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2017 DIGILAW 1379 (ORI)

Khairi @ Santosh Kumar Das v. State of Orissa

2017-11-30

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The appellant Khairi @ Santosh Kumar Das faced trial in the Court of learned Adhoc Addl. Sessions Judge, (Fast Track Court), Balasore in Sessions Trial Case No. 38/158 of 2002-2001 for offence punishable under section 376 of the Indian Penal Code on the accusation of committing rape on the victim girl on 12.08.2000 at about 5.00 p.m. in the village Bhimain under Nilagiri police station in the district of Balasore. The appellant was found guilty of the offence charged and sentenced to undergo R.I. for seven years and to pay a fine of Rs.500/-, in default, to undergo R.I. for two months. 2. The first information report was lodged by one Padu @ Pradeepta Mallik (P.W.5) who happens to be the elder brother of the victim and he has mentioned in the first information report (Ext.3) that on 12.08.2000 in the afternoon at about 5.00 p.m. while the victim who was aged about eleven years was playing on the verandah of the house, the appellant came inside the courtyard and took her inside the house of the victim by dragging and made on flat on a bench, removed his pant upto his knee and then committed rape on the victim. When the victim cried aloud, another brother of the victim namely Jagabandhu Mallik (P.W.9) arrived there and found the appellant committing rape on the victim. When the appellant saw P.W.9, he fled away from the spot. P.W.9 narrated the incident before the co-villagers and found the victim lying in a senseless condition. The victim came to her senses due to sprinkling of water on her face. It was found that semen stains was there on the pant of the victim and since the other family members of the victim were not there and they came to the house hearing shout of P.W.9, the victim disclosed about the occurrence before them and accordingly, the first information report was lodged. The officer in charge of Nilgiri police station namely Dolagobinda Parida (P.W.10) registered Nilgiri P.S. Case No.83 of 2000 on dated 12.08.2000 under section 376 of the Indian Penal Code against the appellant and he took up investigation of the case. During course of investigation, he examined the witnesses, visited the spot, prepared the spot map, seized the wooden bench and one chadi of the victim with stains of semen. During course of investigation, he examined the witnesses, visited the spot, prepared the spot map, seized the wooden bench and one chadi of the victim with stains of semen. The appellant was apprehended on 14.08.2000 and he was sent for medical examination. The check lungi of the appellant was seized. The investigation was handed over to P.W.7 Umesh Kumar Panda and then to P.W.11 Deepak Kumar Jena, S.I. of police of Nilgiri police station who sent the material objects for chemical examination and on completion of investigation, submitted charge sheet. 3. The defence plea is one of denial and it is pleaded that the informant had kept a girl with him and in that connection, the appellant had reported the matter in the police station for which a false case has been foisted against him due to previous enmity. 4. After submission of charge sheet, the case was committed to the Court of Session and it was transferred to the learned trial Court, where the learned trial Court framed charge under section 376 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 his guilt. 5. During course of trial, the prosecution examined eleven witnesses, out of which the relevant of witnesses are P.W.8, the victim, her elder brother Jagabandhu Mallick (P.W.9) as well as P.W.6 Dr. Ivarani Hazira who examined the victim on police requisition and submitted her report (Ext.4). 6. The learned trial Court relying upon the evidence of the victim, eye witness (P.W.9) and the disclosure of the victim before her family members, found the appellant guilty of the charge under section 376 of the Indian Penal Code. 7. Mr. Smruti Ranjan Mohapatra, learned counsel appearing for the appellant contended that the medical evidence completely negatives any allegation of rape inasmuch as the doctor has not found any sign and symptoms of any recent sexual intercourse. It is further contended that in absence of any ossification test, it cannot be said with certainty that the victim was a minor girl at the time of occurrence. Mr. Chitta Ranjan Swain, learned Addl. It is further contended that in absence of any ossification test, it cannot be said with certainty that the victim was a minor girl at the time of occurrence. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel for the State on the other hand contended that even if the evidence of the doctor is silent regarding commission of rape but since her evidence is clear and trustworthy and it is a case of partial penetration and there was no earthly reason for the victim or her family members to falsely implicate the appellant in such heinous crime, the learned trial Court has rightly convicted the appellant. 