Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 414 (ORI)

Roga @ Murali Sethy v. State of Orissa

2017-04-17

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. PUJAHARI, J. 1. The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No.227 of 2009 on the file of the Adhoc Addl. Sessions Judge (F.T.C.), Jajpur. The learned Adhoc Addl. Sessions Judge (F.T.C.), Jajpur vide the impugned judgment and order dated 31.07.2010 held the appellant guilty of the offences under Sections 376(2)(f)/377 of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1000/-, in default, to undergo further rigorous imprisonment for three months and rigorous imprisonment for five years and pay a fine of Rs.1000/-, in default, to undergo further rigorous imprisonment for three months respectively. 2. Prosecution case placed before the trial court is that informant–Anima Biswal, a resident of village-Kotapur accompanied with by her minor son and daughter, had been to the house of her sister at village-Baliganda to attend a marriage ceremony. There, on 01.05.2009 at about 7 p.m. the informant with other relatives had gone to the temple of village deity to perform some rituals. On her return, she found the victim absent in the house and on search, found the victim crying coming from the side of a bomboo grove. Being asked, she narrated that the appellant who belongs to Kunarpur, had taken her to the grove on the pretext of taking to her mother and he committed rape and unnatural sex with her. The informant waited for return of her husband from Baripada and on his return, F.I.R. was lodged on 03.05.2009, basing on which investigation commenced. The Investigating Officer arrested the appellant, sent requisition for medical examination of the appellant and the victim and after completion of investigation, charge-sheet was submitted against the appellant and, accordingly, cognizance was taken and the case was committed to the Court of Sessions. Placing reliance on such case of the prosecution, the trial court framed charge against the appellant, as stated earlier and the appellant pleaded not guilty to the charge, as such, the trial commenced. During trial, prosecution examined ten witnesses besides exhibiting certain documents and Material Objects. On the other hand, the appellant, who took a plea of denial and false implication, examined himself as D.W.1 to prove his defence plea. During trial, prosecution examined ten witnesses besides exhibiting certain documents and Material Objects. On the other hand, the appellant, who took a plea of denial and false implication, examined himself as D.W.1 to prove his defence plea. On conclusion of the trial, the trial court accepting the version of the prosecution witnesses and other materials on record and repelling the defence plea, returned the judgment of conviction and order of sentence against the appellant, as stated earlier. 3. During course of hearing of the appeal, the learned counsel for the appellant contended that since the medical evidence on record does not support the prosecution case and the prosecution witnesses are being the relations of the victim, their evidence should not have been accepted by the trial court as corroboration to the version of the victim, more so in the backdrop of previous animosity. Coupled with the same, when the version of the victim is contradictory to the version in the F.I.R., the impugned judgment of conviction and order of sentence are not sustainable in law and should be set-aside. 4. On the other hand, the learned Addl. Standing counsel supported the impugned judgment of conviction and order of sentence to be just and proper advancing the submission that the same is based on cogent and acceptable evidence on record. 5. Perused the materials on record. As regards medical evidence, P.W.10, the Medical Officer, who had examined the appellant, while deposing that the appellant was capable of sexual intercourse, has also opined that his clothing etc. has no clue of alleged sexual offence and there was no bodily injury suggestive of forcible intercourse and there was no sign and symptom of recent sexual intercourse. P.W.3, the other Medical Officer, who had examined the victim, has stated that he found multiple tiny abrasions on both sides of the back of the victim on lower rib area, there was vulval swelling of both sides and there was a continuous rings shaped abrasions between the base of Hymen and base of Labia minora except a gap of 1 c.m. intact area, on left side and posterior and there was no fresh bleeding and colour of wounds brownish. He further stated that there was sign and symptom of attempt of recent sexual relation, as revealed from the examination of genital of the victim. He further stated that there was sign and symptom of attempt of recent sexual relation, as revealed from the examination of genital of the victim. He stated that the age of victim as per ossification test was 6 to 7 years. He proved the examination report vide Ext.1 and the ossification test report vide Ext.2. It was brought out in his cross-examination that there was no penetration of the penis into the private part of the victim, but from the swelling of the private part he concluded that there was some pressure and it might be an attempt to rape. 6. P.W.6, the victim, a child witness aged around 8 to 9 years, stated that on the date of occurrence, her mother had gone to a temple to perform some rituals of marriage and she went towards the temple searching her mother and the appellant was sitting near the temple. Being asked by her, if he had seen her mother, the appellant replied in affirmative and told that her mother had gone to the nearby bamboo grove. He forcibly lifted her to his lap and carried her into the bamboo grove despite her verbal resistance. He undressed her and had oral sex with her. The victim further stated that the appellant inserted his penis into her vagina and asked her to swallow the discharge of his semen in her mouth and when she cried, he dealt a slap on her cheek and threatened to kill if she would shout. The appellant then left her free and stayed back on the spot. The victim returned home crying and narrated the incident before her mother. She identified the appellant in the dock. During cross-examination the victim specifically stated that on the date of occurrence she saw the appellant for the first time and she found him in the Court on the date of her examination after the incident. She further stated that when the appellant was caught by the villagers and others, she identified him as the culprit. She also stated that the appellant was wearing a Banion of red colour. So far identification of the appellant, nothing substantial was elicited during her cross-examination to disbelieve her testimony. 7. She further stated that when the appellant was caught by the villagers and others, she identified him as the culprit. She also stated that the appellant was wearing a Banion of red colour. So far identification of the appellant, nothing substantial was elicited during her cross-examination to disbelieve her testimony. 