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2017 DIGILAW 417 (ORI)

Niranjan Behera 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.148/30 of 1990 on the file of the Addl. Sessions Judge, Bargarh. The learned Addl. Sessions Judge, Bargarh vide the impugned judgment dated 05.04.1991 held the appellant guilty of the charge under Section 376 of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo rigorous imprisonment for three years. 2. Prosecution case placed before the trial court is that on 14.05.1990 at noon time, the victim girl was playing cards with her sister and other girls in her house and by then, her parents were absent in the house. The appellant came to the house, knocked the front door and the victim opened the door. The appellant then entered inside the house, asked the girls whether they would permit him to play cards with them and then went towards the backyard of the house. The victim was then standing near the ‘Dhaba’ room of their house. Thereafter when the appellant again came towards their ‘Dhenkisala’, seeing him, the victim entered inside the ‘Dhaba’ room, but the appellant also entered therein, sat on the cot and asked the other girls there to remain engaged in playing cards but they being scared of him fled away and so also being afraid of the appellant, when the victim was trying to go outside, the appellant caught hold her right hand, dragged her inside and when she shouted, he gagged her mouth. The victim was partially paralyzed from childhood, so she could not rescue herself out of the clutches of the appellant. Then, the appellant forcibly made her lie on the ground, opened her ‘Chadi’ and forcibly raped her. After some time, the mother and aunt of the victim came and she told them about the occurrence. After return of her father, she also told him about the occurrence and reported the matter at the Police Station, basing on which, a case was registered, investigation commenced and after completion of investigation, charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Session and the trial court placing reliance on the materials on record, framed charge against the appellant under Section 376 of IPC to which the appellant pleaded not guilty. During the trial, the prosecution examined as many as twelve witnesses and exhibited certain documents, but the appellant has adduced no evidence in support of defence plea of false implication. The learned trial court on conclusion of the trial, placing reliance on the version of the witnesses, returned the impugned judgment of conviction and order of sentence, as stated earlier. 3. The learned counsel for the appellant submitted that in absence of any explanation for delay in lodging the F.I.R., the prosecution case should be thrown out. The P.Ws.2 and 4 are child witnesses and possibility of their being tutored cannot be ruled out, so they should not have been believed at all. For non-examination of the elder brother of P.W.2 who was present in the house, adverse inference should have been drawn against the prosecution. Moreover, the evidence of the victim is not supported by medical evidence, so also the evidence of other witnesses is full of material contradictions. In view of evidence of the mother of the victim, the finding of the trial court that the victim was aged below sixteen years, is palpably wrong. Finding of the learned trial court that the appellant took the plea of sexual intercourse with consent is not in consonance with the materials on record. The findings are based on inadmissible evidence and appreciation of evidence is perverse, for which the judgment should be set-aside. 4. On the other hand, the learned Addl. Standing counsel supported the impugned judgment of conviction and order of sentence. 5. Perused the materials on record. As it appears from the version of the victim, when she was in her house and playing cards with other children and her parents were absent, the appellant knocked at the door and when she (victim) opened the door, he (appellant) entered inside the house and seeing him, they hide themselves in different places in their house and the appellant then went inside the ‘Bari’ and seeing the same, when the victim came out of the ‘Dhaba’ room, the appellant again appeared and obstructed her, caught hold of her left hand, gagged her mouth by putting his right palm, took her to a corner of that ‘Dhaba’ room, made her lie on the floor by force, snatched her chadi, inserted his penis inside her vagina which bled and thereafter he squeezed her breasts and went away of her house. So also, the victim stated that when she cried for help, her mother (P.W.3) came and she narrated the aforesaid before her mother. An incisive cross-examination of the aforesaid witness has been done, but nothing substantial has been elicited indicating that she had any reason to falsely implicate the appellant who had sexually assaulted her. Such version of the victim also gets corroboration from the version of P.Ws.2 and 4, i.e., her cousin and natural sister respectively who were then present in the house of the victim. P.Ws.2 and 4 in their evidence also stated that when they