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2017 DIGILAW 72 (ORI)

Albert Minz v. State of Orissa

2017-01-13

SATRUGHANA PUJAHARI

body2017
JUDGMENT S. PUJAHARI, J. - The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No.23/6 of 2009 on the file of the Addl. Sessions Judge, Fast Track Court, Rourkela. The learned Addl. Sessions Judge, Fast Track Court, Rourkela vide the impugned judgment and order held the appellant (hereinafter referred to as “the accused”) guilty of the charge under Section 376(2)(f) of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo R.I. for ten years and to pay a fine of Rs.5000/-, in default, to undergo R.I. for a further period of two years, with a direction that fine amount, if realized, a sum of Rs.4,000/- shall be paid to the victim towards compensation. 2. Shorn of unnecessary details, the case of the prosecution is that on 26.09.2008 at about 5 p.m. when the victim (P.W.3) (hereinafter referred to as “the victim”), a twelve years old rustic living in a remote area indulging in household activities, the accused finding her alone surged into her house and forcibly committed sexual intercourse despite feeble resistance offered by that female child. Julekha Kandulana (P.W.4), an elderly woman of the neighbourhood when entered into that house to fetch some vegetables, she found the accused committing the sexual act and the victim crying aloud. On her arrival, the accused took to his heels. The crestfallen victim narrated the fateful incident before her whereafter information being sent, the parents of the victim arrived when she also narrated before them what had happened and as to how the accused subjected her to sexual assault. The matter was brought to the notice of several villagers and thereafter information was lodged at the nearest Police Station whereupon police registered the case, took up investigation, sent the victim as well as the accused for medical examination and on completion of investigation, charge-sheet was laid against the accused under Section 376(2)(f) of I.P.C. The case being committed to the Court of Session, accused pleaded not guilty before the trial court and claimed to be tried. To substantiate its allegation, prosecution examined thirteen witnesses in all. On its behalf the prosecution had also produced twelve documents including the medical reports, School admission register and other material documents and got those documents exhibited. The accused did not choose to adduce any evidence in support of his plea of denial. To substantiate its allegation, prosecution examined thirteen witnesses in all. On its behalf the prosecution had also produced twelve documents including the medical reports, School admission register and other material documents and got those documents exhibited. The accused did not choose to adduce any evidence in support of his plea of denial. The learned trial court being satisfied with the nature of evidence adduced on behalf of the prosecution, held the accused guilty and sentenced him as aforesaid. 3. In assailing the judgment of conviction and order of sentence, Mr. P. Ramakrishna Patra, learned advocate appointed as Amicus Curiae on behalf of the accused submits that there being no credible evidence to hold that the victim was subjected to rape and there being also unexplained delay in lodging the F.I.R., the impugned judgment of conviction is unsustainable and liable to be interfered with by this Court. After substantial argument was advanced by Mr. Patra, Mr. D. Jena appearing for the appellant also appears and supports such contention of the learned Amicus Curiae. 4. Per contra, the learned Addl. Government Advocate appearing for the State defends the impugned judgment of conviction and order of sentence, the evidence being overboard. 5. The only question that needs decision is; Whether the judgment of conviction and order of sentence are just and reasonable ? 6. On a careful sifting of evidence of the victim, who is in between 12 to 14 years of age on the date of that fateful incident, I find she has given a detail and vivid narration of the event sequence-wise. The accused is a co-villager of the victim. That being the peak agricultural season, the victim, a rustic child, was in her house and cutting vegetables to help her stepmother. The accused finding her alone rushed inside, removed the clothes of the victim and forcibly committed sexual intercourse with her. Luckily, an elderly woman of the neighbourhood (P.W.4) when entered inside the house to fetch some vegetables, she found the accused committing basterdly act against the innocent victim who was found crying aloud. The evidence further reveals that on arrival of P.W.4, the accused took to his heels. The victim crying with acute pain disclosed that incident before P.W.4 who reached God sent where the victim was rescued from the clutches of the rapist. The evidence further reveals that on arrival of P.W.4, the accused took to his heels. The victim crying with acute pain disclosed that incident before P.W.4 who reached God sent where the victim was rescued from the clutches of the rapist. This post occurrence conduct of the victim is in consonance with the probability factors and admissible in evidence under Section 8 of the Indian Evidence Act. Moreover, the