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2019 DIGILAW 573 (ORI)

Benu @ Benudhar Naik v. State of Odisha

2019-09-12

S.K.SAHOO

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JUDGMENT : S.K. Sahoo, J. The day a woman can walk freely at midnight on the roads, that day we can say that India achieved independence. -Mahatma Gandhi Women are playing valuable roles of mothers, sisters, daughters and wives in our lives. They have become educated, self-dependent and strong and occupying various important posts in different fields. So many laws have been enacted to protect the women and their rights. In spite of that when some painful, shameful and shocking incidents concerning sexual abuse on women are heard, it disturbs the conscience of the civilised society and takes one to remind the aforesaid famous quote of the Father of the Nation. The appellant Benu @ Benudhar Naik faced trial in the Court of learned Adhoc Additional Sessions Judge, Fast Track Court, Champua in S.T. Case No.51/296 of 2009 for offence punishable under section 376(2)(g) of the Indian Penal Code for committing gang rape on the victim on 06.02.2008 evening at about 6.30 p.m. at Balani Basti, Bada Sahi under Barbil Police Station in the district of Keonjhar. The learned trial Court vide impugned judgment and order dated 18.12.2010, found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for three months. 2. The prosecution case, as per the First Information Report lodged by one Niranjan Nayak (P.W.13), the husband of the victim on 08.02.2008 before the Inspector-in-charge, Barbil Police Station is that on 06.02.2008 the victim, who is the wife of the informant had been to Badasahi Basti and was returning home at about 6.30 p.m. and while she was on the way, near a railway crossing, all on a sudden eight persons lifted her gagging her mouth and the victim could identify two of the culprits namely, Rintu @ Narottam Naik and the appellant out of the eight culprits. It is further stated in the First Information Report that the culprits committed gang rape on the victim. After returning from his work, the informant could not find the victim in the house and accordingly he proceeded to the house of his elder sister but there he got information that the victim had already left the house. The informant could locate the victim at Patra Sahi in Bolani Basti and found her crying. After returning from his work, the informant could not find the victim in the house and accordingly he proceeded to the house of his elder sister but there he got information that the victim had already left the house. The informant could locate the victim at Patra Sahi in Bolani Basti and found her crying. The victim narrated the incident before the informant and she also fell ill for which there was delay in giving information at the Police Station. The First Information Report which was lodged at Bolani Out Post was sent to Barbil Police Station for registration and accordingly Barbil P.S. Case No.30 dated 08.02.2008 was registered under section 376(2)(g) of the Indian Penal Code. The Inspector-in-Charge of Barbil Police Station directed P.W.15 Chitta Ranjan Nayak, who was the S.I. of Police attached to Bolani outpost to take up investigation of the case. During course of investigation, P.W.15 examined the informant, the victim and other witnesses and also seized wearing apparels of the victim i.e. one faded orange colour polyster saree, one earth colour torn saya under seizure list Ext.6. He sent the victim under police requisition to Government Hospital, Barbil for medical examination and accordingly Dr. Ratna Panda (P.W.14) of Government Hospital, Barbil examined the victim. The I.O. seized the collected blood sample, pubic hair, vaginal swab along with command certificate which was produced before him by the escort party under seizure list Ext.7. The co-accused Ritu @ Narottam Naik was arrested on 09.09.2008 and forwarded to Court on the next day. The seized articles were sent to S.F.S.L., Rasulgarh, Bhubaneswar as per the order of the J.M.F.C., Barbil for chemical examination. After completion of investigation, P.W.15 submitted charge sheet on 07.01.2009 under section 376(2)(g) of the Indian Penal Code against the co-accused Rintu @ Narottam Naik and also against the appellant showing the appellant as an absconder for which non-bailable warrant of arrest was issued against him. After completion of investigation, P.W.15 submitted charge sheet on 07.01.2009 under section 376(2)(g) of the Indian Penal Code against the co-accused Rintu @ Narottam Naik and also against the appellant showing the appellant as an absconder for which non-bailable warrant of arrest was issued against him. The co-accused Rintu @ Narottam Naik faced trial in the Court of learned Adhoc Additional Sessions Judge (Fast Track), Champua in S.T. Case No. 15/62 of 2009 for offence punishable under section 376(2)(g) of the Indian Penal Code and the learned trial Court vide judgment and order dated 24.08.2009 found him guilty of the offence charged and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for five months. Challenging such order of conviction, the co-accused Rintu @ Narottam Naik preferred an appeal before this Court in CRLA No. 474 of 2010 and this Court by judgment and order dated 09.02.2016 confirmed the order of conviction and sentence passed by the learned trial Court. 