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2017 DIGILAW 58 (ORI)

Chunu @ Chunuram Mohanta v. State of Orissa

2017-01-12

S.K.SAHOO

body2017
Advocates Appeared : S.K. Sahoo, J. The petitioners Chunu @ Chunuram Mohanta and Tiku @ Saiba Mohanta faced trial in the Court of learned Asst. Sessions Judge-cum-Chief Judicial Magistrate, Baripada, Mayurbhanj in Sessions Trial Case No.49/101 of 1999 for commission of offence punishable under section 376(2)(g) of the Indian Penal Code on the accusation that on 05.12.1998 at about noon they committed gang rape on the victim “B” in village Bahadurpur in the house of accused Babula Mohanta. The learned Trial Court vide impugned judgment and order dated 06.09.2001 found both the petitioners guilty under section 376(2)(g) of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/-(rupees two thousand only) each, in default, to undergo rigorous imprisonment for a further period of one year each. The petitioners preferred an appeal in the Court of learned Sessions Judge, Baripada, Mayurbhanj which was heard by the learned Adhoc Additional Sessions Judge (Fast Track Court), Baripada, Mayurbhanj in Criminal Appeal No.69/54 of 2002/2001. The learned Appellate Court vide impugned judgment and order dated 8.8.2002 has been pleased to dismiss the appeal and upheld the impugned judgment and order of conviction passed by the learned Trial Court, hence the revision. 2. The prosecution case, in short, as per the First Information Report lodged by the victim (P.W.11) on 05.12.1998 before the Officer-in-charge of Baripada Sadar Police Station is that on that day at about 11.00 a.m. the friend of the victim namely Fuleswari Mohanta (P.W.14) came to her house and invited the victim to visit her house. The victim accompanied Fuleswari and on the way, they met another friend namely Rina (P.W.10) and then all the three friends went to the house of Fuleswari. Fuleswari went to the pond to take bath and the victim and Rina accompanied her and they went to attend the call of nature and when both of them returned to the tank, they found Fuleswari had already left to her house. Then the victim and Rina started returning to their houses. Rina stayed back on the way and the victim was returning alone. Then the victim and Rina started returning to their houses. Rina stayed back on the way and the victim was returning alone. Near the house of accused Babula Mohanta, petitioner No.1 Chunu @ Chunuram Mohanta gagged the mouth of the victim with a handkerchief and with the help of other accused persons namely Babula Mohanta and petitioner No.2 Tiku @ Saiba Mohanta took the victim inside the house and at that point of time, there was none else inside the house. It is further stated in the First Information Report that the three accused persons took the victim inside a room, locked the room from inside, made the victim lie on the ground, removed the chadi of the victim, tied her hands and legs and at first accused Babula Mohanta forcibly raped the victim for about ten to fifteen minutes and at that point of time, both the petitioners were holding the legs and hands of the victim and since there was pain, the victim tried to cry but the petitioner No.1 closed her mouth. Then the petitioner No.1 committed rape on the victim for about ten to fifteen minutes and at that point of time, the other two co-accused persons namely Babula Mohanta and petitioner No.2 Tiku @ Saiba Mohanta were holding the victim and then petitioner No.2 committed rape on the victim for about 15 to 20 minutes and at that point of time petitioner No.1 Chunu @ Chunuram Mohanta and Babula Mohanta were holding her legs and hands. It is further stated in the F.I.R. that after all the three accused committed gang rape on the victim, the victim wore her chadi and then accused Babula Mohanta opened the door of the house and put the victim outside. When the victim came outside, she found her father for which out of shame, she tried to run away from the spot but her father followed her and ultimately the victim narrated the entire incident before her father. She also narrated the incident before her mother and then came to the police station with her father and lodged the oral report. The oral report given by the victim was reduced into writing by P.W.12 Suresh Chandra Jena who was the Officer-in-charge of Baripada Sadar Police Station and it was read over and explained to the victim and accordingly treated as F.I.R. (Ext.5). 3. The oral report given by the victim was reduced into writing by P.W.12 Suresh Chandra Jena who was the Officer-in-charge of Baripada Sadar Police Station and it was read over and explained to the victim and accordingly treated as F.I.R. (Ext.5). 