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2018 DIGILAW 123 (ORI)

Panchu Sahu v. State of Orissa

2018-01-29

D.P.CHOUDHURY

body2018
JUDGMENT : DR. D.P. CHOUDHURY, J. The captioned appeal is filed challenging the judgment of conviction and sentence passed by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in G.R. Case No. 23 of 2013 for the offence under section 376(2)(i) of I.P.C. read with section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). 2. The unshorn details of the prosecution case is that on 31.5.2013 at about 6.00 a.m. the informant Chanchala Jena along with his son had been to a feast by leaving the victim girl aged about 12 years old in the house. The husband of the informant had also left the house to deposit electric bill. So, taking advantage of loneliness of the victim the appellant entered into their house and committed forcible rape on the 12 years old victim girl after tearing her wearing apparel. During the occurrence the father of the victim girl returned home. When father of the victim girl returned home, the appellant seeing him fled away after criminally intimidating the victim and her father. The informant after returning to the home came to know about the incident from the victim and her husband. On 3.6.2013 the informant lodged F.I.R. before the I.I.C., Aska Police station, after which the investigation swung to action. During investigation the police examined the witnesses, the victim girl was examined by the doctor on police requisition, the police prepared spot map, examined the witnesses including the victim and sent the appellant for medical examination. During investigation the police also seized the wearing apparel of the victim and the appellant and sent same for chemical examination. The statement of the victim girl has been recorded under section 164 Cr.P.C. After completion of investigation charge sheet was submitted. 3. The plea of the appellant as revealed from the statement recorded under section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses, is squarely denial to the occurrence and he has been falsely implicated in this case due to previous enmity with the husband of the victim and he pleads innocence. 4. The prosecution in order to prove the charge examined nine witnesses. The defence examined none. 5. 4. The prosecution in order to prove the charge examined nine witnesses. The defence examined none. 5. The learned trial court after analyzing the evidence from the side of the prosecution found the appellant guilty and accordingly convicted him under section 376(2)(i) of the I.P.C. read with section 4 of the POCSO Act. SUBMISSIONS: 6. Learned counsel for the appellant submitted that the learned trial court has erred in law by not appreciating the evidence on record properly and reached a wrong conclusion. According to him, no outsider has been examined in this case except the parents, victim and relative of the victim. 7. Learned counsel for the appellant further submitted that there is discrepancy between the statement of the victim (P.W.2) and her statement made before the Magistrate under section 164 of Cr.P.C. because during her statement before the court she had not stated that the appellant over powered her and opened her under garment as well as his under garment and then committed rape, whereas she stated so during the statement made under section 161 of Cr.P.C. She never stated before the court to have made any resistance to the overt act of the appellant. She stated under section 164 of Cr.P.C. that the appellant offered her Rs.50/-out of Rs.500/-which is to be encashed, but she did not state this fact before the court. 8. Learned counsel for the appellant further submitted that P.W.7 who is the doctor did not find any external injury on the person of the victim girl, whereas the doctor found tenderness over the labia minora and labia majora. Thus, he submitted that in absence of external injury, but presence of such tenderness consensual sex of the victim girl with the appellant cannot be ruled out. Moreover, he submitted that the chemical examination report did not support the case of the prosecution. On the whole, he submitted that the conviction and sentence against the present appellant being illegal and improper should be quashed. 9. Learned Addl. Standing Counsel submitted that the evidence of the victim cannot be brushed aside because the doctor did not find external injury on the person of the victim girl. According to him, since the victim is a minor girl, any consent inferred from the conduct as submitted by learned counsel for the appellant cannot be consent under section 90 of the I.P.C. to exempt the appellant from the liability. According to him, since the victim is a minor girl, any consent inferred from the conduct as submitted by learned counsel for the appellant cannot be consent under section 90 of the I.P.C. to exempt the appellant from the liability. 