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2017 DIGILAW 1361 (ORI)

Fagala Naik v. State of Orissa

2017-11-27

D.P.CHOUDHURY

body2017
JUDGMENT : Dr.D.P.Choudhury, J. This captioned Jail Criminal Appeal is filed by the appellant from Jail against the judgment of conviction and sentence passed under Section 376 of the Indian Penal Code (hereinafter called as “I.P.C.”) by the learned Additional Sessions Judge, Rairangpur in Sessions Trial No.08 of 2014 sentencing the appellant to undergo R.I. for seven years and to pay fine of Rs.10,000/-in default to undergo further R.I. for one year for the offence under Section 376 of IPC. 2. The conspectus of the case of the prosecution, in short, is that on 30.11.2013, while the victim, who was 80 years old, was sleeping alone in her house, as an ill luck would have it, the appellant knocked the door of the house of the victim in the midnight. On being opened by the victim, the appellant came in and asked for match box and Gutka. Before the victim responded to his request, the appellant gagged her mouth and forcibly made sexual intercourse on her by putting her on the cot. The victim tried to raise hullah but the appellant over powered her. After the sexual assault, the appellant fled away. 3. It is the further case of the prosecution that on the next morning, the victim went to her daughter’s house, which is only at a few distance from her house and narrated the incident to her by crying. Due to sexual assault, the victim was sustained injury on her private part and her wearing apparels were stained with blood and semen. Thereafter, she along with her daughter and son-in-law went to Bisoi Police Station where FIR was lodged. During investigation, the victim was examined by the doctor on police requisition. The blood stained and semen stained wearing apparels of the victim were seized by the police. Police also seized the wearing apparels of the appellant. All the seized properties were sent for chemical examination and chemical examination report has been submitted. After completion of investigation, charge sheet has been submitted. 4. The plea of the appellant, as revealed from his examination recorded under section 313 of Cr.P.C. and suggestions made to the prosecution witnesses during cross-examination by defence, is complete denial to the charge levelled against him and he pleaded that he has been falsely implicated in this case due to dispute with victim’s son-in-law. On the other hand, he pleaded innocence. 5. On the other hand, he pleaded innocence. 5. The prosecution, in order to prove its case, has examined as many as 14 witnesses out of which P.W.1 is the daughter of the victim, P.W.2 is the son-in-law of the victim, P.W.3 is the victim, P.Ws.4, 5, and 7 are post occurrence witnesses, P.W.6 is the scribe to the FIR, P.Ws.8 and 10 are doctors, P.Ws.9, 11, 12 and 13 are seizure witnesses and P.W.14 is the Investigating Officer. The defence examined none. 6. Learned Trial Court, after analyzing the evidence of each witnesses, found the appellant guilty under Section 376 of IPC and sentenced him to undergo R.I. for seven years and pay a fine of Rs.10,000/-in default to further undergo R.I. for one year for the said offence. 7. Ms.Panda, learned counsel for the accused-appellant strenuously urged that the appellant has been falsely implicated in this case. Learned Trial Court has failed to appreciate the evidence available on record properly. According to her, the victim admittedly has low vision and as per the version of her daughter, she has lodged the FIR against the present appellant. 8. Ms.Panda, learned counsel for the appellant further submits that learned Trial Court has committed illegality by not evaluating the evidence properly with regard to the genital injury the victim sustained. Since there is no external injury, the story of the prosecution should not be assessed against the appellant. Learned Trial Court has failed to appreciate the conduct of the victim because at a so old age, being a widow, as she was living in her house alone. Had there been a protest to the act of the appellant, there would have been injury like nail mark or any other kind of injury surfacing on the body of the victim or appellant. Apart from this, she is married and quite old age, no question of sexual intercourse can be probable at the instance of the appellant. 9. Ms.Panda, learned counsel for the appellant, therefore, submitted that the judgment of conviction and sentence passed by the Trial Court, being bad in law, should be set aside. 10. Mr.Mohanty, learned Additional Standing Counsel submitted that the evidence of victim is quite convincing as to the occurrence of sexual assault. He submitted that in the case of rape, the statement of the victim should be taken as a gospel truth to base conviction. 