape by the appellant with the victim after making house trespass. 27. It is needless to say that the statement of P.Ws.1, 4 and 5 proved that after the occurrence the victim was found crying which must be due to kissing by the appellant to the victim. So, the ingredients of Section 354 of the I.P.C. are well proved by the prosecution and since offence 354 of the I.P.C. is punishable with imprisonment, the house trespass to commit such offence is also well proved against the prosecution. Hence, the prosecution is found to have proved the offence under Sections 451/354 of the I.P.C. instead of 450/376 of the I.P.C. 28. In terms of the above discussion, the Court is of the view that the conviction and sentence under Sections 450/376 I.P.C. are set aside whereas the case of the prosecution being well proved under Sections 451/354 of the I.P.C. against the appellant, he is found guilty thereunder. In terms of the above discussion, the Court is of the view that the conviction and sentence under Sections 450/376 I.P.C. are set aside whereas the case of the prosecution being well proved under Sections 451/354 of the I.P.C. against the appellant, he is found guilty thereunder. On the other hand, the appellant is acquitted of the offence under Sections 450/376 of the I.P.C. and convicted under Sections 451/354 of the I.P.C. Thus, this Court sentence the appellant to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-in default to undergo further rigorous imprisonment for a period of six months for committing the offence under Section 354 of the I.P.C. and also the appellant is directed to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/-in default to undergo further rigorous imprisonment for a period of one month for the offence punishable under Section 451 of I.P.C. and both the sentences shall run concurrently. It appears that the appellant is in custody since 2012. As the appellant has suffered the sentence, he be set at liberty forthwith, if not detained otherwise. The JCRLA is disposed of accordingly. The L.C.R. be returned back immediately.