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2017 DIGILAW 965 (ORI)

Rabi Banka v. State of Orissa

2017-08-31

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. The appellant Rabi Banka faced trial in the Court of learned Additional Sessions Judge -cum-Judge, Special Court, Bargarh in C.T. Case No.95 of 2007 for offences punishable under sections 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and section 376 of the Indian Penal Code on the accusation that from 12.02.2007 for a fortnight, in village Attabira and at Sahasmunda, he being in a position to dominate the will of the victim girl belonging to the scheduled caste, used that position to exploit her sexually to which she would not have otherwise agreed and committed rape on the victim without her consent on the false assurance of marriage. The appellant was acquitted of the charge under section 3(1)(xii) of the 1989 Act vide impugned judgment and order dated 10.11.2008 but was found guilty under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-(rupees two thousand), in default, to undergo further rigorous imprisonment for a period of six months. 2. The prosecution case is that the victim girl (P.W.1) was Ganda by caste which comes under the scheduled caste and the appellant was Gouda by caste which comes under nonscheduled caste and non-scheduled tribe category. The victim was aged about fifteen years at the time of occurrence and she was illiterate and working as a labourer in a rice mill at Attabira and the appellant was also a labourer working in the same rice mill. The appellant repeatedly approached the victim and told her that he was in love with her and he wanted to marry her. Initially the victim denied to any such proposal given by the appellant but when the appellant told the victim that he was a bachelor and unless she agreed with the proposal of marriage, he would consume poison and commit suicide, the victim being a rustic and uneducated girl trusted the appellant and eloped with him. The appellant took the victim to the house of his aunt and they spent a night there. On the next day, they proceeded to village Sahasmunda where they stayed in the house of the maternal aunt of the appellant for a fortnight. The appellant assured the victim to marry her and started cohabiting with her. The appellant took the victim to the house of his aunt and they spent a night there. On the next day, they proceeded to village Sahasmunda where they stayed in the house of the maternal aunt of the appellant for a fortnight. The appellant assured the victim to marry her and started cohabiting with her. Subsequently, the victim came to know that the appellant was not a bachelor and he was having his wife and son. Coming to know about the same, the victim was frustrated and disappointed on such conduct of the appellant and challenged the appellant as to why he cheated her on the false assurance of marriage and subjected her to sexual intercourse. The appellant took the victim on the 15th day to Attabira and left her there. The victim disclosed about the occurrence before her parents and also stated as to how the appellant betrayed her. 3. The victim lodged the first information report on 01.03.2007 before the officer in charge of Attabira police station and accordingly Attabira P.S. Case No.23 of 2007 was registered under sections 366/376/506 of the Indian Penal Code and section 3 of the 1989 Act. P.W.7 Prasanta Kumar Bhoi who was the S.D.P.O., Bargarh took up investigation of the case. During course of investigation, he examined the victim, her parents and other witnesses and seized the wearing apparels of the victim and prepared the seizure list (Ext.4) in presence of the witnesses. He sent the victim for medical examination and P.W.5 Dr. Manoj Kumar Jena who was the Associate Professor, F.M.T., V.S.S. Medical College, Burla examined the victim. The I.O. visited the spot and examined the witnesses and reduced the statements into writing, arrested the appellant and sent him for medical examination and seized the wearing apparels under seizure list (Ext.5) and he also sent the seized articles for chemical analysis and obtained the chemical analysis report (Ext.8). He also received the medical examination reports of the appellant as well as the victim and on completion of investigation, on 30.06.2007 he submitted charge sheet against the appellant under sections 366-A/376/506 of the Indian Penal Code and section 3(1)(xii) of the 1989 Act. 4. He also received the medical examination reports of the appellant as well as the victim and on completion of investigation, on 30.06.2007 he submitted charge sheet against the appellant under sections 366-A/376/506 of the Indian Penal Code and section 3(1)(xii) of the 1989 Act. