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2019 DIGILAW 577 (ORI)

Nrusingha Charan Dash @ Babulu v. State of Odisha

2019-09-12

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. A girl child is a divine gift in the life of her parents. She is like a pearl in their hands. God alone makes life in the hiddenness of the womb of the mother. Carrying all hopes and expectations, a girl child comes to this world. She is so simple, so cute and so beautiful. Her eyes are full of sweet dreams. She is like an uncut diamond. As an uncut diamond is shaped in any particular form by a professional cutter and polished whereafter it becomes more valuable, more beautiful; similarly if the girl child gets good environment, good guidance, good education, she grooms up into a better human being. Unfortunately, every girl child does not get such opportunity for which she is not shaped properly. Due to fault in shaping and lack of awareness among parents, family members and guardians that child sexual abuse can occur at any time and in a variety of settings, including home, school or at work place and most often the offenders are relatives of the child, family friends, neighbours, close acquaintances and even the teachers, she becomes a victim of sexual abuse. Non-taking of effective steps at right time to prevent the situations happening in which such sexual abuse are committed, gives scope to the offender to commit the crime easily and thereby leading the victim to suffer a long-term depression, post-traumatic stress disorder, pain and anxiety. Simplicity is good to certain extent but it should not lead to stupidity in trusting a wrong person who can cause irreparable harm to the victim. The appellant Nrusingha Charan Dash @ Babulu faced trial in the Court of learned 2nd Additional Sessions Judge, Bhubaneswar in S.T. Case No.02/12 of 2008 for commission of offences punishable under sections 376(2)(f) and 506(II) of the Indian Penal Code on the accusation that on 27.01.2008 at about 7.00 p.m. in Vani Vidya Mandir School, Palasapalli, Bhubaneswar, he committed rape on the victim who was a minor girl under 12 years of age and also committed criminal intimidation by threatening the victim to do away with her life with intent to cause alarm in her mind. The learned trial Court vide impugned judgment and order dated 14.05.2008, found the appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for one year for the offence under section 376(2)(f) of the Indian Penal Code and to undergo R.I. for one year and to pay a fine of Rs.500/- (rupees five hundred), in default, to undergo rigorous imprisonment for three months for the offence under section 506(II) of the Indian Penal Code and both the substantive sentences were directed to run concurrently. 2. The prosecution case as per the first information report lodged by one Sukanti Sahoo (P.W.5), the mother of the victim on 28.01.2008 before the Inspector in-charge of Khurda Mahila police station is that she was staying with her family in a rented house in Bhoi Sahi of Punama gate, Bhubaneswar and on 27.01.2008 she had been to attend her works and at that time the petitioner took the victim to a school situated at Palasapalli on the pretext of participating in a feast and there he committed rape on the victim and also threatened the victim with dire consequence not to disclose about the occurrence before anybody. On such report lodged by P.W.5, Khurda Mahila P.S. Case No.16 of 2008 was registered against the appellant under sections 376(2)(f)/506 of the Indian Penal Code by the IIC of Mahila police station, Smt. Bilasini Nayak who directed S.I. of Police namely Smt. Sandhyarani Sahoo (P.W.10) to take up investigation of the case. During course of investigation, P.W.10 seized the Chadi and Frock of the victim which she was wearing at the time of occurrence as per seizure list (Ext.2) and sent the victim girl for medical examination. She visited the spot which is Vani Vidya Mandir, Palasapalli, prepared the spot map (Ext.8), examined the witnesses including the teachers of the school, arrested the appellant on 28.01.2008 and seized his wearing apparels under seizure list (Ext.6/1) and on the next day, she sent the appellant for medical examination on police requisition. The sample of semen and pubic hair of the appellant were collected by the Medical Officer and it was seized as per seizure list Ext.10. The sample of semen and pubic hair of the appellant were collected by the Medical Officer and it was seized as per seizure list Ext.10. The statement of the victim was recorded under section 164 of Cr.P.C. and the wearing apparels of the victim as well as of the appellant were sent to S.F.S.L., Rasulgarh through the learned S.D.J.M., Bhubaneswar for chemical examination. The I.O. also seized the school admission register of Gosa Gareswar Primary School where the victim was a student in the year 2003 on production by the Headmistress in-charge of the School under seizure list Ext.12 and gave it in