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2017 DIGILAW 1199 (ORI)

Bhisma Charan Pradhan v. State of Orissa

2017-10-26

S.K.SAHOO

body2017
JUDGMENT S.K. SAHOO, J. - The appellant Bhisma Charan Pradhan faced trial in the Court of learned Adhoc Addl. Sessions Judge, Fast Track Court No.1, Phulbani in Sessions Trial Case No.107/40 of 2009 for offences punishable under Sections 376 (2) (f) and 506 of the Indian Penal Code on the accusation that on 07.03.2009 in between 10 a.m. to 11.00 p.m., he committed rape on the victim girl who was under the age of 12 years in his betel shop situated at Chanchedi Chhak under Raikia Police Station in the district of Kandhamal and also committed criminal intimidation by threatening the victim with injury to her person with intent to cause alarm to her. The learned Trial Court vide impugned judgment and order dated 31.10.2009 though acquitted the appellant of the charge under Section 506 of the Indian Penal Code but found him guilty under Section 376 (1) of the Indian Penal Code and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo further rigorous imprisonment for six months more 2. The prosecution case, as per the first information lodged by the victim is that on 7th March, 2009 at about 10.00 a.m. while the victim (P.W.2) had been to the shop of the appellant to purchase soap, nobody was present nearby. The appellant finding the victim alone lifted her inside his cabin by putting his hand on her mouth and threatened her with dire consequence and forcibly committed rape on the victim and at about 11 p.m. left her on the road. The victim went to the house of Bina Digal (P.W.5) who was residing nearer to the cabin of the appellant who left the victim in her house. Out of fear, initially the victim did not disclose about the occurrence to her family members but when she felt severe pain, she disclosed about the occurrence to her parents on 08.03.2009 and accordingly the F.I.R. was lodged. On the basis of such first information report, P.W. 8 Mamata Pati who was the officer in charge of Raikia Police Station, registered Raikia P.S. Case No.07 of 2009 on 08.03.2009 under Sections 376/506 of the Indian Penal Code and took up investigation of the case. On the basis of such first information report, P.W. 8 Mamata Pati who was the officer in charge of Raikia Police Station, registered Raikia P.S. Case No.07 of 2009 on 08.03.2009 under Sections 376/506 of the Indian Penal Code and took up investigation of the case. During course of investigation, she examined the victim, seized her wearing apparels under seizure list Ext.1/3 and sent the victim for medical examination to C.H.C., Raikia. P.W. 8 then visited the spot and prepared the spot map, arrested the appellant and seized his wearing apparels under seizure list Ext.4/2 and he was also sent for Medical examination to C.H.C., Raikia. On the prayer of the I.O., the 164 Cr.P.C. statement of the victim was recorded. On the requisition of the I.O., the Headmaster of Pajimaha U.P. School where the victim was prosecuting her studies supplied the Xerox copy of the admission register wherein the date of birth of the victim was mentioned as 07.07.1997. On the prayer of the I.O., the wearing apparels of the appellant as well as that of the victim were sent for chemical examination to S.F.S.L., Rasulgarh, Bhubaneswar. P.W. 8 made a query to the Medical Officer regarding the injury and other particulars of the appellant and received the report. The victim was sent to the F.M.T. Department of Medical College, Berhampur for her further examination. The biological samples of the appellant and the victim were also collected and seized and those were also sent to S.F.S.L., Rasulgarh, Bhubaneswar. P.W. 8 received the chemical report and on completion of investigation, charge sheet was submitted against the appellant on 06.09.2009 under Sections 376 (2) (f)/506 of the Indian Penal Code. 3. After submission of charge sheet, the case of the appellant was committed to the Court of Session after observing due committal procedure and the case was made over to the learned Trial Court for disposal in accordance with law where the learned Trial Judge charged the appellant under Sections 376 (2) (f) and 506 of the Indian Penal Code on 27.08.2009 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 is one of denial. 5. During course of trial, the prosecution examined eleven witnesses. 4. The defence plea of the appellant is one of denial. 