10. Mr.Mohanty, learned Additional Standing Counsel submitted that the evidence of victim is quite convincing as to the occurrence of sexual assault. He submitted that in the case of rape, the statement of the victim should be taken as a gospel truth to base conviction. In the instant case, there is absolute corroboration of the medical evidence adduced by the doctor so far as rape is concerned. Mr.Mohanty, learned Additional Standing Counsel further submitted that even if due to old age, the victim has got low vision but the fact remains that this victim has got old acquaintance with the appellant for the reasons that the appellant was staying in the house of P.W.3 one year before the occurrence. So, the case is not based on evidence of victim, who had no prior acquaintance with the appellant. The statement of daughter and son-in-law cannot be disbelieved even if they are relative of victim because it is settled law that the statement of the relative of the victim can also be considered subject to condition that they are cogent, clear and not improbable. Thus, learned Additional Standing Counsel submitted that the judgment of conviction and sentence passed by the learned Trial Court should be confirmed and prayed to dismiss the Jail Criminal Appeal. 12. DISCUSSIONS Before going to the facts of the case, let the law on the subject be described. In this regard, Hon’ble Supreme Court, in the case of State of Maharashtra –V-Chandraprakash Kewalchand Jain; (1990) SCC (Crl) 210, at paragraph-16 of the judgment, have held in the following manner:- "16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circum-stances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence...............". With due regard to the aforesaid decision, it is clear that the statement of the prosecutrix, in a case of rape, should be relied upon solely to base conviction if her evidence is cogent, clear and consistent and above the reproach. Corroboration in such cases is hardly sought for because the prosecutrix stand on a place of injured in mind and body. Apart from this, a woman will never speak falsehood against a man unless she is very assaulted sexually. 13. The statement of the victim (P.W.3) clearly shows that while she was sleeping alone in her house, at midnight of the occurrence day, the appellant called her to open the door. Soon after she opened the door, the appellant asked for the match box and gutka. The appellant immediately caught hold the victim and committed rape on her when she tried to raise hullah, the appellant gagged her mouth by one of his hand. Not only this but also he threatened to kill her. After commission of rape, he fled away. Soon after she opened the door, the appellant asked for the match box and gutka. The appellant immediately caught hold the victim and committed rape on her when she tried to raise hullah, the appellant gagged her mouth by one of his hand. Not only this but also he threatened to kill her. After commission of rape, he fled away. On the next morning, she went to her daughter’s house and narrated the incident after which she went to police station with her daughter and son-in-law. According to her instruction, P.W.6 scribed the FIR and after the same was readover and explained to her, she put her LTI on the same. P.W.6 also corroborated this statement of P.W.3 and proved the FIR vide Ext.2. 14. P.W.3 has also categorically stated in her examination in chief that due the sexual assault at the instance of the appellant, she had sustained injury on her private part and her wearing saree and saya were stained with blood. From her cross-examination, it is revealed that the appellant was staying in her house one year before the occurrence and he used to address her as his mother. She admitted that the appellant had not shown any disrespect or misbehaviour at any time while staying there. Thus, nothing is elicited from her cross-examination to show that the victim was in inimical term with the appellant to lay a false claim or foisted him in this case. 15. In further cross-examination, which is more serious in nature, it is revealed that the appellant had not made her complete naked but committed rape on her on cot. She also explained that she could not bite him or push him or nail bite as the appellant has over powered her. She clearly stated that due to forcible sexual intercourse, she had not received any injury on other parts of her body except her private part where she sustained injury. Again, she has also admitted in her cross-examination that the appellant committed sexual assault for half an hour and has discharged semen on her vagina. The semen of the accused has also spread on the wearing apparels of the victim. The type of questions put by the defence to the victim during her cross-examination to elicit said answers shocked this Court because the defence has not obeyed the principles of cross-examination to the victim in a rape case. The semen of the accused has also spread on the wearing apparels of the victim. The type of questions put by the defence to the victim during her cross-examination to elicit said answers shocked this Court because the defence has not obeyed the principles of cross-examination to the victim in a rape case. It is trite in law to observe that these scandalous questions cannot be asked to the prosecutrix in case of rape. Moreover, any question pertaining to the dignity of the woman should always be discouraged. Therefore, the Legislature have cautioned in a case of rape that any questions put by the defence relating to the occurrence of rape should be put through the Court to the victim. The right of a woman in case of rape must not be vandalized but must be maintained with proper dignified way. Learned Trial Court also should bear in mind that in case of rape, the Court is not only to dispense with justice but also being custodian of the rights of the victim woman, has to be circumstanced that her dignity is not victimized in the alter as because human right to be protected in all respect. Be that as it may, in spite of strenuous cross-examination to the victim, who is an old woman of 80 years, has not failed to adduce any evidence which requires further assurance or corroboration. 