the zima of the Headmistress. She also obtained the chemical examination report (Ext.14) and on completion of investigation, submitted charge sheet against the appellant on 31.01.2008 under sections 376(2)(f) and 506 of the Indian Penal Code. 3. After filing of charge sheet, the case was committed to the Court of Session for trial observing due committal procedure where the learned trial Court charged the appellant on 01.03.2008 under sections 376(2)(f)/506(II) 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 twelve witnesses. P.W.1 Biswanath Behera was the landlord of the house where the informant and the victim were staying on rent and he stated the age of the victim to be nine years and further stated that he came to know from the informant on 27.01.2008 at about 8 p.m. about the commission of rape on the victim by the appellant. P.W.2 Smt. Subashini Sahoo though stated the age of the victim was ten years but she did not support the prosecution case for which she was declared hostile. P.W.3 Dillip Kumar Sahoo is the scribe of the first information report. P.W.4 Smt. Jagyaseni Pradhan did not support the prosecution case for which she was declared hostile P.W.5 Smt. Sukanti Sahoo is the informant of the case and happens to be the mother of the victim. P.W.3 Dillip Kumar Sahoo is the scribe of the first information report. P.W.4 Smt. Jagyaseni Pradhan did not support the prosecution case for which she was declared hostile P.W.5 Smt. Sukanti Sahoo is the informant of the case and happens to be the mother of the victim. She stated that the age of the victim was ten years at the time of occurrence and further stated that the victim disclosed before her about the commission of rape on her by the appellant in the school and that the appellant threatened her with dire consequence. She further stated to have noticed injury on the private part of the victim. According to her, the date of birth of the victim was 10.07.1998. She is also the witness to the seizure of the wearing apparels of the victim under seizure list Ext.2. P.W.6 Dr. Susama Mishra who was attached to Capital Hospital, Bhubaneswar as Gynecology Specialist examined the victim on police requisition on 28.01.2008 and proved her report (Ext.4). According to her, the age of the victim was below 12 years at the time of her examination. She further noticed a linear abrasion on the lower lip of the victim and injury on both sides of her labia majora which was suggestive of forceful penetration of the male organ. P.W.7 Santosh Patra was a teacher Vani Vidya Mandir, Pallaspalli, who stated about the farewell feast being organized in the school for the outgoing 10th class students in the school and further stated that the appellant had come to the school at about 5.00 p.m. with a small girl to clean the class room and to take away the surplus food items and that the keys of the school were handed over to the appellant asking him to lock it after taking the food items. P.W.8 Smt. Mamata Mallick was the constable attached to Mahila police station, Bhubaneswar who took the victim to Capital Hospital for her medical examination on the basis of the command certificate issued by the Investigating Officer and she also produced the Frock and Chadi of the victim before the Investigating Officer after her medical examination which were seized under seizure list Ext.2. She also stated about the seizure of the wearing apparels of the appellant under seizure list Ext.6/1. She also stated about the seizure of the wearing apparels of the appellant under seizure list Ext.6/1. P.W.9 is the victim who stated in detail about the occurrence and how the appellant committed rape on her and also threatened her. P.W.10 Smt. Sandhyarani Sahoo was the S.I. of Police Mahila police station who is the investigating officer. P.W.11 Dr. Sarbeswar Acharya was the Specialist in F.M.T., Capital Hospital, Bhubaneswar who examined the appellant on police requisition on 29.01.2008 and found no injury on his person but stated that the appellant was capable of sexual intercourse. He proved his report Ext.15. P.W.12 Smt. Basanti Kumar Dei was the Headmistress in-charge of Gosa Gareswar Primary School where the victim was prosecuting her studies in 2003. She proved the date of birth of the victim as reflected in the school admission register to be 10.07.1998. The prosecution exhibited sixteen documents. Ext.1 is the written F.I.R., Exts.2,6/1, 10 and 12 are the seizure lists, Ext.3 is the report of Radiologist, Ext.4 is the medical examination report, Ext.5 is the requisition sent by P.W.6 to Radiologist, Ext.8 is the spot map, Ext.9 is the medical requisition of accused, Ext.11 is the forwarding report, Ext.13 is the zimanama, Ext.14 is the chemical examination report, Ext.15 is the report of P.W.11 and Ext.16 is the admission register. The prosecution proved four material objects. M.O.I is the Frock of the victim, M.O.II is the Chadi of the victim, M.O.III is the pant of the appellant and M.O.IV is the shirt of the appellant. 