5. During course of trial, the prosecution examined eleven witnesses. P.W. 1 Khageswar Digal is the father of the victim and he stated about the disclosure made by the victim before her mother regarding the occurrence. He accompanied the victim to the Police Station and he is a witness to the seizure of wearing apparels of the victim. ‘ P.W. 2 is the victim and she narrated the incident in detail. P.W. 3 Dr. Subash Ch. Mandal was the Medical Officer of Raikia C.H.C. who on Police requisition examined the victim on 08.03.2009 and proved his report Ext. 3/1. P.W. 4 Menaka Digal is the mother of the victim and she stated that on the next date of occurrence, she noticed bleeding from the private parts of the victim and the victim disclosed before her about the incident. She also stated about the seizure of the wearing apparels of the victim. The evidence of P.W. 5 Bina Kumari Digal, P.W. 6 Lal Digal and P.W. 7 Damanika Digal are not relevant for the prosecution case. P.W. 8 Mamata Pati was in charge of Raikia Police Station as the Inspector in charge was on leave and she is the investigating officer of the case. P.W. 9 Dr.Sudeepa Das was the Asst. Professor, Department of F.M.T., Medical College, Berhampur who examined the victim on 24.02.2009 and proved his report Ext. 20. P.W. 10 Dr. Pratap Kumar Singh collected specimen sample of blood, seminal fluid, pubic hair and saliva of the appellant and handed over the same in sealed packet to the escorting constable. P.W. 11 Madan Digal who was the Headmaster of Pajimaha U.P. School who proved the admission register of the school wherein the date of birth of the victim was mentioned as 07.07.1997. The prosecution exhibited twenty three documents. Exts. 1, 4, 15 and 16 are the seizure lists, Ext.2/1 is the F.I.R., Ext.3/1 is the Medical examination report of the victim, Exts. 5, 8 and 14 are the medical requisitions, Ext. 6 is the command certificate, Ext. 7 is the spot map, Ext. 9 is the statement of the victim recorded under Section 164 Cr.P.C., Ext. 10 is the prayer made by I.O. for recording of statement, Ext. 5, 8 and 14 are the medical requisitions, Ext. 6 is the command certificate, Ext. 7 is the spot map, Ext. 9 is the statement of the victim recorded under Section 164 Cr.P.C., Ext. 10 is the prayer made by I.O. for recording of statement, Ext. 11 is the prayer made by the I.O. to send the wearing apparels of victim and appellant for chemical examination, Ext. 12 is the forwarding report, Ext 13 is the query made by the I.O. to the Medical Officer, Ext. 17 is the prayer by the I.O. to the Court, Ext. 18 is the forwarding letter, Ext. 19 is the chemical examination report, Exts. 20 is the medical examination report of the victim, Ext. 21 is the report of the Jail doctor regarding collection of sample of blood, seminal fluid etc. of the appellant, Ext. 22 is the medical examination report of the appellant and Ext. 23 is the relevant page of the school admission register. The prosecution also proved some materials objects. M.O.I. is the wearing frock of the victim, M.O. II is the underwear of the victim, M.O. III is the towel of the victim, M.O.IV. is the wearing lungi of the appellant and M.O.V is the wearing banian. 6. The learned Trial Court after assessing the evidence on record has been pleased to hold that at the time of occurrence, the victim was more than twelve years of age and her statement was recorded in the Court under Section 164 Cr.P.C. and she narrated the same incident before the Court which can be taken as a corroborative piece of evidence to her statement given in Court. 7. Mr. Anup Kumar Jena, learned Counsel appearing for the appellant while challenging the impugned judgment and order of conviction contended that the finding of the learned Trial Court regarding the age of the victim is not acceptable and the evidence of the victim is not clinching and runs contrary to the medical evidence which was given by P.W. 3. He further submitted that the wearing apparels of the victim were seized and it was sent for chemical analysis but stains of blood and semen could not be detected. He further submitted that the wearing apparels of the victim were seized and it was sent for chemical analysis but stains of blood and semen could not be detected. It is further contended that the victim did not disclose about the incident at the first instance before her mother when she came back to her house in the night after the occurrence and it is only when there was bleeding from her private parts that she stated before her mother about forcible sexual intercourse and therefore, the appellant should be given benefit of doubt. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand contended that the prosecution has proved that the victim was twelve years of age at the time of occurrence and she has narrated the incident in detail and nothing has been brought out in the cross examination so as to discard her evidence. It is further submitted that though P.W. 3 had not noticed any injury on the private parts of the victim but on question put by the Court, he has stated that he examined the victim in the evening and as he did not forcefully examine the internal part of the vagina and the hole of the hymen as she was a minor girl, there was difference between his report and the report of the FMT. He further submitted that the doctor (P.W. 9) who examined the victim found old and healed tear present at 7 O’ clock position of the hymen. He further submitted that the possibility of the victim not disclosing about the occurrence at the first instance before her mother out of fear cannot be ruled out and there is no reason as to why the victim girl would falsely implicate the appellant. It is contended that there is no illegality or infirmity in the impugned judgment and therefore, the appeal should be dismissed. 