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2021 DIGILAW 319 (ORI)

Bipin Bhoi v. State Of Odisha

2021-07-22

S.K.SAHOO

body2021
JUDGMENT S.K. Sahoo, J. - The appellant Bipin Bhoi faced trial in the Court of learned Addl. Sessions Judge -cum- Judge, Special Court (POCSO), Dhenkanal in C.T. (Spl.) POCSO Case No.11 of 2015 for commission of offences punishable under sections 376(2)(i) and 506 (Part-I) of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter 'POCSO Act'). The learned trial Court vide impugned judgment and order dated 30.08.2018 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.25,000/- (rupees twenty five thousand), in default, to undergo further imprisonment for six months under section 6 of the POCSO Act and rigorous imprisonment for one year for the offence under section 506 (Part-I) of the Indian Penal Code and both the sentences were directed to run concurrently. No separate sentence was awarded for the offence under section 376(2)(i) of the Indian Penal Code in view of the provision under section 42 of the POCSO Act 2. The prosecution case, in short, is that on 05.04.2015 at about 10.00 a.m., the victim (P.W.1), who is a minor girl aged about twelve years had been to take bath to the nearby village tank and at that time, the appellant came there and lifted her to the Amari bush and there he made her lie down on the ground, removed her panti and committed rape on her. While leaving the place of occurrence, the appellant threatened the victim to kill her, if she would disclose the matter before anybody. While the victim was returning back home from the spot, the appellant was following her, but seeing the mother (P.W.2) of the victim, he fled away. The victim narrated about the occurrence before her mother. P.W.2 disclosed the matter before her husband after he returned from his work and then they went to Tumusinga police station on the same day and at about 9.00 p.m., P.W.2 lodged the written report which was scribed by one Subas of village Pandua as per her instruction who read over and explained the report to P.W.2 and after she found it to be correct, she signed on the report. P.W.15 Satyanarayan Pradhan, who was the Officer in-Charge of Tumusinga police station, on receipt of the written report from P.W.2, registered the same as F.I.R. (Ext.2) in Tumusingha P.S. Case No.29 dated 05.04.2015 under sections 376(2)(i) of the Indian Penal Code and 4 of the POCSO Act against the appellant. He took up investigation of the case and during course of investigation, he examined the informant (P.W.2), the victim (P.W.1) and recorded their statements. He proceeded to the village of the informant and examined other witnesses. He also proceeded to the spot but due to darkness at the spot, he returned back. On the next day of occurrence i.e. on 06.04.2015, the Investigating Officer seized the wearing apparels of the victim i.e. one blue, white and red mix colour nylon frock and one faded black colour panti as per seizure list vide Ext.4. He arrived at the spot on the next day and verified the same and prepared the spot map vide Ext.10. The victim was sent to S.D. Headquarters Hospital, Kamakhyanagar for medical examination and the vaginal swab of the victim was collected by the doctor and it was seized by the I.O. The statement of the victim under section 164 Cr.P.C. was recorded by the Magistrate on 07.04.2015. The appellant was arrested on 09.04.2015 and he was also sent for medical examination to S.D. Headquarters Hospital, Kamakhyanagar. The nail clippings, loose plucked hair, semen and wearing apparels of the appellant were seized as per the seizure list vide Ext.8 and the appellant was forwarded to Court on 10.04.2015. The Investigating Officer visited the school where the victim was prosecuting her studies and seized the school admission register from the headmaster as per seizure list vide Ext.5, which reflected that the date of birth of the victim to be 12.05.2004. The school admission register was handed over to the headmaster of the school on executing zimanama vide Ext.6. The headmaster of the school also furnished a certificate basing on the school admission register that the date of birth of the victim was 12.05.2004. The school admission register was handed over to the headmaster of the school on executing zimanama vide Ext.6. The headmaster of the school also furnished a certificate basing on the school admission register that the date of birth of the victim was 12.05.2004. The Investigating Officer obtained the medical examination report of the victim as well as the appellant and then he sent the material objects to the Director, State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for chemical examination through Court and on 25.05.2015, on completion of investigation, charge sheet was submitted against the appellant under sections 294/506/342/376(2)(i) of the Indian Penal