were playing cards in their house, the appellant knocked at the door and when the victim opened the door, he came inside and being scared, they hid themselves and thereafter the appellant entered into the room where the victim was there and after some time the appellant came out and the victim was also then crying. P.W.4 is a natural sister of the victim who was also then present in the house, stated that when she, the victim along with others were playing cards in the absence of the other family members of the victim, the appellant knocked at the door and the victim opened the door and thereafter all of them hide themselves in different rooms and the appellant taken the victim to the ‘Dhaba’ room and thereafter came out and the victim then was crying. The aforesaid witnesses to the occurrence, i.e., P.Ws.2 and 4 though not spoke directly about the sexual assault on the victim, but spoke about the appellant entering into the ‘Dhaba’ room and come out and then the victim was crying. The evidence of P.Ws.2 and 4 has been assailed to be unworthy of credence inasmuch as the aforesaid evidence of prosecution witnesses has been assailed on the ground of non-examination of the brother of the P.W.2 though the incident has been taken in their house, withholding of such material witness, adverse inference needs to be drawn against the prosecution. But, none of the witnesses has stated that the brother of P.W.2 was present when the aforesaid incident took place. In the absence of any evidence with regard to the presence of the brother of P.W.2 at the time of incident, such contention to assail the evidence of P.Ws.2 and 4, therefore, is without any substance. But, none of the witnesses has stated that the brother of P.W.2 was present when the aforesaid incident took place. In the absence of any evidence with regard to the presence of the brother of P.W.2 at the time of incident, such contention to assail the evidence of P.Ws.2 and 4, therefore, is without any substance. So far as the discrepancy with regard to the place of occurrence, it is argued that P.W.2, the cousin of the victim, states that the incident took place in her house whereas P.Ws.4 and 10 state that the incident took place in their house though their fathers have been separated and living in distinct houses. The same casts a cloud on the case of the prosecution inasmuch as the witnesses are not consistent in their version with regard to the place of occurrence. It cannot be lost sight of that P.W.2, a simple rustic girl of 12 years of age and she happens to be the first cousin of the victim and, as such, her identification of the house of her cousin to be her own house and, as such, saying the incident taken place in their house cannot be considered as discrepant to the version of P.Ws.4 and 10 with regard to the place incident. Even if the house between the fathers of P.Ws.2 and 4 have been partitioned, but the same being adjacent and the children not taking the partition seriously and identification of the house of first cousin to be their house is not an uncommon thing, especially in village set up. Hence, there is no discrepancy in the evidence with regard to the place of occurrence in the version of the witnesses, as such, the same does not affect the prosecution case or the version of the witnesses in any manner. 6. Coming to the next contention that since the aforesaid witnesses, more particularly P.Ws.2 and 4 are childen, their version is discrepant and full of material contradictions and they have given an inconsistent version, their such evidence is unworthy of credence inasmuch as possibility of their giving such version being tutored is not ruled out. There is no manner of doubt that these two child witnesses have remained inconsistent in many points and have also given contradictory versions. There is no manner of doubt that these two child witnesses have remained inconsistent in many points and have also given contradictory versions. But, as it appears, both of them have remained consistent with regard to the appellant entering into the house when they were playing cards and the victim was present and thereafter they were hiding themselves seeing the appellant and the appellant then entering into the ‘Dhaba’ room along with the victim and the appellant coming out from there after sometime and then the victim came out and cried. In this regard, virtually no discrepancy or contradiction in their version is noticed. So, they have remained consistent with regard to the substratum of the prosecution case. No material has been produced indicating that the prosecution had tutored them or they are giving a tutored version. There is also no reason for the prosecution to put the said two witnesses to be the witnesses to the occurrence if they were not at all present. Coupled with the same, a child of tender age also being able to recapitulate the abnormal things which took place in front of him/her correctly when asked, there is no reason to discard their such evidence holding the same to be tutored version of child witnesses. In such premises, the contention advanced to discard the evidence of the other witnesses to be unworthy of credence, therefore, is not acceptable. 