5. The defence plea of the appellant is one of denial. 6. The learned trial Court after analysing the evidence on record and relying upon the evidence of the prosecution witnesses which is amply corroborated by the medical evidence and the contemporary document like school admission register came to hold that the age of the victim was about ten years at the time of occurrence which took place on 27.01.2008. The learned trial Court further held that there is no material on record to suggest that the victim was a tutored witness rather other witnesses corroborated her evidence in all material particulars. The learned trial Court further held that there is no material on record to suggest that the victim was a tutored witness rather other witnesses corroborated her evidence in all material particulars. The learned trial Court further held that the evidence of P.W.5, the informant completely corroborated the evidence of the victim that she accompanied the appellant to the school in the evening hours and also the victim disclosing about the occurrence in details before her. The learned trial Court after analyzing the evidence of the doctors, the medical examination reports and the evidence of other witnesses came to hold that there is complete corroboration to the evidence of the victim in all materials particulars and the presence of the injury on the inner side of her private part and presence of the injury on her lip corroborates her evidence regarding the fact that appellant committed rape on her. Accordingly, the learned trial Court came to hold that the prosecution has successfully proved a case under sections 376(2)(f)/506(II) of the Indian Penal Code against the appellant beyond all reasonable doubt. 7. When the matter was called in the first hour for hearing, the learned counsel for the appellant was not present. Since it is an appeal of the year 2011 and the appellant is in judicial custody since 29.01.2008, Mr. Akash Bhuyan was engaged as Amicus Curiae and he was supplied with the paper book and given time to prepare the case. He placed the impugned judgment, F.I.R. as well as the evidence of the witnesses. It is the contention of the learned counsel for the appellant that one of the essential ingredients for the offence under section 376(2)(f) of the Indian Penal Code is that the victim should be below twelve years of age but the evidence adduced by the prosecution in that respect is lacking and the conclusion arrived at by the learned trial Court that the victim was aged about ten years at the time of occurrence is not proper. It is further contended that the evidence of the doctor (P.W.11) who examined the appellant on 29.01.2008 indicates that he found no injury on the person of the appellant and his further statement that there was probability of injuries being caused on the private part of the male person if he commits rape on a girl of ten to twelve years of age falsifies that the appellant committed rape on the victim. It is submitted that the chemical examination report indicates no semen stain or blood on the wearing apparels of the victim which also goes against commission of rape. The learned counsel further argued that the teacher of the school who was examined as P.W.7 has stated that the appellant was given the keys of the rooms of the ground floor where the feast was held and the rape is alleged to have been committed in the first floor and the said witness has stated that the keys of the other rooms were the Headmaster. It is argued that since there is no evidence that the keys of the first floor rooms were also handed over to the appellant, the evidence of the victim that rape was committed in one of the rooms of first floor appears to be an improbable story and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Jyoti Prakash Patra, learned Additional Standing Counsel appearing for the State of Odisha on the other hand supported the impugned judgment and submitted that the finding of the learned trial Court relating to the age of the victim to be less than ten years is not only based on the oral evidence of the victim, her mother (P.W.5) and other witnesses like P.W.1 and P.W.2 but it is also based on the entry relating to the date of birth made in the school admission register as well as on the basis of the ossification test report. It is further submitted that when the age of the victim has not been challenged in the cross-examination of any witnesses, it cannot be said that the learned trial Court has arrived at a wrong finding holding the age of the victim to be ten years at the time of occurrence. It is further submitted that when the age of the victim has not been challenged in the cross-examination of any witnesses, it cannot be said that the learned trial Court has arrived at a wrong finding holding the age of the victim to be ten years at the time of occurrence. Learned counsel for the State further argued that the evidence of the victim is very clear and appears to be trustworthy