Code read with section 6 of the POCSO Act. 3. After submission of charge sheet and commitment of the case to the Court of Session, the learned trial Court on 31.03.2016 framed the charges against the appellant as already stated and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. The defence plea of the appellant is one of denial and it is pleaded that he had been falsely implicated in the case. 5. During course of trial, in order to prove its case, the prosecution has examined as many as fifteen witnesses. P.W.1 is the victim who proved her signature in her 164 Cr.P.C. statement. She supported the prosecution case and stated about the commission of rape on her by the appellant. P.W.2 Basanti Bhoi is the mother of the victim, who is the informant in the case and she stated that the appellant fled away on noticing her and the victim narrated about the occurrence before her. P.W.3 Sarojini Bhoi stated about the disclosure made by P.W.2 about the occurrence before her. She suggested to P.W.2 to disclose about the occurrence before the mother of the appellant. P.W.4 Bhagabat Bhoi is the father of the victim (P.W.1) and husband of the informant (P.W.2), who stated that the P.W.1 and P.W.2 disclosed the occurrence before him. P.W.5 Kasinath Patra, who is a co-villager of the informant, is a witness to the seizure of wearing apparels of the victim vide seizure list Ext.4. P.W.6 Subhranshu Kumar Mohanta is the scribe of the F.I.R. (Ext.2). P.W.5 Kasinath Patra, who is a co-villager of the informant, is a witness to the seizure of wearing apparels of the victim vide seizure list Ext.4. P.W.6 Subhranshu Kumar Mohanta is the scribe of the F.I.R. (Ext.2). P.W.7 Bikram Kumar Behera, who was the Headmaster in-charge of Udayagiri Primary School is a witness to the seizure of school admission register vide seizure list Ext.5 and he took zima of that register vide zimanama (Ext.6). P.W.8 Sua Bhoi is a co-villager, who stated to have heard about the occurrence. P.W.9 Dibakar Bhoi, who was working as a teacher at Udayagiri Primary School, is a witness to the seizure vide seizure list Ext.5. P.W.10 Hemant Kumar Bhutia, who was working as Constable at Tumusingha Police Station, is a witness to the seizure vide seizure list Ext.7. P.W.11 Prasanna Kumar Dehury, who was working as Constable in Tumusingha Police Station, is a witness to the seizure vide seizure list Ext.8. P.W.12 Padmabati Bhoi, who is a neighbour of P.W.2, did not support the prosecution case. P.W.13 Sudhanshu Sekhar Mishra, who was the Gynic Specialist at Sub-divisional Headquarters Hospital at Kamakhyanagar examined the victim (P.W.1) on police requisition and proved the medical examination report vide Ext.3/1. P.W.14 Dr. Dillip Ku. Kar, who was the Pediatric Specialist at Sub-divisional Headquarters Hospital at Kamakhyanagar, medically examined the appellant on police requisition and noticed some injuries on the person of the appellant and proved the medical examination report vide Ext.9. P.W.15 Satyanarayan Pradhan was the Officer in-charge of Tumusingha Police Station and he is the Investigating Officer of the case. The prosecution exhibited eleven numbers of documents. Ext.1 is the 164 Cr.P.C. statement of the victim, Ext.2 is the F.I.R., Ext. 3/1 is the medical examination report of the victim, Ext.4 is the seizure list of the wearing apparels of the victim, Ext.5 is the seizure list, Ext.6 is the zimanama, Ext.7 is the seizure list dated 06.04.2015, Ext. 8 is the seizure list dated 09.04.2015, Ext.9 is the medical examination report of the appellant, Ext.10 is the spot map and Ext.11 is the certificate regarding the date of birth of the victim. No witness was examined on behalf of the defence. 6. 8 is the seizure list dated 09.04.2015, Ext.9 is the medical examination report of the appellant, Ext.10 is the spot map and Ext.11 is the certificate regarding the date of birth of the victim. No witness was examined on behalf of the defence. 6. The learned trial Court on analyzing the oral as well as documentary evidence on record, has been pleased to hold that the final opinion of the doctor that there was no penetration or attempt to penetration of penis of the appellant into vagina of the victim is not acceptable. The findings of the doctor that bodily injuries on the victim are not suggestive of forceful sexual intercourse are also not acceptable. It is further held that a clear, cogent and trustworthy evidence of the victim and other witnesses cannot be brushed aside basing on the opinion of the doctor which are contrary to his own finding that he noticed injuries on genitals of the victim. The learned trial Court further held that the appellant had sustained injuries on the left elbow and the back of the abdomen and the age of the injuries tallies with the date of occurrence. It was further held that the evidence of P.W.1, P.W.2 and P.W.4 are sufficiently corroborated by the evidence of P.W.3 and P.W.8 so also to some extent from the evidence of P.W.12 and therefore, such evidence cannot be simply ignored merely because the doctor submitted a report contrary to his own finding on injury he noticed on the genitals of the victim. Learned trial Court further held the victim to be under twelve years of age at the time of occurrence and that prosecution has successfully established the charges under sections 376(2)(i) and 506 (Part-I) of the Indian Penal Code and section 6 of the POCSO Act against the appellant. 