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2017 DIGILAW 994 (ORI)

Jagannath Behera @ Janguru v. State of Orissa

2017-09-07

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. A child rape is the most terrifying ordeal and nastiest intensifying traumatic episode that take place in the victim’s life which causes such a deep physical and psychological wound and despair that it requires a brave and courageous effort on the part of the victim to overcome it and fight for justice. Sometimes the victim receives family support following disclosure and thereby having less traumatic symptoms and sometimes she is blamed by her family members and they even hesitate to proceed against the abuser for the sake of family prestige and social stigma. Without lack of psychological support from family, the victim suffers from long term anxiety, anger, depression, suicidality, self-mutilation, sexual problems, substance abuse, impairment of self-concept, interpersonal problems, obsessions and compulsions, dissociation, post-traumatic stress responses, and somatisation as well as re-victimisation. The appellant Jagannath Behera @ Janguru faced trial in the Court of learned Addl. Sessions Judge, Rairangpur, Mayurbhanj in S.T. Case No. 06 of 2011 for offence punishable under section 376 of the Indian Penal Code on the accusation of committing rape on the victim who was a school going twelve years old girl on 24.04.2010 at about 1.00 p.m. at Lodam Dunguri in village Golmunda. The learned Trial Court found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further rigorous imprisonment for a period of six months. 2. The prosecution case, as per the first information report lodged by the victim on 03.11.2010 before the officer in charge, Rairangpur Rural police station is that she was aged about twelve years and a student of Class VII in Banakati Nodal U.P. School. The appellant used to pass indecent remarks against her and was compelling her to keep physical relationship with him. It is further stated in the F.I.R. that on 24th April 2000 at about 1.00 p.m. while the victim was returning home, the appellant caught hold of her hands and forcibly took her to Lodam Dunguri and committed rape on her. When the victim cried, the appellant threatened her to assault and asked her to keep mum and assured her to marry. The victim out of shame did not disclose about the incident before anybody. When the victim cried, the appellant threatened her to assault and asked her to keep mum and assured her to marry. The victim out of shame did not disclose about the incident before anybody. It is further stated that thereafter the appellant used to meet the victim on the way and giving false assurance of marriage, he went on keeping physical relationship with the victim against her will for about seven months as a result of which the victim became pregnant for about six months. It is further stated in the first information report that on the eve of Laxmi Puja day, the appellant gifted a mobile phone to the victim and told her to get ready to abort her pregnancy when information would be given to her. The father of the victim came to know about the same and when he confronted the victim, the victim disclosed before him regarding the entire incident. Meetings were organized on three occasions for settlement on the request of the father of the victim in which the appellant not only confessed to have raped the victim and made her pregnant but also assured to marry the victim on the next year after termination of the pregnancy of the victim. Since the matter could not be settled at the village level, the victim lodged the first information report. On the basis of such F.I.R. (Ext.1), Rairangpur Rural P.S. Case No.48 of 2010 was registered on 03.11.2010 under section 376 of the Indian Penal Code. P.W.14 Manoranjan Samal who was the officer in charge of Rairangpur police station took up investigation of the case. During course of investigation, he examined the victim and other witnesses. He also seized a report of the villagers under seizure list (Ext.4). He visited the spot and prepared the spot map (Ext.9). He sent the victim for medical examination to S.D. Hospital, Rairangpur where P.W.10 Dr. Smt. Basanti Hansdah examined her and submitted her report (Ext.5). The I.O. arrested the appellant and sent him for medical examination to S.D. Hospital, Rairangpur where P.W.13 Dr. Pradip Kumar Mohapatra examined him and he opined that the appellant was physically capable of committing sexual intercourse and accordingly submitted his report (Ext.8). P.W.14 seized one LG mobile phone of the appellant which was produced by the father of the victim under seizure list (Ext.3). Pradip Kumar Mohapatra examined him and he opined that the appellant was physically capable of committing sexual intercourse and accordingly submitted his report (Ext.8). P.W.14 seized one LG mobile phone of the appellant which was produced by the father of the victim under seizure list (Ext.3). He also seized two vials containing vaginal swab and pubic hair of the victim produced by the constable under seizure list (Ext.6) and another vial containing pubic hair of the appellant under seizure list (Ext.7). He received the medical examination reports of the victim as well as appellant and after completion of investigation, he submitted charge sheet on 06.01.2011 under section 376 of the Indian Penal Code. 3. 