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 3(1)(xii) of the 1989 Act and section 376 of the Indian Penal Code on 30.10.2007 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. During course of trial, the prosecution examined seven witnesses. P.W.1 is the victim and she has stated about the entire incident. She is the informant in the case. P.W.2 Dr. Abhiram Behera who was Associate Professor, F.M.T., V.S.S. Medical College, Burla examined the appellant on 02.03.2007 and proved his report Ext.1. P.W.3 Janak Kalei is the father of the victim and he stated about the disclosure made by the victim before him as well as his wife (P.W.4) about the commission of sexual intercourse by the appellant on the victim and he further stated that the age of the victim was below fourteen years at the time of occurrence. P.W.4 Damayanti Kalet was the mother of the victim and she also stated in similar manner like her husband and further stated that her daughter was around fourteen years of her age at the time of occurrence. P.W.5 Dr. Manoj Kumar Jena was Associate Professor, F.M.T., V.S.S. Medical College, Burla who examined the victim on police requisition and proved his report (Ext.2) and opined the age of the victim to be 14-16 years. P.W.6 Dibya Kumar Mishra is an advocate who scribed the F.I.R. P.W.7 Prasanta Kumar Bhoi who was the S.D.P.O., Bargarh is the Investigating Officer of the case. The prosecution exhibited eight documents. Ext.1 is the medical examination report of the appellant, Ext.2 is the medical examination report of the victim, Ext.3 is the plain paper first information report, Exts.4, 5 and 6 are the seizure lists and Ext.7 is the copy of the forwarding report, Ext.8 is the chemical examination report and Ext.9 is the caste certificate. 6. The defence plea of the appellant is one of denial. 6. The defence plea of the appellant is one of denial. No witness was examined on behalf of the defence. 7. The learned Trial Court after assessing the evidence on record came to hold that the victim cannot be said to be above the age of 16 years and nothing substantial has been elicited from the evidence of the victim to disbelieve the prosecution case. It was further held that the appellant was a married person having his wife and kid yet he suppressed his marital status which speaks a volume against him and the entire factual matrix as testified by P.W.1, the prosecutrix revealed the dishonest conduct of the appellant. The learned Trial Court further held that the conduct of the appellant when he suppressed his marital status put the last nail in his coffin there being sufficient evidence to prove conclusively that the appellant never intended to marry the prosecutrix or even to provide her marital status. It was further held that the conduct of the appellant was exposed when he left the victim at lurch at Attabira bus stand. It became clear that the appellant did not wish to marry her and he committed rape on her without her consent. It was further held that there is no hesitation to accept the unimpeachable testimony of the victim and there is no telling circumstance to discredit the same. 8. Mr. Anupam Das, learned counsel appearing for the appellant challenged the impugned judgment and order of conviction and contended that it appears that the victim was a consenting party and even after coming to know that the appellant was a married person having his wife and kid, she continued keeping relationship with the appellant. It is further contended that since there is no corroboration to the ocular testimony of the victim from the evidence of doctor, the prosecution case should be discarded. Mr. Chitta Ranjan Swain, learned Addl. Standing counsel on the other hand supported the impugned judgment and contended that there are ample material available on record to show that the victim was minor and less than sixteen years at the time of occurrence and therefore, sexual intercourse with or without consent with a girl below the age of sixteen years amounts to rape as per clause sixthly under section 375 of the Indian Penal Code. It is further contended that consent given under a misconception is no consent in view of section 90 of the Indian Penal Code. It is emphatically contended that there is no perversity or illegality in the findings of the learned Trial Court and therefore, the appeal should be dismissed. 9. Coming first to the determination of the age of the victim, she at the time of her giving evidence on 14.03.2008 has stated that she was aged about fifteen years. The occurrence in question took place from 12.02.2007 for a fortnight. The father of the victim being examined as P.W.3 has stated that at the relevant time, the victim was below fourteen years. The mother of the victim being examined as P.W.4 has stated that the age of the victim to be around fourteen years old. The doctor P.W.5 who was the Associate Professor, F.M.T., V.S.S. Medical College, Burla after dental, physical and radiological examination opined the age of the victim to be fourteen to fifteen years. Nothing has been brought out in the cross examination of any of these witnesses to discard the evidence relating to the age of the victim as put forth by the prosecution. Of course neither the educational certificate nor any other document has been proved in connection with the age of the victim but it cannot be lost sight of the fact that the victim herself has stated that she is an illiterate and had no schooling at all. Though her mother (P.W.4) has stated that she was reading at school for some years and her date of birth might be ascertained from the school admission register, however, this discrepancy which is appearing relating to the schooling of the victim cannot be a factor to discard the prosecution evidence relating to the age of the victim which is not only stated by three witnesses i.e. the victim and her parents but also by the doctor (P.W.5). The learned Trial Court has held that the age of the victim by the date of occurrence can be recorded to be below sixteen years and under no circumstances, she was much above sixteen years. In view of the discussion above, the finding of the learned Trial Court that the victim was below the age of sixteen years appears to be quite justified. 