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2019 DIGILAW 144 (ORI)

Bikar @ Bikrtan Mallik v. State Of Orissa

2019-02-20

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The appellant Bikar @ Bikrtan Mallik faced trial in the Court of the learned Adhoc Addl. Sessions Judge (F.T.C.-II), Balasore in S.T. Case No.16/85 of 2012 for offences punishable under sections 450 and 376(2)(f) of the Indian Penal Code for committing house trespass on 09.10.2011 at 9.00 a.m. by entering into the house of the informant Smt. X (P.W.5) situated in village Rehenga under Khantapada police station in the district of Balasore and committing rape on the daughter of the informant (hereafter 'the victim'), who was a girl below the age of twelve years. The appellant was found guilty under section 450 of the Indian Penal Code so also under section 376(2)(f)/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- (rupees one thousand), in default, to undergo rigorous imprisonment for two months for the offence under section 376(2)(f) read with 511 of the Indian Penal Code and further to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- (rupees one thousand), in default, to undergo rigorous imprisonment for one month for the offence under section 450 of the Indian Penal Code with a further direction that both the substantive sentences were to run concurrently. 2. The prosecution case, in short, as per the first information report lodged by Smt. X (P.W.5) before the Inspector in charge of Khantapada police station on 20.10.2011 is that she was a daily wage earner and belonged to scheduled caste. Her husband was staying outside in connection with his work. She was having three children and out of her daily earning, she was maintaining her children as well as her mother-in-law who was bed-ridden. On 09.10.2011 in the morning the informant had gone outside to work and her three children were in the house. On that day at about 9.00 a.m., taking advantage of the absence of the informant from the house, the appellant came to her house and sent the youngest daughter of the informant to a shop and carried the victim (P.W.7) who was the middle daughter of the informant to inside the house, opened her pant and attempted to commit rape on her. When the victim cried, the appellant threatened to kill her by strangulating her and then committed rape on the victim. When the victim cried, the appellant threatened to kill her by strangulating her and then committed rape on the victim. At that point of time, one of the neighbour namely Sasmita Mallik (P.W.6) came to the house of the informant and found the appellant was putting on his clothes. When P.W.6 confronted the appellant as to why he had come inside the house of the informant and why the victim was crying, the appellant replied that he had done nothing and accordingly he left the house. The victim did not tell anything to P.W.6 out of fear. When the informant returned home and found the victim crying, she asked the victim about the cause of her weeping and limping. The victim disclosed everything before her mother. The informant sent message to her husband but he did not come and then the informant also fell sick for some time for which there was delay in lodging the first information report. 3. On the basis of the first information report, Khantapada P.S. Case No. 244 of 2011 was registered under section 376(2)(f) of the Indian Penal Code by Mr. Manoranjan Biswal (P.W.10), Inspector in charge of the police station who also took up investigation of the case. During course of investigation, P.W.10 examined the informant (P.W.5), the victim (P.W.7) and other witnesses and seized one black colour under garment of the victim under seizure list (Ext.3). He sent the victim for medical examination to Khantapada Hospital on police requisition, visited the spot which is the dwelling house of the informant and prepared spot map (Ext.7). After the medical examination of the victim, the I.O. seized one sealed bottle containing vaginal swab of the victim on production by the constable and prepared seizure list (Ext.8). On 02.04.2012 he received information that the appellant had surrendered in the Court and remanded to judicial custody. On 12.04.2012 he brought the appellant under police remand for medical examination and prepared the medical requisition in favour of the appellant but since before the doctor, the appellant refused to get himself medically examined, he was sent back to judicial custody. The I.O. sent the seized exhibits to R.F.S.L., Balasore through the Court of learned S.D.J.M., Balasore. He received the medical examination report and after completion of investigation, he submitted charge sheet against the appellant under section 376(2)(f) of the Indian Penal Code. 4. The I.O. sent the seized exhibits to R.F.S.L., Balasore through the Court of learned S.D.J.M., Balasore. He received the medical examination report and after completion of investigation, he submitted charge sheet against the appellant under