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 376 of the Indian Penal on 23.04.2011 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. 4. The defence plea of the appellant is one of denial and it is further pleaded that there was previous enmity between the family of the victim and his family for which the case has been foisted. 5. In order to prove its case, the prosecution examined fifteen witnesses. P.W.1 Khetramohan Behera is the paternal uncle of the victim and he stated about the age of the victim and her disclosure regarding the occurrence. He further stated about the pregnancy of the victim as well as about the meeting which was held in the village in connection with the case. P.W.2 Iswar Behera also stated about the disclosure made by the victim about the occurrence and about the resolution passed by the villagers in which he was a signatory. P.W.3 Amiya Kumar Behera stated about the disclosure of the victim in the meeting and also about the resolution passed by the villagers. P.W.4 Gobinda Behera also stated about the holding of meeting in the village. P.W.5 Raj Kishore Behera did not support the prosecution case for which he was declared hostile. P.W.6 Mangulu Behera stated about the meeting in the village and also about the assurance given by the appellant to take the victim to his house. P.W.4 Gobinda Behera also stated about the holding of meeting in the village. P.W.5 Raj Kishore Behera did not support the prosecution case for which he was declared hostile. P.W.6 Mangulu Behera stated about the meeting in the village and also about the assurance given by the appellant to take the victim to his house. P.W.7 Sudam Behera is the paternal uncle of the victim who stated about the disclosure made by the victim so also about the meeting which was convened in connection with the case. He is a witness to the seizure of different articles. P.W.8 is the victim and she is also the informant in the case. P.W.9 Jantulal Behera stated about the meeting which was convened in the village but he was declared hostile by the prosecution. P.W.10 Dr. Smt. Basanti Hansdah examined the victim and proved her medical examination report Ext.5. P.W.11 Parsuram Barik and P.W.12 Sitaram Soren did not support the prosecution case regarding seizure aspect. P.W.13 Dr. Pradip Kumar Mohapatra examined the appellant and proved his report Ext.8 wherein he has opined that the appellant was physically capable of committing sexual intercourse. P.W.14 Manoranjan Samal was the officer in charge of Rairangpur Rural Police Station who is the Investigating Officer of the case. P.W.15 Chhotray Behera is the father of the victim who stated about the meeting that was convened in the village after the incident. The prosecution exhibited nine documents. Ext.1 is the F.I.R., Ext.2 is the written resolution, Exts.3 and 4 are the seizure lists, Ext.5 is the medical examination report, Ext.8 is the medical examination report and Ext.9 is the spot map. The seized mobile phone was marked as M.O.I. The appellant examined himself as D.W.1. 6. The learned Trial Court after discussing the evidence of the victim (P.W.8), her father (P.W.15) and the doctor (P.W.10) held that there is nothing to disbelieve the age of the victim to be twelve years at the time of occurrence. The learned Trial Court further held that by no stretch of imagination, it can be said that the victim had consented to have been sexually enjoyed by the appellant. It is further held that absence of any injury on P.W.8 as per the medical report (Ext.5) does not contradict her version of forcible rape by the appellant. The learned Trial Court further held that by no stretch of imagination, it can be said that the victim had consented to have been sexually enjoyed by the appellant. It is further held that absence of any injury on P.W.8 as per the medical report (Ext.5) does not contradict her version of forcible rape by the appellant. The learned Trial Court further held that only because the F.I.R. does not contain any explanation of delay, it cannot affect the truth and veracity of the allegation narrated therein. The learned Trial Court further held that the evidence of the victim (P.W.8) being corroborated by the medical evidence and the other oral evidence made by her father and other villagers, it is established that the appellant has committed rape on P.W.8. 7. Mr. Bijaya Kumar Behera, learned counsel appearing for the appellant while challenging the impugned judgment and order of conviction passed by the learned Trial Court contended that the first information report was lodged after seven months of the alleged incident and no satisfactory explanation has been offered by the prosecution regarding such inordinate delay and therefore, the entire prosecution case should be viewed with suspicion. It is further contended that in absence of any birth certificate, school leaving certificate or school admission register being proved, merely basing on the oral evidence of the victim and his father, the learned Trial Court should not have jumped to the conclusion that the victim was twelve years of age at the time of occurrence. It is further contended that when the F.I.R was lodged on 03.11.2010, the victim was pregnant and on the date of lodging of the first information report, the appellant was taken into custody and he was released on bail only on 02.07.2011 and therefore, the statement of the victim that the appellant gave some medicines to her for termination of her pregnancy and taking such medicines, her pregnancy got terminated, cannot be accepted. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel appearing on behalf of the State on the other hand supported the impugned judgment and submitted that the evidence of the victim is convincing and trustworthy and she disclosed about the occurrence before her family members at a belated stage as the appellant gave assurance of marriage to her after the first incident and also gave threat to her not to disclose the incident before anybody. It is further contended that after the father of the victim came to know about the occurrence from the victim, village meetings were held on three occasions and ultimately when no solution could be arrived at, a written resolution was passed and thereafter the F.I.R was lodged and therefore, it cannot be said that the delay in lodging of the first information report has not been satisfactorily explained and it affects the credibility of the prosecution case. Learned counsel further submitted that when the evidence of the victim, her father and the doctor relating to the age of the victim has not been challenged by the defence and no suggestion has even been given to any of these witnesses disputing her age, the finding of the learned Trial Court in that respect is quite justified. It is further submitted that the pregnancy of the victim has not only been stated by the victim herself but also by the doctor. Therefore, whether the appellant gave her medicine to terminate her pregnancy or not, is not a factor which would falsify the accusation of commission of rape and therefore, there being no perversity or infirmity in the impugned judgment, the appeal should be dismissed. 8. Coming to the first contention raised by the learned counsel for the appellant regarding the delay in lodging the first information report, the victim has stated in the first information report that the first incident took place on 24.04.2010. In the F.I.R, she has stated that after the first incident, not only the appellant gave her threat and asked her to keep silence and not to disclose before anybody but also gave assurance of marriage to her and went on keeping physical relationship with her for seven months and accordingly, she did not disclose about the incident before anybody and when the appellant presented a mobile phone to the victim which was detected by her father, on being confronted, she disclosed about the entire incident. No doubt, in the evidence, the victim has not stated that after the first incident, the appellant went on keeping physical relationship with her for seven months but she has not only stated about the first occurrence of commission of rape by the appellant but also stated that the appellant assured her to marry and warned her not to disclose the incident before anybody for which she did not tell anybody about the incident in her family. The father of the victim who has been examined as P.W.15 has stated that on hearing a ring tone of a mobile phone inside his house, he made a query to the victim and came to know that the mobile phone was presented to her by the appellant. The witnesses have stated about the holding of meeting in the village over this issue and passing of a resolution after which the F.I.R was lodged. Law is well settled that in case of rape, the family members of the victim are more concerned with the honour of the family and give cool thought to the pros and cons of lodging of the F.I.R. The victim kept mum after the incident for two reasons, as she was threatened and asked to keep silence and also because false assurance of marriage was given to her by the appellant but when she became pregnant and could not keep the secret because of the detection of the mobile phone of the appellant by her father which was presented to her, she disclosed the entire incident before her father. The conduct of the father in requesting the villagers for arranging the meetings and for settlement is another factor which delayed the lodging of the first information report. After all the attempts yielded no result, it appears that the villagers passed a resolution which has been exhibited as Ext.2 and thereafter, the victim lodged the first information report. In the sequence of the events, I am of the view that the prosecution has satisfactorily explained the delay in lodging the first information report and it cannot be said that the mere delay, if any, renders the prosecution version brittle. Therefore, the first contention of the learned counsel for the appellant regarding delay in lodging the F.I.R. as a ground to discard the prosecution case, cannot be accepted. Therefore, the first contention of the learned counsel for the appellant regarding delay in lodging the F.I.R. as a ground to discard the prosecution case, cannot be accepted. So far as the age aspect is concerned, there is no dispute that neither the school admission register nor the school leaving certificate nor the birth certificate of the victim has been proved in this case by the prosecution even though according to the victim she was a student of Class-VII at the time of occurrence but it cannot be lost sight of fact that the victim has stated her age to be twelve years. The father of the victim being examined as P.W.15 has also stated that the age of the victim to be twelve years at the time of occurrence. The paternal uncle of the victim who was examined as P.W.1 has stated the age of