7. Mr. Niranjan Singh (1), learned counsel appearing for the appellant strenuously contended that the learned trial Court has not appreciated the evidence on record in its proper perspective and the evidence of the victim indicates that she was tutored by her mother to depose against the appellant in Court. 7. Mr. Niranjan Singh (1), learned counsel appearing for the appellant strenuously contended that the learned trial Court has not appreciated the evidence on record in its proper perspective and the evidence of the victim indicates that she was tutored by her mother to depose against the appellant in Court. It is further argued that the statement of the victim that the appellant was following her after the occurrence and seeing her mother, he fled away is contradictory to her statement recorded under section 164 of Cr.P.C., in which she stated that after the occurrence, the appellant left the spot giving her threat. It is further argued that since the doctor has stated on examining the victim that the inflammation, redness and tenderness noticed on the labia minora of the victim are possible due to infection and the labia majora was also normal, it rules out the penetration into the vagina of the victim as has been stated in her evidence. It is further argued that the chemical examination report indicates that no blood and semen stains could be noticed on the frock and panti of the victim and also in her vaginal swab which also negatives the prosecution case of rape and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Anupam Rath, learned Additional Standing Counsel for the State, on the other hand, supported the impugned judgment and contended that by way of oral as well as documentary evidence, it has been clearly proved that the victim was of twelve years of age at the time of occurrence. The evidence of the victim is very clear, cogent, trustworthy and nothing has been elicited in her cross-examination to disbelieve her evidence. He further submitted that immediately after the occurrence, the victim disclosed about the occurrence before her mother (P.W.2), which is admissible as per the provision under section 6 of the Evidence Act and there was no earthly reason for the victim and her family members to implicate the appellant falsely in the charge of rape having far reaching consequences on the future of the victim as well as their family. He further submitted that the discrepancy relating to the appellant following the victim is a minor contradiction and on that score, the evidence of the victim cannot be disbelieved in toto. He further submitted that the discrepancy relating to the appellant following the victim is a minor contradiction and on that score, the evidence of the victim cannot be disbelieved in toto. He further argued that the victim cannot be said to be a tutored witness, merely because she stated that her mother had instructed her how to depose in Court while coming to the Court. The statement of the victim is consistent throughout not only before her mother immediately after the occurrence but also in her statement before police and in her statement before the Magistrate and also in Court at the time of trial. While concluding the argument, it is argued that the chemical examination report, which indicates that the blood, semen stains were not detected on the frock and panti of the victim and also in the vaginal swab cannot be a factor to discard the prosecution case as there is no clear evidence as to whether any semen was discharged by the appellant in the private parts of the victim and the panti of the victim had also been removed by the appellant at the time of occurrence and there is no evidence that the victim put on the panti after the occurrence. It is argued that the manner in which the appellant committed the offence of rape on a minor girl aged about twelve years is really shocking and the substantive sentence of ten years imposed by the learned trial Court is minimum for the offence under section 6 of the POCSO Act so also under section 376(2)(i) of the Indian Penal Code prior to its amendment whereafter by omitting section 376(2)(i) of the Indian Penal Code, a specific sub-section (3) has been inserted under section 376 of the Indian Penal Code prescribing punishment for commission of rape on a women under sixteen years of age to be not less than twenty years but which may extend to imprisonment for life and similarly in section 6 of the POCSO Act, it has been enhanced to not less than twenty years but which may extend to imprisonment for life. It is argued that in absence of any infirmity in the impugned judgment, the appeal should be dismissed. 