8. The victim in her evidence has stated that she was reading in Class-III at the time of occurrence which took place four years back. The victim was examined in Court on 14.09.2004 and she stated her age to be fourteen years at the time of her deposition and further stated that she was reading in Class-VI. Her elder brother P.W.9 stated his age to be 17 years on the date of his deposition on 15.09.2004 and further stated that the occurrence took place four years back. Though the doctor (P.W.6) in order to determine the age of the victim sent her for ossification test but it is not clear whether such test was in fact been conducted or not. The ossification test report is also not available on record. Even though the victim was a student, the prosecution has not proved her date of birth as per school records. Even though these are the lacunas in the prosecution case but since the evidence of the victim regarding her age has remained unchallenged, the prosecution case that the victim was minor at the time of occurrence cannot be disbelieved particularly when she was reading in class-III at that point of time. 9. The victim in her statement has stated that at the time of occurrence, she was playing on the village street with one Mauna and the son of his elder brother and at that time nobody was in the house and all had gone to the field. The appellant came and chased Mauna holding a stick for which Mauna went away and then the appellant dragged her inside her house and made her lie on a bench and then he removed his pant and tried to penetrate his penis inside her vagina. The appellant came and chased Mauna holding a stick for which Mauna went away and then the appellant dragged her inside her house and made her lie on a bench and then he removed his pant and tried to penetrate his penis inside her vagina. She further stated that the appellant had penetrated about one inch of his penis into her vagina. She further stated that due to such act of the appellant, she sustained severe pain in her vagina for which she shouted and her brother Jaga (P.W.9) arrived there and seeing P.W.9, the appellant left the place. She further stated that when her mother, elder brother and sister-in-law (bhauja) came home, P.W.9 narrated the incident to them and she also narrated the incident to them. The victim has been cross-examined at length and it was confronted by the defence to the victim that she had not stated before the I.O. about the penetration of the penis of the appellant about one inch into her vagina which was confronted to her but the victim denied. The learned trial Court after verification of the 161 Cr.P.C. statement mentioned that the victim has stated that “TAPARE MATE KALA”. The confrontation part has been proved through the I.O. (P.W.10). Nothing substantial has been elicited in her cross-examination to discredit her version. Her version appears to be clear, cogent and truthful. The evidence of the victim gets corroboration from the evidence of her elder brother who has been examined as P.W.9 who stated that when he returned back to the house hearing cries of his sister, he found that P.W.8 was lying on a bench inside the main entrance room of the house and the appellant was lying over the victim and on seeing him, the appellant got up and he also saw the victim in a half naked condition and her pant was removed upto knee. The victim then disclosed before him that the appellant dragged her into the room by force and committed sexual intercourse. P.W.2, the mother of the victim has stated when she was working in the field on the date of occurrence, she heard hullah in her house and came to her house and found the victim crying who disclosed that the appellant committed rape on her. Thus the evidence of the victim is corroborated by the evidence of P.W.9 as well as P.W.2. Thus the evidence of the victim is corroborated by the evidence of P.W.9 as well as P.W.2. On perusal of the evidence of the doctor (P.W.6), it appears that the victim has examined on 14.08.2000 which is obviously two days after the occurrence and she found no external injury on her private part and no sign and symptoms of sexual intercourse. The doctor has further stated in the cross-examination that if there would be forcible intercourse, there must be injuries in the inner part of vagina and she did not find any external or internal injury on her private part. No doubt the evidence of the doctor is silent about any sexual intercourse but it cannot be lost sight of the fact that the victim was examined two days after the alleged incident and it is a case of partial penetration as per the prosecution case which was committed on a bench. Even if it is held that the victim has exaggerated by stating that there was penetration of one inch of penis and the medical evidence is silent regarding commission of rape but since the ocular evidence of the victim is cogent and trustworthy and remained unshaken, it is corroborated by other evidence, the evidence of the victim cannot be disbelieved on that score. The reporting of the incident in the police station within few hours of the occurrence is another factor which goes against any kind of concoction of the case. The lungi of the appellant was found to be stained with blood though the chadi of the victim was found to be not containing any blood and semen on chemical examination. 10. After analysing the evidence on record, I am of the view that the prosecution has successfully established a case under section 376 of the Indian Penal Code against the appellant. There is no infirmity or illegality in the impugned judgment and accordingly, the same is upheld. The sentence which has been imposed by the learned trial Court cannot be said to be excessive. It has been reported by the Superintendent of District Jail, Balasore that the appellant has already undergone his sentence and released from custody since 15.06.2012. 11. There is no infirmity or illegality in the impugned judgment and accordingly, the same is upheld. The sentence which has been imposed by the learned trial Court cannot be said to be excessive. It has been reported by the Superintendent of District Jail, Balasore that the appellant has already undergone his sentence and released from custody since 15.06.2012. 11. 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, Balasore 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, Balasore for compliance. Accordingly, the criminal appeal being devoid of merits, stands dismissed.