section 376(2)(f) of the Indian Penal Code. 4. After submission of charge sheet, the case was committed to the Court of Session after observing due committal procedure. The learned trial Court charged the appellant under sections 450 and 376(2)(f) of the Indian Penal Code on 16.07.2012 and since the appellant refuted that 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, in order to prove its case, the prosecution examined eleven witnesses. P.W.1 Sudarshan Das is the uncle of the victim and he accompanied the informant and the victim to the police station at the time of lodging of the first information report. P.W.2 Dr. Sasank Sekhar Das stated that when the appellant was produced for medical examination on police requisition, he refused for getting himself examined and accordingly, the report Ext.2 was prepared. P.W.3 Sukantimani Barik was the constable who took the victim to the hospital for her medical examination and after her examination, she handed over two sealed bottles containing vaginal swab of the victim collected by the doctor to the investigating officer. P.W.4 Dhananjaya Patra is a constable who stated about the seizure of under garment of the victim under seizure list (Ext.3). P.W.5 Smt. X is the informant and mother of the victim and she stated about the disclosure made by the victim on the date of incident about commission of rape on her by the appellant. P.W.6 Sasmita Mallik stated to have marked the appellant in a naked position inside the house of the informant sleeping over the victim and at that time the victim was also naked and crying. She further stated that the victim disclosed before her about the commission of rape on her by the appellant which she in turn disclosed before the informant. P.W.7 is the victim and she stated about the commission of rape on her by the appellant. She further stated about the arrival of P.W.6 in the house at the time of incident and narrating the incident not only before her but also before the informant in the evening. P.W.7 is the victim and she stated about the commission of rape on her by the appellant. She further stated about the arrival of P.W.6 in the house at the time of incident and narrating the incident not only before her but also before the informant in the evening. P.W.8 Prasant Kumar Mallik is the brother of the victim who stated that the appellant came to their house on the date of incident and sent him to field and after he returned from the field, he found the victim crying and subsequently he came to know about the misdeeds committed by the appellant on the victim. P.W.9 Dr. Kanhu Kishore Mohanty was the radiologist attached to District Headquarters Hospital, Balasore who on radiological examination opined the age of the victim in between six to eight years and proved his report (Ext.5) as well as the Xray plate (Ext.6). P.W.10 Manoranjan Biswal was the Inspector in charge of Khantapada police station and he is the investigating officer. P.W.11 Dr. Arun Kumar Patra examined the victim on police requisition and proved his report Ext.4/2. The prosecution exhibited eleven documents. Ext.1 is the first information report, Ext.2 is the medical examination report of the accused, Exts.3 and 8 are the seizure lists, Ext.4/2 is the medical examination report of victim, Ext.5 is the X-ray report, Ext.6 is the X-ray plate, Ext.7 is the spot map, Ext.9 is the medical requisition in favour of the appellant, Ext.10 is the copy of forwarding report and Ext.11 is the chemical examination report. The prosecution also proved the panty of the victim girl as a material object i.e. M.O.I. 6. The defence plea of the appellant was one of the denial and it was pleaded that the victim was cutting grass over the ridge of his field and when he protested her, the informant quarreled with him and he suspected that for such incident, a false case has been foisted against him. The appellant examined himself as D.W.1 in support of his defence plea. 7. The learned trial Court after analyzing the evidence on record has been pleased to hold that the evidence of P.W.6 who is an eye witness to the occurrence corroborated the evidence of the prosecutrix. The appellant examined himself as D.W.1 in support of his defence plea. 7. The learned trial Court after analyzing the evidence on record has been pleased to hold that the evidence of P.W.6 who is an eye witness to the occurrence corroborated the evidence of the prosecutrix. It is further held that since the hymen of the victim was intact and there were no tears, the medical evidence belies the victim's statement regarding any sexual assault on her. It is further held that the victim is a reliable and trustworthy witness and there are sufficient corroborative piece of evidence to establish that the appellant came to the house of the victim, lifted her inside the house, undressed her and then he himself removed his lungi and slept over her and pressed his penis over her private part but failed to insert into her vagina. Accordingly, the learned