8. It is argued that in absence of any infirmity in the impugned judgment, the appeal should be dismissed. 8. Adverting to the contentions raised by the learned counsel for the respective parties and coming to the age of the victim (P.W.1) at the time of occurrence, as per the prosecution case, the occurrence took place on 05.04.2015. At the time of recording of her statement under section 164 of Cr.P.C. on 07.04.2015, she stated her age to be ten years and that she was a student of Class-V. She stated her age to be twelve years when she deposed during trial as P.W.1 on 02.11.2016. The school admission register of the victim was seized by the Investigating Officer, which reflected her date of birth as 12.05.2004. The doctor (P.W.13) has also stated that the age of the victim was in between eleven to fourteen years. To attract the ingredients of the offence under section 376(2)(i) of the Indian Penal Code, it is first necessary to prove that the victim was under sixteen years of age at the time of occurrence. Similarly, for commission of offence under section 6 of the POCSO Act i.e. aggravated penetrative sexual assault on a child, under section 2(d) of the said Act, it is stated that the 'child' means any person below the age of eighteen years. The learned counsel for the appellant failed to show anything in the evidence adduced by the prosecution that the observation of the learned trial Court that the victim was under twelve years of age at the time of occurrence was not correct. Therefore, I am of the humble view that the learned trial Court has correctly assessed the age of the victim to be under twelve years. 9. The victim (P.W.1) stated in her evidence that on 05.04.2015 at about 10.00 a.m., while she had been to the tank to take her bath, the appellant came there, lifted her to Amari bush, made her flat on the ground, removed her panti, slept over her and did a nasty job and then the appellant left the place giving threat to her to kill in case she disclose the matter before anybody. Learned trial Court in exercise of its power under section 165 of the Evidence Act, put some questions to the victim for clarification as to what she meant by 'nasty job'. Learned trial Court in exercise of its power under section 165 of the Evidence Act, put some questions to the victim for clarification as to what she meant by 'nasty job'. The questions put by the Court and the answers given by the victim are quoted herein below: "Q.1. What do you mean by saying that the accused did a nasty job? Ans: The accused committed rape on me. Q.2. What do you mean by rape committed by accused? Ans: The accused after removing his pant and my pant penetrated his penis to my vagina several times." Section 165 of the Evidence Act confers vast and unrestricted powers on the trial Court to put any question it pleases in any form at any time, to any witness or to the parties about any fact relevant or irrelevant in order to discover the relevant facts. So, when during cross-examination, the Court interjected with a view to ascertain the correct position or the correct meaning of 'nasty job' as deposed to the victim in the chief examination, in my humble view, there was nothing wrong as the Court was within its power to do so. The victim further stated that while going to her house after the occurrence, she met her mother on the way and disclosed everything to her. Such evidence of the victim gets corroboration from the evidence of her mother (P.W.2). This evidence of the victim in that respect is relevant under section 6 of the Evidence Act as res gestae. To form a particular statement as part of the same transaction as required under section 6 of the Evidence Act, it must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after the occurrence. In the case of Gentela Vijayavardhan Rao -Vrs.-State of Andhra Pradesh, (1996) 6 SCC 241 , while discussing section 6 of the Evidence Act, the Hon'ble Supreme Court held that the principle or law embodied in section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. The victim further stated that the appellant was coming behind her and seeing her mother, he ran towards the jungle. P.W.2 also stated that by noticing her, the appellant fled away towards the forest. Referring to the 164 Cr.P.C. statement of the victim, though it was urged that the victim stated that after the occurrence, the appellant fled away from the spot giving threat to her and therefore, contradictory to the statement under section 164 Cr.P.C., but in my humble view, the same cannot be said to be such a major