10. In view of the discussion above, the finding of the learned Trial Court that the victim was below the age of sixteen years appears to be quite justified. 10. Coming to the evidence of the victim, it appears that she has stated that initially when the appellant expressed his love to her, she expressed her dislike but the appellant repeatedly approached her and gave proposal of marriage and told her that he would consume “Champa Phal” and commit suicide unless she agreed to marry him. The appellant further told her that he is a bachelor. The victim has vividly stated as to how she was taken from place to place and kept there and the appellant committed sexual intercourse with her. The victim has stated that after ten days of stay at Sahasmunda, she ascertained the marital status of the appellant for which she was taken aback and being frustrated and disappointed reacted sharply and told the appellant as to why he cheated her and on false assurance of marriage brought her to Sahasmunda and subjected her to sexual intercourse. She has not stated that after coming to know about the marital status of the appellant, she allowed the appellant to cohabit with her. The victim has stated in her cross-examination that the appellant administered some medicine to her for which she was practically not in her self control and sense and she was under the influence of that medicine and unable to express herself normally. The victim has stated that the appellant took her to Attabira after fifteen days and left her at lurch near Attabira market and he escaped. From this evidence of the victim, it is apparent that the appellant had deliberately suppressed his marital status before the victim and assured her for the marriage and took her to his relation’s house and kept physical relationship with her. The victim was under a misconception of fact that the appellant would marry her. Section 90 of the Indian Penal Code states that if the consent is given by a person under fear of injury, or under a misconception of fact, such consent obtained, cannot be construed to be a valid consent. The victim was under a misconception of fact that the appellant would marry her. Section 90 of the Indian Penal Code states that if the consent is given by a person under fear of injury, or under a misconception of fact, such consent obtained, cannot be construed to be a valid consent. In case of Yadla Srinivasa Rao -Vrs.-State of Andhra Pradesh reported in (2007) 36 Orissa Criminal Reports (SC) 37, it is held that the accused as per the testimony of P.W.1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being mislead by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. It is further held that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not consent in law. It cannot be lost sight of the fact that the victim was an uneducated and rustic girl and she believed the appellant due to her simplicity that the appellant would marry her and therefore, she had submitted to sexual intercourse with him. Submission of her body under a misconception created by the appellant is not consent. Every consent involves submission but the converse is not true. The sexual intercourse which was committed by the appellant with the victim particularly when the victim was under the age of sixteen years amounts to ‘rape’ in view of the clause sixthly as enumerated under section 375 of the Indian Penal Code. Every consent involves submission but the converse is not true. The sexual intercourse which was committed by the appellant with the victim particularly when the victim was under the age of sixteen years amounts to ‘rape’ in view of the clause sixthly as enumerated under section 375 of the Indian Penal Code. Non-finding of any bodily injury by the doctor (P.W.5) who examined her at a belated stage cannot be a factor to discard the evidence of the prosecutrix. The possibility of not physically restraining the appellant by the victim under the misconception created by the appellant cannot be ruled out and therefore, absence of marks of injury is not a relevant consideration to rule out the accusation of rape. The conduct of the victim after she was left at lurch near Attabira market by the appellant in immediately disclosing about the incident before her parents is admissible as res geste under section 6 of the Evidence Act. Therefore, on a careful analysis of the evidence of the victim coupled with the evidence of her parents, I am of the view that the finding of the learned Trial Court that the prosecution has successfully established the charge under section 376 of the Indian Penal Code against the appellant is quite justified and calls for no interference. The sentence which has been imposed on the appellant is the minimum sentence and no interference is also called for in that respect. It appears that the appellant was taken into custody and forwarded to Court on 03.03.2007 and he was not granted bail either during investigation or during trial or by this Court during pendency of the appeal. Therefore, it is expected that after serving out the sentence, the appellant must have been released from custody, if not so, he should be released forthwith if he is not otherwise required to be detained in connection with any other case. Accordingly, the criminal appeal stands dismissed.