8. Adverting to the contentions of the learned Counsels regarding the age of the victim, it appears that the occurrence in question took place on 07.03.2009. The Headmaster of the School has been examined as P.W. 11 and he produced the admission register of Pajimaha U.P. School which indicated that the victim was a student of Class-VI at the time of her admission and her date of birth was 7.07. 1997. Therefore, as on date of occurrence, the victim was twelve years of age. The Headmaster of the School has been examined as P.W. 11 and he produced the admission register of Pajimaha U.P. School which indicated that the victim was a student of Class-VI at the time of her admission and her date of birth was 7.07. 1997. Therefore, as on date of occurrence, the victim was twelve years of age. The victim has been examined in Court on 05.10.2009 and she has stated her age to be twelve years. In her examination-in-chief, she has stated that at the time of occurrence, she was reading in Class-VII and she was aged about twelve years. The father of the victim girl has been examined as P.W. 1 and he has stated that the time of occurrence, the victim was reading in Class-VII and she was aged about twelve years. The mother of the victim has been examined as P.W. 4 and she has stated that her daughter was reading at Pajimaha School in Class-VII at the time of occurrence. Nothing has been elicited in the examination of the victim or her parents to disbelieve the age of the victim at the time of occurrence. The doctor (P.W.9) who examined the victim on 20.04.2009 stated that after ossification test of different parts of the body and also the dental report of the victim, he opined the age of the victim to be twelve years +/- one year. Therefore, not only from the ocular evidence but also from the medical evidence as well as from the school admission register, it is proved that the victim was twelve years of age at the time of occurrence. Therefore, the finding of the learned trial Court on that score is quite justified and accordingly, I concur with such finding. Coming to the accusation of offence under Section 376 of the Indian Penal Code, it appears from since the victim was a child, the learned Trial Court put some preliminary questions to test her intelligence and found that she was competent to give her evidence. The victim stated that when she went to purchase one soap from the shop of the appellant, she was called by the appellant to come inside the cabin and when she refused, the appellant forcibly pulled her inside the cabin and then when she tried to raise her voice, her mouth was gagged and she was threatened with dire consequence. The victim stated that when she went to purchase one soap from the shop of the appellant, she was called by the appellant to come inside the cabin and when she refused, the appellant forcibly pulled her inside the cabin and then when she tried to raise her voice, her mouth was gagged and she was threatened with dire consequence. The victim has further stated that the appellant forcibly torn her wearing frock and removed her underwear (chadi) and then committed sexual intercourse thrice at different intervals. The victim stated that when she was left in her house by P.W. 5, she did not narrate about the incident and went to sleep by crying and on the next day, while urinating, there was bleeding from her private parts and on a query by her mother, she narrated the entire incident. The victim has stated that when the appellant committed forcible intercourse with her, she was feeling a lot of pain but could not raise her voice as he gagged her mouth. She further stated in her cross examination that at the time of occurrence, she was wearing one frock and one underwear (chadi) and a towel and at the time of commission of sexual intercourse by the appellant, there was bleeding from her private parts and she further stated that the appellant was wearing one blue and black colour lungi at the time of occurrence. P.W. 4, the mother of the victim has stated that when there was bleeding at the time of urinating and she asked the victim about such bleeding, the victim disclosed about the occurrence before her. P:.W. 4 further stated that the wearing apparels of the victim were partially torn and she stated that when she went to search for her daughter, she went near the shop of the appellant and the appellant was inside the