16. In further cross-examination, she admitted that in the night she has low vision. Even if she has got low vision, the prior acquaintance of the appellant with the victim has been well established in her cross-examination that the appellant was living in the house of the victim one year prior to the occurrence and she used to call her as his mother. Due to close acquaintance, the question of low vision of victim does not deteriorate her evidence in any manner. There are suggestions from the side of the defence that she has filed a false case because of the enmity with her son-in-law. Such plea was never taken in the statement of the appellant recorded under Section 313 of Cr.P.C. However, even if assuming for the sake of argument that her son-in-law has got enmity with the appellant, it hardly matters for her to depose against the appellant unless the occurrence took place. 17. Such plea was never taken in the statement of the appellant recorded under Section 313 of Cr.P.C. However, even if assuming for the sake of argument that her son-in-law has got enmity with the appellant, it hardly matters for her to depose against the appellant unless the occurrence took place. 17. The evidence of P.W.3 is thus above the reproach, inspiring, consistent and cogent to show that the appellant, after entering into the house of the victim, has committed sexual intercourse with her forcibly against her consent. Apart from this, due to such sexual assault, she has sustained injury on her private part. When an old woman of 80 years is over powered by a young man, it is hard to find out any external injury on her body. Therefore, there is no reason to reject the statement of the victim in any manner. 18. The statements of P.Ws.1 and 2 clearly show that after the occurrence, the victim had gone to their house and narrated the occurrence. Not only this but also the statement of P.W.1 clearly shows that they had seen the blood stain on the wearing saree of the victim. P.W.2 has also clearly denied about any quarrel between the appellant and victim. So, they lend sufficient corroboration to the evidence of P.W.3 about the sexual assault. It is well settled in law that the evidence of the relative cannot be discarded unless there is compelling circumstances to disbelieve them. The evidence of relative must be viewed with normal assessment of the evidence as assessed for other witnesses. In spite of their relationship, the Court do not find any material to reject the evidence of P.Ws.1 and 2. So, their evidence also lends corroboration to the evidence of P.W.3 about commission of rape. 19. The statement of P.W.8, who has examined the victim clearly shows that on 02.12.2013, she examined the victim and found the following injuries: “(i) On genital examination, there was tear of size of 2mm X 1mm X 1mm over periurethral region over right side of labia minora. The injures was within 24 to 36 hours from the time of examination; (ii) There was tear of size about 3mm X 1mm X 1mm over posterior commissure. The injures was within 24 to 36 hours from the time of examination; (ii) There was tear of size about 3mm X 1mm X 1mm over posterior commissure. Duration of the same was also within 24 to 36 hours from the time of examination; and (iii) Fresh bleeding seen in inside vaginal canal on P/V examination (per vagina examination) also I found redness over both sides of vaginal canal. Presence of carunculae hymenolis (Vaginal canal admits 2 fingers).” According to her, the blood group of victim was A+ve and she opined that there is forcible sexual intercourse to the victim. She proved the report vide Ext.3. Of course, she do not find any external injury on her person. In cross-examination, she admitted that she has not mentioned in her report about forcible sexual intercourse. It is the duty of the doctor to maintain her opinion in the medical report. However, basing on the finding of the doctor in the report, opinion can be elicited from expert during examination because opinion of the doctor is only rendered basing on the injury he/she finds on the body of the injured. So, the opinion of the doctor in her examination in chief that the injuries on genital part of P.W.3 show about the forcible sexual intercourse cannot be discarded. 