trial Court convicted the appellant under section 450 and section 376(2)(f) read with section 511 of the Indian Penal Code. 8. Mr. Gopal Krishna Nayak, learned counsel appearing for the appellant contended that the inordinate delay in lodging the first information report has not been satisfactorily explained by the prosecution and the medical evidence goes against the oral evidence relating to any kind of sexual assault on the victim. The evidence of the witnesses are contradictory and therefore, the appellant should be given benefit of doubt Mr. Arupananda Das, learned Addl. Govt. Advocate on the other hand supported the impugned judgment and contended that delay in lodging F.I.R. in a crime of sexual assault on a minor girl cannot be a ground to discard the prosecution case. He argued that since the doctor did not notice any injuries like tears to the hymen or any external injuries on the body of the victim and the victim stated that the appellant pressed his penis over her private part but he had not inserted it, the learned trial Court held that it is a case of attempt to commit rape. 9. Section 376(2)(f) of the Indian Penal Code prescribes punishment for commission of rape on a woman under the age of twelve years. Therefore, first it is to be seen how far the prosecution has proved that the victim was under the age of twelve years. The occurrence stated to have taken place on 09.10.2011. 9. Section 376(2)(f) of the Indian Penal Code prescribes punishment for commission of rape on a woman under the age of twelve years. Therefore, first it is to be seen how far the prosecution has proved that the victim was under the age of twelve years. The occurrence stated to have taken place on 09.10.2011. The victim (P.W.7) while deposing in Court on 22.08.2012 stated her age to be nine years. P.W.9, the radiologist attached to District Headquarters Hospital, Balasore stated that on 21.10.2011 he conducted radiological examination of the victim girl on police requisition and as per his report (Ext.5) which is based on the X-ray plate (Ext.6), the age of the victim was in between six to eight years. P.W.11 Dr. Arun Kumar Patra who examined the victim on 20.11.2011 at C.H.C., Khantapada stated that as per the radiological examination, the victim's estimated age was in between six to eight years and the victim had not attended her menarche i.e. the first menstrual cycle. P.W.5, the informant who is the mother of the victim stated while giving her deposition on 21.08.2012 that the victim was aged nine years. The age aspect of the victim has not been challenged by the defence. Therefore, one of the ingredients of the offence under section 376(2)(f) of the Indian Penal Code that the victim should be under twelve years of age is satisfied. In the first information report, P.W.5 mentioned that rape was committed on the victim by the appellant. It is further stated in the F.I.R. that when P.W.6 arrived at the spot, she found that the appellant was putting on his clothes and the victim was crying and shivering. As per the F.I.R., the victim did not tell anything to P.W.6. P.W.5 in her evidence stated that when she asked the victim about the incident, she told that the appellant came and made her naked and then raped her (kharapa kama). The victim was unable to walk and she noticed her private part was swollen. P.W.6 also stated that she found the appellant was naked and he had slept over the victim and the victim was also naked and crying and the victim disclosed before her that the appellant came to their house, made her naked and committed rape on her. The victim was unable to walk and she noticed her private part was swollen. P.W.6 also stated that she found the appellant was naked and he had slept over the victim and the victim was also naked and crying and the victim disclosed before her that the appellant came to their house, made her naked and committed rape on her. The victim (P.W.7) has stated that the appellant lifted her inside the house, removed her pant and then he laid her on the floor and removed his lungi and slept over her and pressed his penis over her private part. She got pain and when she cried, the appellant gagged her mouth and threatened to take away her life. In the cross-examination, the victim stated that the appellant pressed his penis over her private part but he had not inserted it. The doctor (P.W.11) stated that on 20.11.2011 when he examined the victim, he did not find any external injuries on her body. On examination of her genetalia, the general appearance was healthy, hymen was intact without any tear and there was no bleeding and there was no admissibility of finger. He further stated that in case of forcible sexual intercourse on a virgin girl of aged eight years, there must be presence of injury on her private part and the injuries will subsist for about seven days. The incident in question took place on 09.10.2011 at about 9.00 a.m. and the doctor (P.W.11) examined the victim on police requisition only on 20.10.2011. In