3. Pursuant to the non-bailable warrant of arrest, the appellant was arrested on 07.11.2009 and faced trial in the Court of Adhoc Additional Sessions Judge, Fast Track Court, Champua in S.T. Case No.51/296 of 2009. The learned Trial Court framed charge against the appellant on 04.02.2010 under section 376(2)(g) of the Indian Penal Code 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. During course of trial, in order to prove its case, the prosecution examined as many as eleven witnesses. P.W.1 Gopinath Munda is the scribe of the First Information Report. P.W.2 Dr. Aswini Kumar Das was the doctor attached to Govt. Hospital, Barbil, who examined the co-accused Rintu @ Narottam Naik on police requisition and found that he was well capable of performing sexual intercourse and his clothing were not having any physical clue of recent sexual intercourse and there was no bodily injury suggestive of forcible sexual intercourse and the genitalia did not show any sign and symptoms of recent sexual intercourse. P.W.3 Padia Naik did not support the prosecution case, for which he was declared hostile. P.W.4 Smt. Amulya Naik is the aunt of the appellant and she was declared hostile by the prosecution for not supporting its case. P.W.3 Padia Naik did not support the prosecution case, for which he was declared hostile. P.W.4 Smt. Amulya Naik is the aunt of the appellant and she was declared hostile by the prosecution for not supporting its case. After permission was granted by the learned trial Court to put leading questions, on the questions put by the learned Public Prosecutor, she stated that the victim disclosed before her that near the railway line in the night, she was subjected to rape by six to seven persons and she could identify two out of them and they were the appellant and co-accused Rintu Naik. She also stated that due to gang rape on the victim, she was unable to move properly and when the victim felt easy, she went to lodge information along with her husband. P.W.5 Smt. Kamala Munda stated that one day after the occurrence, the victim disclosed before her and her mother that five persons committed rape on her and out of them, she could identify two persons who were the present appellant and co-accused Rintu. P.W.6 Kalei Munda is the husband of P.W.5 Smt. Kamala Munda who came to know from her that two persons, namely, co-accused Rintu and the appellant committed rape on the victim. P.W.7 Bidyadhar Padhuria was the constable attached to Bolani Out post and he is a witness to seizure of vaginal swab, pubic hair, blood sample etc. of the victim collected by the doctor seized under seizure list Ext.3. P.W.8 Kaibalya Mohanta was another constable attached to Bolani outpost who stated about the seizure of blood sample, pubic hair, vaginal swab of the victim under seizure list Ext.3. P.W.9 Chandrabhanu Dehury was the constable attached to Bonai Police Station, who is a witness to the seizure of the report of the doctor vide Ext.4. P.W.10 Lokanti Naik and P.W. 11 Fagu Mahakud did not support the prosecution case. P.W.12 is the victim. She stated about the commission of gang rape on her by the appellant and co-accused Rintu. P.W.13 Niranjan Naik is the husband of the victim and he is also the informant in the case. He stated that while he along with his cousin brother Binod Naik were searching for the victim on the date of occurrence, they found the victim sitting under a tree near the Railway bridge being full naked and also narrated the incident of rape before him. He stated that while he along with his cousin brother Binod Naik were searching for the victim on the date of occurrence, they found the victim sitting under a tree near the Railway bridge being full naked and also narrated the incident of rape before him. P.W.14 Dr. Ratna Panda examined the victim on 9.2.2008 at Government Hospital, Barbil and she proved her medical examination report Ext.5. P.W.15 Chitta Ranjan Nayak was the S.I. of police, Bolani Outpost who is the Investigating Officer in the case. The prosecution exhibited eight numbers of documents. Ext.1 is the First Information Report, Ext.2 is the report of P.W.2 Dr. A.K. Das, Exts. 3, 4, 6, 7 and 8 are the seizure lists, Ext.5 is the medical examination report of the victim. 5. The defence plea of the appellant was one of denial. 6. When the matter was called for hearing, learned counsel for the appellant was not present and since it is an appeal of the year 2011 and the appellant is in judicial custody since 07.11.2009, therefore, the Court appointed Mr. Abinash Padhi, learned counsel as an amicus curiae to assist the Court. A copy of the paper book was also served on him and he was given time to prepare the case. The learned amicus curiae appearing for the appellant placed the impugned judgment, F.I.R. as well as the evidence of the witnesses and contended that the impugned judgment and order of conviction is not sustainable in the eye of law and there is delay of two days in lodging the First Information Report and the victim s statement is contradictory and since the victim was pregnant at the time of alleged occurrence and gang rape was alleged to have been committed on her as there was no abortion, the accusation of gang rape is falsified. Learned counsel for the appellant further urged that chemical examination report do not support the prosecution case. The learned counsel further submitted that the sentence imposed by the learned trial Court is excessive and as the petitioner is in jail custody since 07.11.2009, in case the order of conviction is sustained, the sentence be reduced to period already undergone. Mr. Jyoti Prakash Patra, learned Addl. The learned counsel further submitted that the sentence imposed by the learned trial Court is excessive and as the petitioner is in jail custody since 07.11.2009, in case the order of conviction is sustained, the sentence be reduced to period already undergone. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand contended that in a case of this nature, since the evidence of the victim is clear, cogent and trustworthy, that by itself is sufficient to convict the appellant. He urged that the victim has categorically implicated the appellant and two others to have committed rape on her and other persons have participated in dragging her and also committing same other overt acts. He further urged that the medical evidence clearly corroborates the evidence of the victim and the seizure of torn wearing apparels of the victim is an additional factor which lends support to her statement. The learned counsel further submitted that merely because as per the chemical examination report, blood stain or semen stain could not be detected on the wearing apparels of the victim that would not be a factor to reject the testimony of the victim. He further submitted that the co-accused Rintu @ Narottam Naik was convicted and sentenced by the learned trial Court in S.T. Case No. 15/62 of 2009 and challenging the said order of conviction, he also preferred an appeal before this Court in CRLA No.474 of 2010 and this Court by judgment and order dated 09.02.2016 confirmed the order of conviction passed by the learned trial Court and therefore, since same set of evidence is available against the appellant, the appeal should be dismissed. 7. Considering the rival contentions raised at the Bar and adverting to the evidence of the victim (P.W.12) who is the star witness of the prosecution, it is found that she has stated that on the date of occurrence while she was coming from Bolani Basti to her house by the side of a railway track, at that time the appellant and co-accused Rintu @ Narottam Naik lifted her and made her lie under the railway bridge. She has further stated that making her naked, first the appellant forcibly raped her and then the co-accused Rintu committed rape on her. She has further stated that making her naked, first the appellant forcibly raped her and then the co-accused Rintu committed rape on her. The victim further stated that after the occurrence, when she came to a nearby household, she was provided with cloth to cover her body and her husband P.W.13 came there and she narrated the incident before her husband who took her to the police station where the F.I.R. was lodged. The victim in the cross-examination has specifically stated that apart from the appellant and co-accused Rintu @ Narottam Naik, six other accused persons were present at the spot. She has further stated that she had got acquaintance with the appellant but had no enmity with him. She further stated that she was four months pregnant by then and during course of occurrence, she sustained injuries on her breast. Nothing substantial has been elicited in the cross examination of the victim to discard her version. At this stage, coming to the evidence of the doctor (P.W.14), it is found that she examined the victim on 9.2.2008 at Government Hospital, Barbil and noticed that there were multiple healed abrasions all over her body, especially on the buttocks, lower thigh, arm and legs suggestive of friction on the rough surface and the age of the injuries were within two to five days. The doctor further opined that the victim was 16 to 18 weeks pregnant at the time of her examination and she found there were old hymeneal tears present. She further stated that the symptom suggested that the victim was exposed to sexual intercourse previously. The doctor proved her medical examination report Ext.5. Thus the evidence of the victim that she was subjected to gang rape is corroborated by the medical evidence. The victim has also disclosed about the incident before her husband (P.W.13) and accordingly the name of the appellant finds place in the First Information Report which was lodged on 08.02.2008 at Bolani Outpost. 8. The contentions of the learned amicus curiae that there was two days delay in lodging the First Information Report for which the prosecution case should not be believed, is not acceptable. In a case of rape, the delay in lodging the First Information Report is not a factor to disbelieve the prosecution case. 8. The contentions of the learned amicus curiae that there was two days delay in lodging the First Information Report for which the prosecution case should not be believed, is not acceptable. In a case of rape, the delay in lodging the First Information Report is not a factor to disbelieve the prosecution case. The victim of rape and their family members are ordinarily reluctant to approach the police because of family prestige and after making up their mind to fight for the cause of justice, ultimately