20. In further examination, P.W.8 has stated that she did not find any injury on the external aspect of the private part of the victim. When there are so many injuries on her private part, the absence of any injury on the external aspect of the private part having no consequence to deny rape. However, 20th Edition of Modi’s Medical Jurisprudence clearly speaks that fresh bleeding seen inside the vagina canal is clearly a indication of the injury caused to the female genital. Not only this but also the doctor has given opinion that the woman has got menopause. Unless there is a forcible sexual intercourse, the bleeding would not come from the vagina of a woman, who has already attained menopause. Be that as it may, the evidence of P.W.8 absolutely corroborates the statement of the victim as to forcible sexual intercourse by the appellant. 21. The evidence of the doctor (P.W.10), who had examined the appellant, clearly shows that the appellant was capable of undertaking sexual intercourse. This circumstance is also against the appellant. 22. Be that as it may, the evidence of P.W.8 absolutely corroborates the statement of the victim as to forcible sexual intercourse by the appellant. 21. The evidence of the doctor (P.W.10), who had examined the appellant, clearly shows that the appellant was capable of undertaking sexual intercourse. This circumstance is also against the appellant. 22. The statement of the I.O (P.W.14) shows that he has seized the blood stained saree and saya of the victim. He also seized the wearing apparels of the appellant. He proved the chemical examination report vide Ext.9. On going through chemical examination report (Ext.9), it appears that the saree and saya had got human blood stains of A+ve group. Thus, it is proved that the wearing apparels of the victim were stained with blood. The most significant matter is that her wearing apparels has also stained with semen of human being. Of course, the blood group of that semen stain could not be found by the chemical examiner as the same was deteriorated. However, when the statement of P.W.3 is clear that the appellant had discharged the semen and the same is found on her wearing saya, the evidence of the victim cannot be said to be falsehood. Thus, the chemical examination report amply lend corroboration the statement of the victim to show that she sustained sexual assault by none other than the present appellant. 23. The defence has not led any evidence to disprove the case of the prosecution. No evidence has been adduced to prove his innocence or false implication of the appellant in this case. Therefore, it must be held that the prosecution has well proved the offence under Section 376 of IPC against the appellant beyond all reasonable doubts. 24. On going through the judgment of conviction and sentence passed against the appellant by the Court below, it appears that the Court below has rightly appreciated the evidence of the witnesses and found the appellant guilty under Section 376 of IPC. There is no reason to differ from the view taken by the learned trial Court. 25. The aforesaid case of the prosecution about sexual assault to an old widow of 80 years is not only a ghastly act of cowardness but also a slur on the society where for satisfying lust, a man can go to the extent of committing rape to a grandmother aged woman. 25. The aforesaid case of the prosecution about sexual assault to an old widow of 80 years is not only a ghastly act of cowardness but also a slur on the society where for satisfying lust, a man can go to the extent of committing rape to a grandmother aged woman. If the woman like the victim of the present case is left alone in the house and such heinous commission of offence takes place, we cannot imagine the bestiality of the human being that sacrifice the dignity, age, respect, humbleness and all virtue of a woman. For this shameless act where not only judicial but also a significant plea must rise to the occasion to protect the human right particularly of woman, the girl below 18 years and the old woman, who are infirm or disable to resist such demon act of a bizarre person. We are talking about protection of senior citizen but yet we have not realized that protection how far we have rendered to these category of woman who are helpless, aging and weak in health and mind. 26. The learned Trial Court in such case has only rendered the statutory duty by awarding the minimum sentence to the appellant without realizing that an eighty years old woman has been sexually assaulted while staying alone in the night. Since the prosecution has not come up for enhancement of the sentence in such a sensitive case, this Court is not able to pass any order enhancing the sentence already awarded. However, the minimum sentence, being awarded, is hereby confirmed but the fine amount realized from the appellant must be paid to the victim towards compensation under Section 357 of Cr.P.C. 27. In the result, this Court, while confirming the judgment of conviction and sentence dated 30.05.2015 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial No.08 of 2014, direct the State Government under Section 357-A of Cr.P.C. to pay a sum of Rs.50,000/-(Rupees Fifty Thousand) as compensation to the victim for the loss or injury she sustained in her mind and body in addition to the payment of fine amount realized from the appellant. The JCRLA is dismissed with above modification. The LCR be sent back immediately. A copy of this judgment be sent to State Legal Services Authority, Odisha, Cuttack to do the needful.