and nothing has been elicited in the cross-examination to disbelieve her evidence and the immediate disclosure of the occurrence before her mother (P.W.5) by the victim is another feature which strengthens the prosecution case. He further submitted that the victim was examined by the doctor on the next day of occurrence and the doctor has categorically stated that she noticed injury on the labia majora on both sides of the inner surface and further stated that there was also injury on the lower lip of the victim and the injury on the labia majora suggests forcible penetration of the male organ. Learned counsel submitted that even though no semen stain or blood stain was noticed on the wearing apparels of the victim on chemical analysis but there is no evidence of ejaculation and when penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape as per the explanation provided under section 375 of the Indian Penal Code and the evidence of the victim gets corroboration from other material evidence including the medical evidence, it cannot be said that the learned trial Court has committed any illegality in holding the appellant guilty under sections 376(2)(f) and 506(II) of the Indian Penal Code. 8. Adverting to the contentions raised by the learned counsel for the respective parties and coming to the offence under section 376(2)(f) of the Indian Penal Code which prescribes punishment for commission of rape on a woman when she is under twelve years of age, the prosecution in order to prove the charge seems to have relied upon the oral evidence of the victim (P.W.9), her mother (P.W.5) and above all P.Ws. 1 and 2 and documentary evidence like school admission register entry relating to the date of birth deposed to by P.W.12, the Headmistress in-charge of the school as well as the medical examination report of the victim proved by the doctor (P.W.6). 1 and 2 and documentary evidence like school admission register entry relating to the date of birth deposed to by P.W.12, the Headmistress in-charge of the school as well as the medical examination report of the victim proved by the doctor (P.W.6). The victim on being examined as P.W.9 has stated her age to be ten years on the date of her deposition which was recorded on 29.04.2008. She stated that the occurrence in question took place on 27.01.2008. The mother of the victim being examined as P.W.5 has stated that the victim was ten years old at the time of occurrence and her date of birth was 10th July 1998. The evidence of the victim as well as her mother relating to the age factor has not been challenged by the defence. P.Ws.1 and 2 have also stated that the victim was nine years and ten years respectively. Their evidence has also not been challenged by the defence. The Headmistress in-charge of the Primary School where the victim was prosecuting her studies in the year 2003 on being examined as P.W.12 stated that in the school admission register, the date of birth of the victim has been mentioned as 10.07.1988 and she proved the school admission register which was marked as Ext.16 and the same was given in her zima by the police. Though P.W.12 has stated in the cross-examination that she was not the Headmistress when the entry was made but since it is a document which is relevant and admissible under section 35 of the Evidence Act, the entries in the register cannot be ignored on the ground that P.W.12 was not the author of the entries and she had no personal knowledge about the entries. (Ref:- Desh Raj Vs. Bodh Raj, (2008) AIR SC 632. The date of birth of the victim as per the school admission register which was produced in Court and marked as Ext.16 gets corroboration from the evidence of the mother of the victim. Nothing has been elicited in the cross-examination to show any kind of tampering in the school admission register, therefore, the evidence is to be accepted. The doctor (P.W.6) who examined the victim has also stated that she examined the clinical features of the victim and found there were 28 teeth on her two jaws. Nothing has been elicited in the cross-examination to show any kind of tampering in the school admission register, therefore, the evidence is to be accepted. The doctor (P.W.6) who examined the victim has also stated that she examined the clinical features of the victim and found there were 28 teeth on her two jaws. The breast was not developed and the auxiliary hair and pubic hair were not developed and the victim had not attended the puberty and from the physical features and radiologist report, she opined the age of the victim to be below twelve years of age at the time of her examination. Nothing has been elicited in the cross-examination to disbelieve such finding given by the doctor. The learned trial Court after careful analysis of the oral, documentary evidence as well as medical evidence has held the age of the victim to be about ten years at the time of occurrence. I find no infirmity in such finding of the learned trial Court relating to the