they decide to take recourse of the law and in the present case when the occurrence has taken place on 6.2.2008 in the evening hours and the F.I.R. was lodged on 8.2.2008, it cannot be said that there was such an inordinate delay which would be sufficient to create doubt about the prosecution case. The further contention of the learned amicus curiae that the victim was pregnant for 16-18 weeks at the time of occurrence and in that case, had she been subjected to gang rape, there would have been abortion is an hypothetical argument as nothing has been put to the doctor who examined the victim in that respect. There are some minor contradictions in the statement of the victim made during chief examination vis-a-vis her cross-examination relating to number of persons participating in the crime but since there are no inconsistencies so far as the involvement of the appellant and the co-accused Rintu, in my humble view, the contradictions which are very insignificant do not affect the credibility of the rape victim in any manner. So far as the chemical examination report is concerned, it appears that the saree, torn saya, blood sample, pubic hair, vaginal swab of the victim were sent for chemical examination. The report indicates that blood and semen stains could not be detected in the wearing apparels of the victim. Even though the blood and semen stain could not be detected on the wearing apparels of the victim, it is not a ground to reject the prosecution case inasmuch as it is the prosecution case that the victim was raped while she was in a complete naked position and she was provided with one cloth from the nearby household. Even though the blood and semen stain could not be detected on the wearing apparels of the victim, it is not a ground to reject the prosecution case inasmuch as it is the prosecution case that the victim was raped while she was in a complete naked position and she was provided with one cloth from the nearby household. Therefore, as at the time of forcible sexual intercourse, the victim was not wearing any saree and saya and not using those apparels after the occurrence, the non-finding of the semen stain or blood stain on her wearing apparels is not a factor to disbelieve the prosecution case. The evidence of the victim is not only clear, clinching, trustworthy, reliable and above board but the same also gets corroboration from the medical evidence. The seizure of torn saya is an additional factor which lends support to her testimony. The disclosure made by the victim immediately after the occurrence before her husband is admissible as res gestae under section 6 of the Evidence Act. Therefore, I do not find any infirmity or illegality in the impugned judgment and order of conviction of the learned trial Court and accordingly, I am of the view that the learned trial Court has rightly found the appellant guilty under section 376 (2)(g) of IPC. 9. So far as sentence is concerned, the appellant is in custody since 07.11.2009 and he had undergone about nine years and ten months of imprisonment inasmuch as throughout during trial as well as during pendency of the appeal, the appellant was not released on bail. Section 376(2)(g) of the Indian Penal Code prescribes minimum punishment for ten years which may extend to life and shall also be liable to fine. However, it is provided that the Court may for adequate and special reasons can impose a sentence of imprisonment of either description for a term of less than ten years. Therefore, in a case of gang rape, unless there are any adequate or special reasons, the Court is not empowered to impose any sentence lesser than the minimum as prescribed under the statute. Therefore, in a case of gang rape, unless there are any adequate or special reasons, the Court is not empowered to impose any sentence lesser than the minimum as prescribed under the statute. In the present case, nothing has been brought on record and nothing has also been submitted by the learned amicus curiae to make out any adequate or special reasons to reduce the sentence of imprisonment and since minimum sentence has been imposed, I also find there is no infirmity in the same. By passing a lenient sentence in a serious offence like gang rape, the punishment would lose its deterrent effect. Passing of appropriate sentence is always in the interest of society. The conduct of the appellant and the defenceless and unprotected state at the victim cannot be lost sight of while awarding sentence in an appropriate manner. Therefore, I am of the view that the impugned judgment and order of conviction of the appellant under section 376(2)(g) of the Indian Penal Code and sentence as imposed by the learned trial Court vide impugned judgment and order dated 18.12.2010 is legal, proper and justified. 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, Keonjhar 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 judgment be sent to the District Legal Services Authority, Keonjhar 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. Before parting with the case, I would like to put on record my appreciation to Mr. Abinash Padhi, the learned counsel for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to his professional fees which is fixed at Rs.5,000/-. Accordingly, the criminal appeal being devoid of merits, stands dismissed.