10. Learned Addl. Standing Counsel further submitted that since there is injury on the private part and the same is corroborated by the evidence of the victim, the offence is made out well against the appellant. He further submitted that the statement of P.W.1., the mother of the victim girl and the statement of P.W.4, the father of the victim girl well corroborated the evidence of the victim (P.W.2) and law is well settled that the evidence of relative cannot be discarded except scrutinizing same with proper perspective. So, he supported the judgment of conviction and sentence and prayed to dismiss the appeal. DISCUSSION: 11. It is also settled in law that Court should take grain from the chaff. In this regard, Hon’ble Supreme Court, in the case of State of Punjab –V-Gurmit Singh; (1996) 2 SCC 384 , at paragraph-8 of the judgment, have held in the following manner:- "............The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable...............". 12. With due respect to the aforesaid decision, it is made clear that the evidence of the prosecution should not seek for corroboration, if the same is found to be cogent, clear and consistent. 13. 12. With due respect to the aforesaid decision, it is made clear that the evidence of the prosecution should not seek for corroboration, if the same is found to be cogent, clear and consistent. 13. It is trite in law that the evidence of relative witness cannot be discarded, because they are related to the victim, but such evidence is to be scrutinized with caution. 14. It is well settled in law that the first appellate court has to re-appreciate the evidence on record to find out whether the learned trial court has reached the conclusion correctly. The evidence is weighed, but not counted. The conviction can be based on the evidence of single witness if it is clear, cogent, consistent and above the reproach. 15. Keeping in mind the above principle, let me analyse the evidence of the prosecution witnesses. The statement of P.W.2, who is the victim girl clearly shows that in absence of her parents the appellant came to her house and called to open the door or else he would commit theft in her house. Being compelled she opened the door, but the appellant dragged her into the room and forcibly committed sexual intercourse with her after touring her frock and gazing her mouth by hand. While her father came and called, she went and opened the door, but the appellant fled away from the house. At that time she was 12 years old. On the arrival of the father and mother she stated to have narrated the occurrence and then F.I.R. was lodged. She has been grilled during cross-examination. During cross-examination she categorically stated that she raised hullah, but the appellant gagged her mouth and she categorically stated that the appellant committed penetrating sexual assault on her. Of course, she has admitted not to have sustained any bleeding injury. The absence of bleeding injury cannot discard her statement in any manner. On the other hand the cross-examination is totally futile one to discredit her testimony. Not only this, but also she was examined by the Magistrate under section 164 Cr.P.C. On comparison with the statement under section 164 Cr.P.C. nothing major discrepancy was noticed as to the commission of rape by the appellant upon the victim. On the other hand the cross-examination is totally futile one to discredit her testimony. Not only this, but also she was examined by the Magistrate under section 164 Cr.P.C. On comparison with the statement under section 164 Cr.P.C. nothing major discrepancy was noticed as to the commission of rape by the appellant upon the victim. It is true that in the statement before the Magistrate she stated that the appellant promised to pay Rs.50/-by encashing Rs.500/-, but the said fact is not stated during trial. Said discrepancy is very minor one. On the whole, it appears that the statement of P.W.2 is cogent, clear and above the reproach to show that she has been ravished by the appellant in absence of her father and mother. 16. The evidence of P.W.1 shows that she came to know about the occurrence from her husband. Although she has been cross-examined by the prosecution, but admitted during cross-examination about forcible sexual assault by the appellant upon the victim. During cross-examination she retracted that she had no knowledge about the incident, but came to know about the incident from P.W.2. Since she was not the occurrence witness, but her evidence is corroborated by the evidence of P.W.2 inasmuch as P.W.2 as revealed to have narrated the occurrence to her mother (P.W.1). Hence, the statement of P.W.1 about the incident is not hit by principle of hearsay evidence. It is well settled in law that in respect of hostile witness, the statement of such witness cannot be thrown out in straight way, but should be scrutinized with caution to find out the extent of evidence supporting the prosecution. Now the statement of P.W.1 even if scrutinized, the same is clear and cogent to support the P.W.2 about the occurrence occurred. 17. P.W.4 also revealed that while he returned from the work, he found that accused had let down his daughter on the floor and lying over her and committing rape on her. By seeing him the accused fled away from the house. In cross-examination denying the suggestion to the defence he stated before the police that he found the accused led his daughter on the ground of his house and was committing rape on her, but P.W.9 who is the I.O. denied about such statement before him. Thus, P.W.4 has contradicted his earlier statement made before the police by omitting to state such fact. Thus, P.W.4 has contradicted his earlier statement made before the police by omitting to state such fact. It is true that every omission does not amount to contradiction, but materials omission merits consideration. The statement of P.W.4 about witnessing the occurrence of rape is a material omission and same is found to have been introduced later on because he is the father of the victim girl. So, this portion of evidence of P.W.4 cannot be utilised. 