3. During course of investigation, the Investigating Officer examined the victim, seized the wearing apparels of the victim i.e., skirt (M.O.I) and chadi (M.O.II) vide seizure list Ext.7. He sent the victim for medical examination, visited the spot and found the patches of blood on the floor of the house and he also examined some more witnesses. On 06.12.1998 the Investigating Officer arrested the accused persons and seized their wearing apparels under seizure list Exts.8, 9 and 10. On that day, he also seized the saline extract of blood and sample gauze under seizure list Ext.11. On production by the Scientific Officer of D.F.S.L., Baripada who also made spot visit. The Investigating Officer also seized the vaginal swab collected by the Medical Officer and sample semen of all the petitioners which were seized under seizure list Ext.2. On 7.12.1998 the sample materials were forwarded to the State F.S.L., Rasulgarh for further scientific examination through S.D.J.M., Baripada. On the same day, the Investigating Officer received the preliminary Scientific report of D.F.S.L., Baripada. On 18.12.1998, the A.S.I. P.K. Singh Samanta seized the admission register of Tikarpada M.E. School on the requisition of the Investigating Officer. The Investigating Officer received the medical examination report of the victim and the accused persons. On 30.12.1998, C.I., Sadar, Inspector Sri C.D. Mohanta took over the charge of investigation and on completion of investigation, charge sheet was submitted on 30.12.1998 against the accused persons under section 376 of the Indian Penal Code. 4. Learned S.D.J.M., Baripada examined the case record and took cognizance of offence under section 376(2)(g) of the Indian Penal Code. So far as co-accused Babula Mohanta is concerned, since he was a juvenile, the case was splitted up and transmitted to the Juvenile Justice Board, Baripada for inquiry. 4. Learned S.D.J.M., Baripada examined the case record and took cognizance of offence under section 376(2)(g) of the Indian Penal Code. So far as co-accused Babula Mohanta is concerned, since he was a juvenile, the case was splitted up and transmitted to the Juvenile Justice Board, Baripada for inquiry. So far as the petitioners are concerned, after observing due committal formalities, their case was committed to the Court of Session for trial where the learned Trial Court framed charge against the petitioners under section 376(2)(g) of the Indian Penal Code and since the petitioners refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and to establish their guilt. 5. During course of trial, in order to prove its case, the prosecution examined fourteen witnesses. P.W.1 Dr. Susil Kumar Das was the Asst. Surgeon attached D.H.H., Baripada who on police requisition examined accused Babula Mohanta on 06.12.1998 and proved his report vide Ext.1. P.W.2 Purna Chandra Nayak was the Havildar attached to Sadar Police Station, Baripada who produced the accused persons and the victim before the doctors for their medical examination and on return to the police station, he handed over the sample semen collected from the accused persons and the vaginal swab from the victim before the Officer in charge which were seized under seizure list vide Ext.2. P.W.3 Rabindranath Nayak was the Police Constable attached to Sadar Police Station, Baripada who stated about the seizure of sample semen and vaginal swab by the Officer in charge under seizure list vide Ext.2. P.W.4 Santosh Kumar Mohanta was a teacher in Tikarpada M.E. School and he stated about the seizure of admission register where the victim was prosecuting her studies in Class-VII under seizure list Ext.3. P.W.5 Kartika Mohanta stated that on the date of occurrence, the parents of the victim were searching for her and after sometime he saw the victim emerging out of the house of the accused Babula Mohanta and ran away and later the father of the victim told him that the victim was raped by the accused persons. P.W.6 Jagannath Pandey was the father of the victim and he stated to have searched for the victim on the date of occurrence and further stated about the disclosure made by the victim regarding commission of rape on her by the accused persons. P.W.6 Jagannath Pandey was the father of the victim and he stated to have searched for the victim on the date of occurrence and further stated about the disclosure made by the victim regarding commission of rape on her by the accused persons. P.W.7 Draupadi Pandey was the mother of the victim and she also stated in the similar manner like