7. P.W.8 (Kalia), the nephew of the informant, stated that he heard about the occurrence from the victim, and he along with Sasikanta (P.W.5) and others proceeded towards the bushy area and found the appellant coming from that side who ran away seeing them, but they chased and apprehended him. Thereafter, the victim and his (P.W.8) parents went there and asked the appellant about the occurrence, but he did not disclose anything. P.W.8 specifically stated that the victim identified the appellant to be the culprit. The appellant being examined as D.W.1 in his evidence stated that he is a Trekker driver and on the previous date of occurrence at about 9 p.m., the informant and her family members came and asked him to take to Baliganda on hire and he asked for a fare of Rs.300/- and they agreed. At Baliganda, he met P.W.8 (Kalia) who asked him to take the money from him on the following day, but he gave Rs.100/- only and there was altercation between them for the balance amount and P.W.8 assaulted and threatened to involve him in a criminal case. Peculiarly, no suggestion was put to the mother of the victim so also to P.W.8 that they have foisted a false case due to enmity regarding payment of less trekker fare. 8. P.W.5–Sashikanta Biswal stated in his evidence that the victim told that while she had gone to search for her mother, the appellant told her to take to her mother, but took to the bamboo bush and committed rape on her and after hearing about the occurrence he with P.W.8 and others went towards bamboo bush and found the appellant running away and they chased and apprehended him and the victim identified him to be the culprit, then the appellant managed to escape. During cross-examination, nothing substantial was elicited to disbelieve his testimony. P.W.4, the mother of the victim, stated that while getting ready to search the victim she found her coming crying and vomiting and being asked, the victim told about commission of rape and oral sex by the appellant to her. During cross-examination, nothing substantial was elicited to disbelieve his testimony. P.W.4, the mother of the victim, stated that while getting ready to search the victim she found her coming crying and vomiting and being asked, the victim told about commission of rape and oral sex by the appellant to her. P.W.4 further stated that the appellant was detained by some villagers and her nephew. She also stated that she waited for her husband who came on third instant and then she lodged the F.I.R. She also stated that the appellant was wearing a black colour pant and one red colour banion. Such version of the informant gets ample corroboration from the version of P.Ws.5, 6 and 8. 9. Fact remains that the informant-party and the appellant belong to different villages. As stated by the appellant (D.W.1), he does not know the informant. He has also stated that enmity developed between them due to payment of Rs.100/- by P.W.8 (Kalia) towards trekker fare although P.W.4 had agreed to pay Rs.300/-. Surprisingly, no such plea was taken by the appellant during his examination under Section 313 of Cr.P.C. nor any such suggestion was put to P.W.4. It is difficult to believe that a married woman would plant her child aged around 8 to 9 years to initiate a false case on the charge of rape putting her future in social stigma just to settle her score for a silly money transaction. For these reasons, the plea of the appellant regarding false implication due to previous enmity is not acceptable. 10. The next contention of the learned counsel for the appellant that the witnesses should be disbelieved as they are interrelated, is also not acceptable. Law is well settled that relationship among the witnesses is not a ground to discard their testimony though the same needs close scrutiny. I find no conceivable reason as to why the witnesses would depose lie against the appellant. 11. The next contention is that the victim is a child witness and her version does not get corroboration from medical evidence. This aspect was elaborately dealt by the learned trial court in paragraph-12 of its impugned judgment. Referring to a decision of the Apex Court in the case of Wahid Khan vrs. 11. The next contention is that the victim is a child witness and her version does not get corroboration from medical evidence. This aspect was elaborately dealt by the learned trial court in paragraph-12 of its impugned judgment. Referring to a decision of the Apex Court in the case of Wahid Khan vrs. State of Madhya Pradesh, 2010 (45) OCR SC 181, the trial court held that a medical officer can opine whether there is evidence of sexual activities, but where the rape has occurred or not, is a legal one, but not a medical one. In this case, the Medical Officer has opined that there are signs of attempt of rape. The learned trial court has held that the victim has sustained injuries of such nature and on such part which establishes that it was more than mere attempt and rather it is a case of rape with slight penetration since complete penetration is not possible without bleeding and other injuries in view of the age of the victim who is aged about seven years. So far Section 377 of IPC, the informant deposed that the victim was vomiting while returning home and the victim also stated in her evidence that the appellant had oral sex with her, inserted his penis into her vagina and asked her to swallow the discharge of his semen in her mouth. Such evidence clearly makes out a case of Section 377 of IPC. So, the contention that the version of the victim does not get corroboration from any corner is devoid of any force. Moreover, Section 118 of the Indian Evidence Act provides that a child witness is competent to depose if capable of understanding the implication of the question put to him/her and giving rational answers. Deposition of P.W.6 shows that the learned trial court found that she was able to understand the implication of question put to her by the Court and was giving reasonable answers. So far the other contention regarding delay in lodging the F.I.R., the mother of the victim stated in her evidence that she waited for her husband and on his return, she filed the F.I.R. which explanation is reasonable and acceptable. 12. The learned trial court after analyzing the evidence on record has rightly held the appellant guilty of the offences under Sections 376(2)(f)/377 of I.P.C. and the said order does not suffer from any illegality. 12. The learned trial court after analyzing the evidence on record has rightly held the appellant guilty of the offences under Sections 376(2)(f)/377 of I.P.C. and the said order does not suffer from any illegality. As regards the sentence part is concerned, the same being the minimum prescribed by law, needs no inference by this Court. 13. Hence, this criminal appeal is devoid of merit and, as such, stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of this Judgment.