cabin by closing the shop and when he asked about the victim, he told that he had not seen her. Therefore, the evidence of the victim gets corroboration from the evidence of P.W. 4 and her conduct in disclosing about the occurrence before P.W. 4 is admissible as res geste under Section 6 of the Evidence Act. Therefore, the evidence of the victim gets corroboration from the evidence of P.W. 4 and her conduct in disclosing about the occurrence before P.W. 4 is admissible as res geste under Section 6 of the Evidence Act. No doubt the mother has stated that at the first instance, the victim did not disclose about the occurrence but it cannot be ruled out that out of fear, the victim who was just aged about twelve years could not gather enough courage to disclose about the occurrence before her mother and on the next day morning when there was bleeding from her private parts and the mother noticed the same and challenged the victim, she disclosed about the incident. It cannot be lost sight of the fact that the victim had already undergone a trauma when the appellant raped her on a number of occasions and also threatened her and she was detained for about twelve hours inside the cabin. In such a state of affairs, it was but natural on the part of the victim to come to her composure perfectly and for that purpose, she took time and ultimately disclosed about the occurrence before her mother. Nothing has been elicited in the evidence of the victim to create any doubt. Therefore, the evidence of the victim appears to be clear, cogent and trustworthy. The evidence of the doctor (P.W.3) no doubt indicates that he did not notice any mark of injury on the private parts of the victim and her hymen was intact and labia minora was normal and there was a small pin head hole at the centre of hymen and no tear was seen so also there was no fresh bleeding injury even though the victim was examined on the next date of the occurrence but on a question put by the Court, the doctor has clearly stated that since it was evening hours and the victim was a minor girl, he did not forcibly examine the internal part of the vagina and the hole of the hymen. It is unfortunate that without examining the private parts properly in a case of this nature, the doctor submitted a report in a casual manner. It is unfortunate that without examining the private parts properly in a case of this nature, the doctor submitted a report in a casual manner. In a criminal trial particularly in a case of rape, the doctor’s evidence is given much importance and therefore, it is the duty of a doctor to examine the victim as well as the accused carefully and submit the report indicating all the details as required at an earliest. The contents of the medical examination report given by P.W. 3 obviously created doubt in the veracity of the statement of the victim but since the doctor’s evidence cannot be accepted because he has not minutely examined the victim, on the basis of such report, the evidence of the victim ( P.W.2) which is otherwise reliable and trustworthy cannot be discarded. P.W.9, the Asst. Professor, Department of FMT, Medical College, Berhampur examined the victim on 20.04.2009 which is about a month and half of the occurrence and he stated that he found one old and healed tear present at 7 O’ clock of the hymen. Therefore, on the available materials on record, I am of the view that not only the prosecution has successfully proved that at the time of commission of the offence, the victim was twelve years of age but by way of unimpeachable evidence of the victim, it has been clearly established beyond all reasonable doubt that the appellant committed rape on her inside his cabin. The learned Trial Court was justified in convicting the appellant under Section 376 (1) of the Indian Penal Code. The substantive sentence which was imposed on the appellant cannot be said to be excessive, in fact that was the minimum sentence of imprisonment prescribed for such offence and there is no adequate and special reason for reducing such sentence. 9. In view of the above analysis, I am of the view that the impugned judgment and order of conviction under Section 376 (1) of the Indian Penal Code and sentence passed thereunder is hereby confirmed and the appeal stands dismissed. 10. 9. In view of the above analysis, I am of the view that the impugned judgment and order of conviction under Section 376 (1) of the Indian Penal Code and sentence passed thereunder is hereby confirmed and the appeal stands dismissed. 10. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Phulbani to examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation under the Orissa Victim Compensation Scheme, 2012. Let a copy of the order be sent to the District Legal Services Authority, Phulbani for compliance. Lower Court’s record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action. Appeal dismissed.