her husband P.W.6. P.W.8 Dr. Dhaneswar Mishra was the Specialist of Gynecology who was attached to District Headquarters Hospital, Baripada who examined the victim on 05.12.1998 and proved her medical report Ext.6. P.W.9 Abdul Karim stated nothing about the prosecution case. P.W.10 Rina Mohanta is the friend of the victim who stated that on the date of occurrence, she was along with the victim for some time and when the victim went to her house, she also came back to her house. P.W.11 is the victim who narrated the incident in detail. P.W.12 Suresh Chandra Jena was the Officer in charge of Baripada Police Station who is the Investigating Officer in the case. P.W.13 Harish Chandra Mishra stated about the seizure of the wearing apparels of the victim under seizure list Ext.7. P.W.14 Fuleswari Mohanta stated nothing about the prosecution case. The prosecution exhibited twelve documents. Ext.1 is the injury report, Exts.2 and 3 are the seizure lists, Ext.4 is the relevant entry in the admission register, Ext.5 is the First Information Report, Ext.6 is the report of Dr. Dhaneswar Mishra (P.W.8), Exts.7, 8, 9, 10 and 11 are the seizure lists and Ext.12 is the report of D.F.S.L., Bhubaneswar. The prosecution proved two material objects. M.O.I is the skirt and M.O.II is the chadi of the victim. No witness was examined on behalf of the defence. 6. The learned Trial Court on analysis of the oral as well as documentary evidence on record came to hold that the evidence of the witnesses are clinching and convincing and they appear to be reliable and true and the evidence of P.Ws. 5, 6 and 7 substantially corroborate the evidence of the victim. The learned Trial Court further held that the contradictions which have been pointed out by the learned counsel for the accused persons appear to be of very minor in nature and no way touch the substratum of the case of the prosecution or the evidence of the witnesses. 5, 6 and 7 substantially corroborate the evidence of the victim. The learned Trial Court further held that the contradictions which have been pointed out by the learned counsel for the accused persons appear to be of very minor in nature and no way touch the substratum of the case of the prosecution or the evidence of the witnesses. It is further held by the learned Trial Court that the role played by each of the accused has been vividly stated by the victim. The evidence of the doctor also corroborate the evidence of victim and immediately after the occurrence, the I.O. seized the chadi (M.O.II) and sent it for its examination at the District Forensic Science Laboratory and on examination, blood and semen were found in the chadi. Accordingly, it was held that there is no room for doubt that on the date and time of the occurrence, both the petitioners committed rape on the victim one after another. The learned Appellate Court came to hold from the evidence of P.W.4, it is clearly evident that the date of birth of the victim is 03.05.1987 and the victim and her parents had clearly stated that at the relevant point of time, the victim was aged within 12 years. The learned Appellate Court on the face of the oral and medical evidence and also relying upon the principles of law decided by the Hon’ble Supreme Court and this Court held that it can be said that the prosecution has well proved the charge under section 376(2)(g) of the Indian Penal Code against the petitioners beyond all reasonable doubts. 7. Mr. Prakash Ranjan Barik, the learned counsel appearing for the petitioners contended that though it is the case of the victim that she was raped for about forty five minutes by three accused persons including the two petitioners one after another but there is no corroborating medical evidence to substantiate her ocular testimony. The learned counsel further contended that the evidence of the father of the victim is also full of contradictions and the learned Courts below have mechanically accepted the evidence of the victim and the medical evidence and passed the order of conviction which is liable to be set aside. The learned Additional Standing Counsel, Mr. The learned counsel further contended that the evidence of the father of the victim is also full of contradictions and the learned Courts below have mechanically accepted the evidence of the victim and the medical evidence and passed the order of conviction which is liable to be set aside. The learned Additional Standing Counsel, Mr. Jyoti Prakash Patra on the other hand contended that not only the evidence of the victim gets corroboration from the medical evidence but also before her parents, the victim made immediate disclosure about the occurrence and the First Information Report was also lodged promptly and there is no chance of any concoction of the prosecution case. The learned counsel for the State further contended that since there are concurrent findings of facts by the Courts below and no illegality has been pointed out in the impugned judgments, it is not a fit case to interfere with the same in exercise of the revisional jurisdiction and accordingly, the revision petition should be dismissed. 