the victim to be twelve years. The doctor (P.W.10) who examined the victim on 03.11.2012 on police requisition stated that from the denture, permanent eruption of the second molar and space for third molar, pregnancy of the victim for which ossification test was not suggested, he came to the opinion that the age of the victim was within twelve to fourteen years. The evidence of none of these witnesses has been challenged by the defence on the age aspect of the victim. Nothing has been brought out in the cross-examination to discard the evidence relating to the age of the victim. The learned Trial Court after analysing the evidence on record has come to hold that there is nothing to disbelieve the age of the victim to be twelve years at the time occurrence. In view of the ocular as well as medical evidence adduced by the prosecution which has remained unchallenged, I am of the view that the finding of the learned Trial Court regarding the age of the victim suffers from no infirmity and therefore, the second contention raised of the learned counsel for the appellant that the prosecution has failed to prove the age of the victim to be minor cannot be accepted. The learned counsel for the appellant while challenging the pregnancy aspect and its termination contended that when the appellant was in custody since 03.11.2010 and he was released on bail only on 02.07.2011, therefore, the evidence of the victim that the appellant gave her some medicines for which her pregnancy got terminated is not acceptable. The materials available on record clearly indicate that the victim was pregnant for seven months. The doctor (P.W.10) in her report (Ext.5) has categorically mentioned that the height of the uterus was four fingers above the umbilicus and probable duration of the pregnancy was twenty eight weeks. She has also mentioned that the foetal heart sound was audible. This report dated 03.11.2010 clearly indicates that the victim was pregnant for about seven months. Whether the appellant terminated her pregnancy or not is not the criteria to discard the evidence of the victim regarding commission of rape. Similarly, even if the victim has not stated about keeping up of physical relationship by the appellant with her for seven months after the first incident in her evidence but that would again not falsify the first incident which has been vividly narrated by the victim and she has stated that while going to attend the marriage ceremony, on the way near Lodam Dunguri, the appellant forcibly dragged her and removed her wearing apparels and raped her for which she was weeping and the appellant assured her to marry and warned her not to disclose the incident before her parents. Thus the third contention raised of the learned counsel for the appellant to discard the prosecution case due to non-acceptability of the version of the victim that the medicine given by the appellant terminated her pregnancy, cannot be accepted. 9. Therefore, all the contentions raised by the learned counsel for the appellant having failed, in view of the available materials on record, I am of the view that not only the prosecution has established that the victim was a minor at the time of occurrence and was aged about 12 years but it has also established that due to rape committed by the appellant on 24.04.2010, the victim became pregnant. The oral as well as documentary evidence adduced by the prosecution clearly establish the accusation of rape against the appellant and therefore, the impugned judgment and order of conviction of the appellant under section 376 of the Indian Penal Code suffers from no infirmity and cannot be interfered with. So far as sentence aspect is concerned, the learned Trial Court has taken into account the heinousness of the offence and also the fact that the victim was a minor girl at the time of occurrence. The minimum sentence prescribed for the offence at the time of occurrence was seven years which may be for life or for a term which may extend to ten years and shall also be liable to fine. Though it has been prescribed under section 376 of the Indian Penal Code that the Court may for adequate and special reasons to be mentioned in the judgment can impose a sentence of imprisonment for a term of less than seven years but in the factual scenario, when a school going girl of class-VII has been forcibly raped and then threatened not to disclose the incident before anybody and assurance was given for marriage for which she became pregnant, I am not inclined to reduce the sentence which has been imposed by the learned Trial Court. Therefore, the sentence cannot be interfered with. 10. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Mayurbhanj, Baripada to examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation under the Orissa Victim Compensation Scheme, 2012. Let a copy of the order be sent to the District Legal Services Authority, Rairangpur for compliance. 11. In view of the aforesaid premised reasons, I am of the considered view that the impugned judgment and order of conviction and the sentence passed there under by the learned Trial Court does not suffer from any infirmity and therefore, I am not inclined to interfere with the same. Lower Court's record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action. 12. Lower Court's record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action. 12. Resultantly, the criminal appeal, being devoid of merit, stands dismissed.