immediate conduct of the victim in disclosing about the incident before the P.W.4 and her parents on their arrival is admissible under Section 6 of the Evidence Act as res gastae. It is spontaneous statement connected with the fact in issue leaving no gap for fabrication. P.W.2, the father of the victim has also narrated what was divulged before him by her daughter (the victim) on that fateful evening. His evidence reveals presence of P.W.4 at the site of occurrence. P.W.5, the grandmother of the victim, has also deposed as to how on her arrival the victim narrated before her and other inmates of the family as to how she was subjected to rape by the accused. P.W.6, a neighbour, has deposed as to how P.W.5, the grandmother of the victim immediately after the alleged occurrence divulged before him the incident in details where she advised P.W.5 to immediately lodge F.I.R. All these witnesses were subjected to crossexamination, but nothing substantial has been elicited to discard them outright. The core of the evidence deposed to by P.Ws.2, 3, 4, 5 and 6 remained intact. There being nothing elicited in the crossexamination to disbelieve and discard such evidence which inspires confidence being natural and spontaneous. The victim, her parents, grand-parents and neighbours apparently no axe to grind against the accused to implicate him in a case of the serious nature. The fact that they come forward to depose suggests their conduct. 7. This being the nature of the evidence brought on record, let us see what P.W.1, the then Medical Officer who had examined the victim on 28.09.2008 on police requisition has deposed. The doctor did not notice any sign or symptom of recent sexual intercourse. However, the doctor opined with reference to ossification test conducted that the victim was in between 12 to 14 years of age. As per report, no pubic hair developed by then. She has proved her report marked as Ext.1 to Ext.9 in a series. The doctor did not notice any sign or symptom of recent sexual intercourse. However, the doctor opined with reference to ossification test conducted that the victim was in between 12 to 14 years of age. As per report, no pubic hair developed by then. She has proved her report marked as Ext.1 to Ext.9 in a series. The doctor was not cross-examined even in respect of the result of ossification test as much as three numbers of X-ray plates were not confronted with reference to the cul de sac conclusion of the doctor as to the age of the victim in between 12 to 14 years. Incidentally, neither the victim nor her parents and grand-parents were suggested that the victim was not in between 12 to 14 years of age on the date of that fateful incident. In addition to that, the prosecution has produced the School Admission register of the victim to establish her age. P.W.10 is the Headmaster of Jharbeda U.P. School. Ext.5 is that School Admission register. Ext.5/1 is the relevant entry in the name of the victim – Asima Baxla. As per School admission register, the date of birth of the victim is “03.02.1997”. This admission register produced and proved by the Headmaster of a Government School, reveals that the victim was around 12 years of age on the date of that alleged incident. When the date of birth incorporated in the School admission register the entries of the victim and her parents are inconformity with the results of ossification test and when the victim and her parents and grand-parents have deposed as to that apparent age, finding of the learned trial court that the victim was in between 12 to 14 years is overboard. In determination of age of the victim by the radiological test as done in this case, margin of error of two years on either side is to be taken into consideration and rightly the doctor has opined the age to be in between 12 to 14 years. 8. However, only because the doctor did not notice any external mark of injury on the person of the victim, that by itself is no ground to hold that the story of forcible sexual intercourse is an afterthought inasmuch as doctors are also like any other witnesses apt to commit error by not bestowing the required care and caution. 8. However, only because the doctor did not notice any external mark of injury on the person of the victim, that by itself is no ground to hold that the story of forcible sexual intercourse is an afterthought inasmuch as doctors are also like any other witnesses apt to commit error by not bestowing the required care and caution. In such premises, when the victim having no axe to grind against the accused deposes on oath that she was raped by the accused and particularly when in this case P.W.4 had seen the accused still committing the act, the evidence of the victims found trustworthy. It is not necessary in such circumstances to doubt the testimony of the victim in absence of any mark of injury on her person. One cannot lost sight of the fact that the victim has stated that he sustained pain when the accused subjected her to sexual intercourse. P.W.4 had seen the victim crying for help and immediately on her arrival when the accused escaped, the victim narrated the aweful incident before her. Her version is natural and convincing as rightly observed by the learned trial court. Behavioural probability cannot be lost sight of when the inherent