18. The statement of P.W.4 does not disclose to have come to know about the occurrence from P.W.2, whereas P.W.2 stated to have narrated the occurrence to P.W.4. For these discrepancies the evidence of P.W.4 cannot be taken into consideration to prove the occurrence. 19. P.W.7, the doctor stated to have examined P.W.2 and found the following injuries on her and the observation is as follows:- “1. Medical examination of the examinee reveals signs of forcible penetrative sex act. 2. The examinee bears no external injuries on her person. 3. The blood group of the examinee is O+ 4. Considering her physical findings, dental examination, secondary sexual characters, menstual history and radiological findings, I am of the opinion that the age of the examinee is between 10 (ten) to 12 (twelve) years as on the day of her examination.” 20. From the aforesaid evidence it is clear that she has not noticed any external injury on the person, but found injury on her private part, which also clearly lends corroboration of the evidence of P.W.2 about injury on her private part, but did not disclose about any external injury sustained by P.W.2. Since the doctor’s evidence amply corroborates the evidence of the victim girl, question of sexual intercourse as alleged by P.W.2 cannot be ruled out. Not only this but also P.W.6 stated to have examined the appellant who is found to be capable of performing of sexual intercourse and such fact amply corroborates the evidence of P.W.2. 21. From the aforesaid discussion, it is clear that P.W.2 being 10 to 12 years old was ravished by the appellant by taking advantage of absence of her parents. The absence of external injury on her person has got several factors, such as place of occurrence, use of any bed sheet or plain cloth and the physical fitness of the male member. The absence of external injury on her person has got several factors, such as place of occurrence, use of any bed sheet or plain cloth and the physical fitness of the male member. In the instant case, it is clear from the evidence of P.W.2 that she has been over powered by the appellant while committing the offence and gagged her mouth which has sufficiently implied that she has no occasion to resist physically, but lonely to surrender before the appellant. 22. Of course learned counsel for the appellant submitted that the seized wearing apparel of the victim and the appellant do not disclose any clue supporting the statement of P.W.2. On perusal of the report of the chemical examiner vide Ext.15, it appears that the examination of blood group on the seized wearing apparel of the victim remained inconclusive. Even if the chemical examination report is inconclusive, but rest of the evidence as discussed above after reading same conjointly, amply proved the penetration sexual assault upon the minor victim girl at the instance of the appellant. 23. The plea of the learned counsel for the appellant that consent was there for such act. In view of the aforesaid discussion there is no second opinion to observe that the appellant committed rape on the victim and consent is no consent as she has not attained 18 years on the date of occurrence. 24. Learned counsel for the appellant submitted that there is delay of three days in lodging the F.I.R., which creates doubt over the case of the prosecution. It is clear from the statement of P.W.2 that due to holidays during the intervening period, they did not go the Police Station. It is true that Police Station is always open, but the impression of the mother of the victim girl cannot be ruled out as they are rustic villagers. So, the delay is sufficiently explained for lodging of the F.I.R. 25. The judgment of the lower court is gone through and it appears that the analysis of the evidence by the trial court is clear and consistent and there is nothing to interfere with it. So far as the sentence is concerned, learned trial court is found to have considered the age of the appellant and nature of accusation and then sentenced the appellant. So far as the sentence is concerned, learned trial court is found to have considered the age of the appellant and nature of accusation and then sentenced the appellant. Learned trial court has not only sentenced, but also directed for payment of compensation of Rs.1,00,000/-, of course he has not awarded separate sentence under section 4 of POCSO Act in view of the provision in the POCSO Act. 26. Since the appellant is middle aged person and has children, but for such ghastly act at his instance, being proved, no leniency is warranted. It appears that the learned trial court has taken all mitigating and aggressive factors and awarded the sentence appropriately and there is nothing to differ from his conclusion including payment of compensation. Hence, the Criminal Appeal being devoid of merit stands dismissed. The L.C.R. be returned forthwith.