8. Considering the submissions made by the learned counsels for both the parties and on perusal of the evidence available on record, it appears that the victim (P.W.11) has stated her age to be fifteen years when she deposed in Court in the year 2001 and she has stated that the occurrence took place in the year 1998 and at that time she was reading in Class VII. P.W. 4 Santosh Kumar Mohanta who is the teacher of Tikerpalli M.E. School stated that in the year 1998, the victim was a student of Class VII and she was admitted in the school on 10.07.1997 in Class VI and as per the School Admission Register, her date of birth was 03.05.1987. The relevant entry in the school register has been marked as Ext. 4. The occurrence in question took place on 05.12.1998 and therefore, she was aged about twelve years at the time of occurrence. The father of the victim namely, Jagannath Pandey (P.W. 6) has stated that in the year 1998, the victim was aged about aged about eleven years and was reading in Class VII. 4. The occurrence in question took place on 05.12.1998 and therefore, she was aged about twelve years at the time of occurrence. The father of the victim namely, Jagannath Pandey (P.W. 6) has stated that in the year 1998, the victim was aged about aged about eleven years and was reading in Class VII. In view of the evidence of the victim, her father, her school teacher (P.W.4) where the victim was prosecuting her studies in Class VII and also the entry of the date of birth in the school admission register, it is very clear that the victim was aged about twelve years at the time of incident. Nothing has been brought out in the cross-examination to disbelieve such evidence. Learned counsel for the petitioners also did not challenge the factum of age of the victim as proved by the prosecution. Therefore, I am of the view that the prosecution has proved that at the time of occurrence, the victim was aged about twelve years. 9. Coming to the evidence of victim, she has stated that on the date of occurrence while she was in her house, her friend Fuleswari (P.W.14) came and called her to her house and while she was going to the house of P.W.14, she saw Rina (P.W.10) on the way and then all the three went to the house of Fuleswari and then to the tank to answer the call of nature, but on the way Fuleswari went somewhere and did not return for which the victim and Rina were coming back to their respective houses and when Rina went to her house, the victim was returning alone to her house. It is further stated by the victim that near the house of accused Babula, she saw accused Babula as well as the two petitioners and while she was about to cross the house of Babula, the petitioner no.1 Chunu put a napkin on her mouth and other two accused persons lifted her physically to the house of Babula and there were no other persons in that house. The victim has further stated that the petitioner no.1 caught hold of her legs and petitioner no.2 caught hold of her hands and accused Babula first committed sexual intercourse with her and after him the two petitioners also had forcible intercourse with her. The victim has further stated that the petitioner no.1 caught hold of her legs and petitioner no.2 caught hold of her hands and accused Babula first committed sexual intercourse with her and after him the two petitioners also had forcible intercourse with her. She has specifically stated that while one was engaged in committing sexual act, the other two were holding her legs and hands and due to sexual intercourse, she sustained pain in her vagina and also bleeding in her vagina. The victim has stated that when accused Babula opened the door, she ran outside and saw her parents and on being asked by her father, she narrated about the incident. In the cross-examination, the victim has stated that she could not shout as her mouth was closed all along with a handkerchief. She further stated that when she tried to extricate herself, the accused persons held her lightly. The evidence of the victim gets corroboration from the evidence of P.W. 6 and P.W. 7 who are her parents. P.W. 6 has stated that when the