7. So far the age of the victim, P.W.3, the mother of the victim stated that she was aged about twelve years and was reading in Class-VII. Of course, during cross-examination, P.W.3 stated that her age was about thirty-five years as on the date of her examination before the Court in January, 1991. She further stated that she was aged about sixteen years when victim–Subasini was born. The learned counsel for the appellant putting much emphasis on such evidence, contended that as per the version of the mother of the victim, she was aged about more than eighteen years by the time of occurrence in 1990. P.W.6, the Headmaster of the School while proving the entry in the transfer certificate of the victim girl vide Exts.2 and 2/1, stated that as per the entry mentioned in the School Admission register, the date of birth of the victim was “10.05.1976” and during the year 1990-91, the victim was a student of Class-VII of their school . P.W.6, the Headmaster of the School while proving the entry in the transfer certificate of the victim girl vide Exts.2 and 2/1, stated that as per the entry mentioned in the School Admission register, the date of birth of the victim was “10.05.1976” and during the year 1990-91, the victim was a student of Class-VII of their school . Deposition of the victim girl (P.W.10) shows that the learned trial court had assessed her age as thirteen years as on the date of her examination in January, 1991 and the girl on oath stated her age as fourteen years as on that day. P.W.9, the father of the victim girl, stated on oath that the victim was aged about fourteen years as in January, 1991. Of course, the lady doctor (P.W.7) who had examined the victim, stated that she was aged within 14 to 18 years. 8. As it appears from the evidence of P.Ws.3 and 9, who are the parents of the victim, the victim was aged about 12 to 14 years on the date of occurrence. P.W.6, the Headmaster of the School, has also proved the School Admission register (Ext.2), the entry on which has been made on the information supplied by the father of the victim (P.W.9). But, the doctor (P.W.7) who examined the victim, stated that the age of the victim was within 14 to 18 years, due to fusion of her knee joints, radious and ulna. But, the mother of the victim, a rustic village lady in her cross-examination stated that when she was 16 years of age, the victim was born and further she stated that her age would be about 35 years. The contention of the learned counsel for the appellant that in the backdrop of the above evidence the trial court was not justified in holding the victim to be less than 16 years and, as such, she had not attained the age of discretion to consent for sexual intercourse. Such contention of the learned counsel for the appellant appears to this Court to be without any substance inasmuch as the School admission register, which was proved, was based on the statement of the father of the victim. The father of the victim though a rustic villager, no doubt, appears to have given the birth date by approximation. Such contention of the learned counsel for the appellant appears to this Court to be without any substance inasmuch as the School admission register, which was proved, was based on the statement of the father of the victim. The father of the victim though a rustic villager, no doubt, appears to have given the birth date by approximation. But, the doctor’s evidence also does not militate against the approximate age of the victim inasmuch as the doctor says that she was within 14 to 18 years of age. The learned trial court has observed that the evidence of the doctor regarding ossification of the bones specially knee joint, radius and ulna cannot be accepted to be the surest test, particularly when she was not a radiologist nor she has expertise in medico legal cases. Moreover, she had not conducted any x-ray examination of her joins. The learned trial court analyzing such evidence on record has held that the mother of the victim was a rustic lady and, as such, her calculation about the age of herself and the victim cannot be so perfect to determine whether the victim was minor or major. Considering all such evidence, the learned trial court held that the victim was below the age of consent. I do not find any illegality or absurdity in such finding. So, the contention of the learned counsel for the appellant in this regard is devoid of any force. 