bashfulness and feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. It must be remembered that no woman of honor will accuse another of committing rape since she sacrifices thereby what is dearest to her as held in the case of Krishan Lal vrs. State of Haryana, (1980) 3 SCC 159 . The learned trial court has found intrinsic truth in the evidence and the victim to be a truthful witness. Notwithstanding absence of external injuries, the case has to be accepted. The victim being a rustic living in a remote area, her family would be conscious of the danger of being ostracized by their tradition bound non-permissive conservatic society. When she is unmarried she would apprehend that it would be difficult to secure a match in future leaving aside such social stigma. When the family and neighbours come forward, the testimony of the victim deserves acceptance as statement of whole truth and she being below sixteen years of age where her consent had become insignificant being incompetent in law. When she is unmarried she would apprehend that it would be difficult to secure a match in future leaving aside such social stigma. When the family and neighbours come forward, the testimony of the victim deserves acceptance as statement of whole truth and she being below sixteen years of age where her consent had become insignificant being incompetent in law. Even her submission to sexual act by itself is sufficient to answer the description of rape within the meaning of Section 376(f) of I.P.C. The evidence of the victim of sexual assault stands on par with the evidence of an injured witness as she is the best witness and not likely to exculpate the real offender. The testimony of the victim and her parents is free from blemishes and implicitly reliable. The probability factor also does not render it unworthy of credence. Moreover, when the victim is held to be reliable and when her evidence not only inspires confidence but also corroborated in material particulars from other evidence and when she being below the age of consent, the accused cannot escape liability merely because no mark of injury found. [See- 1994(3) Crimes 416 (SC) (K.M. Narayana Amma vrs. State of Karnataka)]. The victim is a competent witness in terms of Section 118 of the Evidence Act. That apart, there is no abnormal delay in lodging of F.I.R. in this case. As per prosecution, the F.I.R. was lodged on 28.09.2008 at 10 a.m. and the incident had occurred on 26.09.2008 at about 5 p.m. The distance of the Police Station from the village is around 20 K.Ms. The father of the victim being employed in SAIL, Rourkela on receipt of information reached village on 28.09.2008 and thereafter he lodged F.I.R. There is thus no abnormal delay in lodging of F.I.R. The incident was brought to the notice of the villagers immediately after the occurrence and, therefore, there was no chance of fabrication and concoction to falsely implicate the accused. Explanation of such is inherent. The evidence of the victim and other witnesses being of sterling worth such evidence cannot be thrown out merely because there is delay in lodging of F.I.R. Moreover, in a case of this nature, the victim and her parents are initially reluctant to inform the police and only on getting support from the villagers gathered courage to lodge information. [See- AIR 1989 S.C. 702 (Prithi Chand vrs. [See- AIR 1989 S.C. 702 (Prithi Chand vrs. State of Himachal Pradesh)]. 9. The learned trial court has discussed thread bear of such material aspects in paragraphs-10 and 12 of his long judgment and accepted the victim to be a truthful witness. Of course, a critical analysis of the medical report and the version of the victims leads to a definite conclusion that the victim was above 12 years of age on the date of the alleged occurrence. Apparently, therefore, no offence is made out under Section 376(2)(f) of I.P.C., but the offence attracts the mischief of Section 376(1) of I.P.C. That being the fact, the accused cannot be held liable under Section 376(2)(f) of I.P.C., but he can be held to be guilty under Section 376(1) of I.P.C. Hence, the conviction of the accused is to be altered to one under Section 376(1) of I.P.C. 10. Considering the submission of the learned counsel for the accused that the accused is incarcerating over nine years, the substantive sentence of imprisonment awarded by the learned trial court be reduced to the period already undergone by the accused, I would like to reduce the substantive sentence of imprisonment to eight years instead of ten years imposed by the learned trial court. However, the extent of fine amount of Rs.5000/- is maintained. In default, the accused shall undergo R.I. for a further period of eight months instead of two years as originally imposed. It is further directed that in case of realization of fine amount in full, a sum of Rs.4000/- (rupees four thousand) shall be paid to the victim towards compensation. An amount of Rs.1000/- (rupees one thousand) shall be paid to Mr. P. Ramakrishna Patra, Advocate appointed as Amicus Curiae in this case towards his remuneration by the High Court Legal Services Committee. 11. With the aforesaid modification, this criminal appeal stands dismissed. L.C.R. received be sent back forthwith along with a copy of this Judgment. Ordered accordingly.