age of the victim. Therefore, the first ingredient of the offence under section 376(2)(f) of the Indian Penal Code that the victim should be below twelve years of age is satisfied in this case. Coming to the commission of rape on the victim (P.W.9), it appears that prior to the recording of evidence, the victim was questioned by the learned trial Court on various aspects about her friends, class, teachers and some general questions were put to her and the Court found that she was capable of giving rational answers. The victim stated in her evidence that on 27.01.2008 she accompanied the appellant to Palasuni School and on reaching there, she found six students and two teachers were there and on seeing them, the teacher asked the appellant to clean the rooms of the school and then go back and thereafter the teachers and the students left the school. The victim stated in her evidence that on 27.01.2008 she accompanied the appellant to Palasuni School and on reaching there, she found six students and two teachers were there and on seeing them, the teacher asked the appellant to clean the rooms of the school and then go back and thereafter the teachers and the students left the school. The victim further stated that she and the appellant cleaned the school rooms of both the floors and thereafter the appellant asked her to accompany to the first floor to switch off the light and then they went to the upstairs and after switching off the lights of the rooms except one room, the appellant asked her to have a play and then the appellant made her lie on the ground and removed his pant, slept over her and inserted his private part inside her private part for which the victim felt pain and cried. The victim further stated that when she told the appellant that she would tell about the occurrence to her mother, the appellant pressed her mouth by his hand and only when she told not to tell about the occurrence, the appellant left her and in that process, she sustained injuries on her lips. The victim further stated that she came back and disclosed about the occurrence before her mother and then they went to the police station and her mother reported the occurrence before police. The evidence of the victim is corroborated by her mother (P.W.5) who has stated in detail as to how the victim was crying and disclosed before her that the appellant committed rape on her in the school and threatened her not to disclose about the occurrence. P.W.5 further stated that she noticed injury on the private parts of the victim. The immediate disclosure about the occurrence by the victim before her mother is admissible as res gestae under section 6 of the Evidence Act as it is a spontaneous statement connected with the fact in issue and there is no time interval for fabrication. There is no evidence that she had been tutored by anybody to depose against the appellant. The immediate disclosure about the occurrence by the victim before her mother is admissible as res gestae under section 6 of the Evidence Act as it is a spontaneous statement connected with the fact in issue and there is no time interval for fabrication. There is no evidence that she had been tutored by anybody to depose against the appellant. The victim (P.W.9) has stated in the cross-examination that there was no bleeding on her injury places and she denied the suggestion which was given by the defence that she rubbed the pant over her private part as she felt itching for which she sustained some injuries. The victim in the cross-examination specifically stated that the appellant pushed his private part only once inside her private part. It is not the case of the victim that there was any ejaculation or any kind of bleeding from the private part. Therefore, the non-finding of the semen stain and blood stain in the Frock and Chadi of the victim as per the chemical examination report is not fatal to the prosecution case. The doctor (P.W.6) has categorically stated that when she examined the victim on 28.01.2008, she found one linear abrasion on the lower lip slightly to the left side from the middle and injury on the labia majora on both sides of the inner surface of size 1/2 c.m. x 1/4 c.m. and the injuries were simple in nature and might have been caused by forceful sexual intercourse. The doctor specifically stated that the injury on the lower lip was possible if the mouth is pressed by the male person while committing rape and the presence of the abrasion on the inner surface of both sides of labia majora suggest forceful penetration of the male organ. Therefore, the evidence of the victim gets corroboration from the medical evidence. The doctor specifically stated that the injury on the lower lip was possible if the mouth is pressed by the male person while committing rape and the presence of the abrasion on the inner surface of both sides of labia majora suggest forceful penetration of the male organ. Therefore, the evidence of the victim gets corroboration from the medical evidence. The