9. The learned counsel for the appellant further contended that though the appellant had not taken any plea of consent, the learned trial court at paragraph-7 of its impugned judgment had given such finding. Moreover, the discrepancies in the evidence of the prosecution witnesses, so also the conduct of the victim in not raising any alarm during the alleged occurrence, coupled with the fact of absence of injury on her person falsifies the prosecution case. Of course, during his examination under Section 313 of Cr.P.C., the appellant had not taken the plea of consent. Rather, his plea was one of complete denial and false implication. In paragraph-5 of the impugned judgment, the learned trial court had taken note of the contradictions and discrepancies in the evidence of the witnesses on the aspect of the appellant forcibly taking away the victim to the corner of the room. Rather, his plea was one of complete denial and false implication. In paragraph-5 of the impugned judgment, the learned trial court had taken note of the contradictions and discrepancies in the evidence of the witnesses on the aspect of the appellant forcibly taking away the victim to the corner of the room. Considering the age and partial paralyzed health condition of the victim, her conduct by the time of occurrence and other attending circumstances, the learned trial court held that it was a case of full consent of the victim girl, allowing her person to be enjoyed by the appellant, but the victim having not attained the age for a consent of sexual intercourse, such consent is immaterial. In view of such finding, non-raising of alarm by the victim during the sexual intercourse pales into insignificance. 10. So far injury, the lady doctor (P.W.7) has stated that she detected no injury on or around her vagina and there was no sign of recent sexual intercourse. During cross-examination, she has stated that any injury, if was there, must have left mark at least for seven days. The alleged occurrence took place on 14.05.1990 whereas the victim was examined by the doctor on 24.05.1990. So, non-availability of injury mark is inconsequential. Hence, these aspects cannot falsify the prosecution case and more particularly the version of the victim who having no axe to grind deposed against the appellant. 11. The prosecution case has also been assailed to be unworthy of credence inasmuch as there was delay in lodging the report. No doubt, there was delay in lodging the report. But, the delay having been properly explained inasmuch as it is a case of sexual assault required to be disclosed at the cost of the family reputation and also the future life of the victim, the parents are not supposed to come forward immediately to the Police Station. The delay in absence of any convincing material indicating the improbability in the prosecution case or suggesting concoction to foist a false case, becomes immaterial and does not affect the case of the prosecution in a case of sexual assault. The delay in absence of any convincing material indicating the improbability in the prosecution case or suggesting concoction to foist a false case, becomes immaterial and does not affect the case of the prosecution in a case of sexual assault. The father of the victim has clearly stated that he was not there in the home on the date of occurrence as he had been to another place to catch fish and on the next day when he came, his wife having intimated the same, the matter was confronted to the appellant and thereafter the village meeting was held and also still it took time to decide what to do and in such circumstances, only two to three days after he lodged the report. Hence, the delay having been properly explained as convincing reasons having been given for such delay, the contention to discard the prosecution case to be unworthy of credence on the said ground, therefore, must fail. 12. As regards the defence plea, it was suggested to the victim that the appellant was medically treated her and when he demanded his dues, her father has arranged this false case, to which the victim categorically denied. It is difficult to believe that a person would set up and tutor his paralyzed minor daughter to initiate a false case of rape taking the risk of stigmatizing her chastity and future life just to avoid or get rid of some monetary liability may be towards payment of treatment fees. No evidence has been adduced by the appellant to substantiate such plea. Hence, such plea is not at all acceptable to doubt the veracity of the prosecution evidence. 13. The learned trial court though held that there was consent of the victim, but simultaneously held that she being below the age of consent which renders the consent immaterial. The learned trial court as such, has analyzed the evidence in proper perspective and found the appellant guilty of the offence under Section 376 of IPC. 14. So, on reappraisal of the evidence on record, it appears to this Court that the prosecution in this case has adduced clear, cogent and convincing evidence indicating the fact that the appellant sexually assaulted the victim and, as such, such finding of the trial court needs no interference. 14. So, on reappraisal of the evidence on record, it appears to this Court that the prosecution in this case has adduced clear, cogent and convincing evidence indicating the fact that the appellant sexually assaulted the victim and, as such, such finding of the trial court needs no interference. As regards the quantum of sentence, the same appears to this Court to be too lenient sentence inasmuch as the mitigating circumstances that has been taken into consideration appears to this Court to be out of tune. But, no notice on enhancement of sentence having been given, the same needs no interference. 15. 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.