view of the time gap between the date of occurrence and date of medical examination, non-finding of any external injury on the victim cannot be a ground to discard the entire prosecution case. As per Modi's Medical Jurisprudence, twenty-third edition, at pages 897 and 928, to constitute the offence of rape, it is not necessary that there would be complete penetration of the penis with emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and perineum. Since the victim (P.W.7) has stated that the appellant pressed his penis over her private part but had not inserted it and the doctor also found the hymen to be intact, the learned trial Court taking into account the explanation to section 375 of Indian Penal Code, which states that penetration is sufficient to constitute the sexual intercourse necessary to the commission of rape, held that it is a case of attempt to commit rape. In view of the oral evidence adduced by the victim which is corroborated by the informant and P.W.6 and further taking into account the medical evidence, I find no infirmity in the finding of the learned trial Court in that respect. Accordingly, the conviction of the appellant under section 376(2)(f) read with section 511 of the Indian Penal Code is upheld. 10. Section 450 of the Indian Penal Code prescribes punishment for house trespass in order to commit any offence punishable with imprisonment for life. Section 376 of the Indian Penal Code also prescribes punishment for life. House trespass has been defined under section 442 of the Indian Penal Code. If there is criminal trespass into any building used as a human dwelling then it can also come within the purview of house trespass. The victim (P.W.7) has stated that the appellant lifted her inside the house where the crime took place. P.W.6 has also stated that in the house of the victim, she found the appellant in a naked position so also the victim who was crying. Therefore, it is apparent that on the date of occurrence, the appellant had committed criminal trespass into the house of the victim and therefore, the learned trial Court has rightly convicted the appellant under section 450 of the Indian Penal Code. 11. Therefore, it is apparent that on the date of occurrence, the appellant had committed criminal trespass into the house of the victim and therefore, the learned trial Court has rightly convicted the appellant under section 450 of the Indian Penal Code. 11. It is not in dispute that the incident which took place on 09.11.2011 was reported to the police on 20.10.2011. The informant (P.W.5) has stated that after the incident, she felt ashamed and out of shock, she felt sick. She disclosed the incident before her sister-in-law who came to her house and on her advice, she went to the police station and her brother-in-law Sudarsan Das scribed the F.I.R. which was presented before police. The F.I.R. reveals that the husband of the informant was staying outside and the mother-in-law of the informant was bedridden at the time of occurrence. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the first information report in a case of this nature is a normal phenomenon and can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. In view of the materials available on record, I am of the humble view that the delay in lodging of the F.I.R. has been satisfactorily explained. I also find that there are no such contradictions in the evidence of the material witnesses like the victim (P.W.7), her mother (P.W.5) and also P.W.6 so as to disbelieve the prosecution case. 12. In view of the foregoing discussions, the conviction of the appellant under section 450 of the Indian Penal Code so also under section 376(2)(f) read with section 511 of the Indian Penal Code is quite justified. Keeping in view the nature and gravity of the accusation and particularly the age of the victim, the punishment which has been imposed on the appellant cannot be said to be excessive under any circumstances. It appears that in the meantime, the appellant has already undergone the sentence. Keeping in view the nature and gravity of the accusation and particularly the age of the victim, the punishment which has been imposed on the appellant cannot be said to be excessive under any circumstances. It appears that in the meantime, the appellant has already undergone the sentence. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. Therefore, the impugned judgment and order of conviction and sentence passed by the learned trial Court is upheld. 13. In view of the enactment of the Odisha Victim Compensation Scheme, 2017, 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 of the victim, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Balasore to examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation. Let a copy of the judgment be sent to the District Legal Services Authority, Balasore for compliance. Lower Court's record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action. Accordingly, the Jail Criminal Appeal stands dismissed.