doctor who has examined the appellant no doubt has stated that he did not find any injury on the person of the appellant and further stated that there is possibility of injury on the private part of a male person if there is rape on a girl of ten to twelve years of age but it cannot be lost sight of the fact that the victim stated that the appellant pushed his private part only once inside her private part and in such circumstances, it cannot be said that the non-finding of any injury on the private part of the appellant is a factor to disbelieve the charge of rape against him particularly when as per the explanation proved under section 375 of the Indian Penal Code, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. The statement of the teacher (P.W.7) indicates that he had given the keys of the rooms of the ground floors to the appellant while leaving the room and the keys of the other rooms were with the Headmaster. Such a statement does not falsify the prosecution case that the rape was committed on the first floor as the victim specifically stated that after switching off the lights of the rooms except one room in the first floor, the appellant asked her to proceed to have a play and then made her lie on the ground and committed rape. No where it has been brought by the defence that all the rooms in the first floor were under lock and key and the keys were with the Headmaster. The teacher (P.W.7) has specifically stated that on 27.01.2008 at about 5.00 p.m. on being called, the appellant had come to the school with one small girl to take the surplus food items. The teacher (P.W.7) has specifically stated that on 27.01.2008 at about 5.00 p.m. on being called, the appellant had come to the school with one small girl to take the surplus food items. Even though he has not stated that the small girl was the victim but all the same it lends corroboration to the victim's evidence that she had been with the appellant to the school on the fateful day at the relevant time. Moreover, in the accused statement, when a question was put to the appellant that as per the evidence of the victim, he along with the victim reached the school and the teacher asked him to clean the school and to take away the surplus food items, the appellant replied as 'true'. Therefore, the presence of the victim with the appellant on the fateful day in the school has not been disputed. The evidence of the victim, her mother, the medical examination report which was proved by P.W.6 and the other surrounding circumstances lend corroboration to the prosecution case that the victim was subjected to rape on 27.01.2008 in the school premises by the appellant. When the prosecution has not only established the age of the victim to be below twelve years but also proved by adducing clinching evidence that she was subjected to rape, I am of the humble view that the learned trial Court is quite justified in convicting the appellant under section 376(2)(f) of the Indian Penal Code. 9. So far as the offence under section 506(II) of the Indian Penal Code is concerned, the victim has specifically stated that when after commission of rape, she felt pain and cried and told that she would tell about the occurrence to her mother, the appellant pressed her mouth by his hand and thereafter, the appellant assaulted her and also threatened her not to tell about the occurrence otherwise he would kill her. She disclosed about this aspect also before her mother (P.W.5) which is also corroborated by P.W.5. Thus, the learned trial Court has rightly held the appellant guilty of the offence under section 506(II) of the Indian Penal Code. 10. Section 376(2)(f) of the Indian Penal Code carries minimum punishment of ten years which has been imposed on the appellant and therefore, the order of conviction and the sentence imposed on the appellant is justified. Thus, the learned trial Court has rightly held the appellant guilty of the offence under section 506(II) of the Indian Penal Code. 10. Section 376(2)(f) of the Indian Penal Code carries minimum punishment of ten years which has been imposed on the appellant and therefore, the order of conviction and the sentence imposed on the appellant is justified. In view of the foregoing discussions, I find no illegality or infirmity in the impugned judgment of the learned trial Court in convicting the appellant of the offences charged and imposing the sentence as awarded which is accordingly upheld. In the result, the criminal appeal preferred by the appellant being devoid of merits, stands dismissed. 11. 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 and social background of the victim, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Khurda (Bhubaneswar) 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, Khurda (Bhubaneswar) 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. Akash Bhuyan, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.5,000/- (rupees five thousand only). Accordingly, the Criminal Appeal stands dismissed.