victim emerged from the house of the accused Babula and started running, he chased her and caught hold of her and the victim told that the accused Babula Mohanta and the petitioners Chunu Mohanta and Tiku Mohanta had taken her forcibly to the house of accused Babula Mohanta and all of them committed rape on her. P.W.7 has stated that when her husband caught hold of the victim, on being asked, the victim told that the two petitioners and accused Babula had taken her forcibly to the house of Babula and raped her. The immediate conduct of the victim in disclosing about the incident before her parents is admissible as res gestae under Section 6 of the Evidence Act as it is a spontaneous statement connected with the fact in issue and there was no time interval for fabrication. The doctor (P.W.8) who has examined the victim on the very day of the incident has stated that he found on internal examination, a laceration at 4 O’clock position on the left side of the labia minora oozing blood and the size of the laceration was 1mm x 1mm x 1mm. The doctor specifically stated that the injury may be possible by forcible sexual intercourse and he proved his report as Ext.6. The doctor specifically stated that the injury may be possible by forcible sexual intercourse and he proved his report as Ext.6. Though the doctor has stated in his cross examination that if the victim is raped by two to three persons, considering her tender age, more grievous injury might be caused in her private part but such evidence of the doctor cannot nullify the ocular testimony of victim which is corroborated by her parents. It appears that at the time of commission of rape by one accused, the other two accused persons were restricting the movement of the victim and holding her tightly and she was not allowed to extricate herself. Therefore, the medical evidence does not run contrary to the ocular testimony of the victim. The evidence of P.W. 5 is also relevant in the case in as much as he has stated that he saw the victim emerging from out of the house of accused Babula Mohanta and ran towards nala side and thereafter, the father of victim disclosed before him that all the three accused persons committed rape on the victim. It is pertinent to note that the victim identified her skirt (M.O.I) and chadi (M.O.II) in Court and stated that she was wearing those at the time of occurrence which were seized by police. The skirt (M.O.I) and chadi (M.O.II) of the victim girl were sent for chemical examination and the chemical examination report has been marked as Ext.12 which indicates that on preliminary examination, blood and seminal stains could be detected on the skirt and chadi of the victim girl and green colour half pant of accused Babula Mohanta. Therefore, not only the ocular testimony, the medical evidence, the surrounding circumstances as well as the chemical analysis report of the wearing apparels also corroborated the factum of gang rape on the victim. The First Information Report was lodged promptly in the police station and therefore, there is no chance of concoction of the case. Even though some contradictions have been brought out in the evidence of P.W. 6 relating to his visit to the house of Rina but that is no way relevant to discard the entire testimony of P.W. 6. In view of the overall analysis, I am of the view that the learned Courts below have not committed any illegality in convicting the petitioners under section 376(2)(g) of the Indian Penal Code. In view of the overall analysis, I am of the view that the learned Courts below have not committed any illegality in convicting the petitioners under section 376(2)(g) of the Indian Penal Code. The sentence which was imposed by the learned Trial Court is also on the lower side but in view of the passage of time since the date of occurrence, I am not inclined to interfere with the same by exercising suo motu power of revision, particularly when neither the State nor the victim has challenged the same. Accordingly, the revision petition filed by the petitioners being devoid of merits stands dismissed. The petitioners are on bail as per the order of this Court dated 06.01.2004 passed in Misc. Case No.315 of 2002. The bail bonds of the petitioners stand cancelled and they are directed to surrender before the learned Trial Court within a week from today to serve out the remaining part of the sentence, failing which the learned Trial Court shall take appropriate steps for their arrest and send them to jail custody. Lower Court records with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action. Accordingly, the revision petition is dismissed.