contradiction to falsify the evidence of the victim in its entirety. The learned counsel for the appellant urged that the statement of the victim that the appellant was following her after the occurrence appears to be very unnatural and ordinarily an accused after committing the crime would not come behind the victim of rape rather try to flee away. I am of the humble view that the conduct of a person, either as a witness or as an accused after the occurrence, may vary from person to person and it is not expected that everybody should react in a particular manner after the occurrence. An approach by a Court in discarding the evidence on the ground of absence of a particular type of reaction of a person, may be a witness or an accused would be wholly unrealistic and unimaginative way. An approach by a Court in discarding the evidence on the ground of absence of a particular type of reaction of a person, may be a witness or an accused would be wholly unrealistic and unimaginative way. It depends upon the upbringing of the person, his capacity to deal with adverse situation in life, his feelings and emotions. Therefore, it cannot be said that there was any such improbability feature in the conduct of the appellant following the victim for some time after the occurrence and then running away towards the jungle on seeing the mother of the victim. Thus, the testimony of the victim which has not been shaken in the cross-examination, can be safely relied upon as it appears to be clear, cogent and trustworthy. 10. The doctor (P.W.13) who examined the victim on 06.04.2016 i.e. the next day of occurrence at Sub-Divisional Headquarters Hospital, Kamakhyanagar has stated that though he did not notice any physical clue on the examination of clothing of the victim but he noticed signs of inflammation like redness and the tenderness present in her vestibule and labia minora area. In cross-examination, of course, the doctor has stated that the inflammation, redness and tenderness which he noticed on the labia minora of the victim would be possible due to infection and that the labia majora of the victim was normal but from this suggestion, it cannot be said that the doctor's evidence completely negatives the evidence of the victim (P.W.1) that the appellant penetrated his penis into her vagina for several times. Law is well settled that in the absence of corroboration to the statement of the prosecutrix from the medical evidence, her testimony cannot be discarded in toto. It has been consistently held by different Courts that 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 and it is not expected that a victim of rape to shield the real culprit and implicate someone falsely in sexual assault on her. 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. 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. Therefore, merely because the doctor (P.W.13) has noticed that the inflammation like redness and tenderness present in her vestibule and labia minora area and opined that it can also be possible by infection would not be a factor to disbelieve the evidence of the victim. 11. Coming to the argument advanced by the learned counsel for the appellant that the victim is a tutored witness, it cannot be accepted. The victim stated that her mother (P.W.2) instructed her how to depose in Court. She has not stated that P.W.2 instructed her as to what to depose in Court. The statement of the victim immediately after the occurrence before her mother, in her 164 Cr.P.C. statement and in her evidence during trial is consistent that the appellant committed rape on her. No doubt, as per the chemical examination report, no blood or semen stain were noticed in her frock and panti but as it appears that before commission of rape, the panti of the victim was removed by the appellant and there was no evidence of discharge of semen by the appellant or the victim again putting on the panti immediately after the occurrence. 12. In view of the foregoing discussions, I am of the humble view that not only the evidence of the victim is trustworthy but it gets corroboration from the evidence of her mother and other witnesses. It is established by the prosecution that the victim was under twelve years of age at the time of occurrence. I find no illegality or infirmity in the impugned judgment and order of conviction, which is accordingly upheld. 13. The learned trial Court has sentenced the appellant for the conviction of offence under section 6 of the POCSO Act and has not passed any separate sentence rightly under section 376(2)(i) of the Indian Penal Code in view of the mandates of section 42 of the POCSO Act. The minimum substantive sentence of ten years has been imposed under section 6 of the POCSO Act which is wholly justified. 14. The minimum substantive sentence of ten years has been imposed under section 6 of the POCSO Act which is wholly justified. 14. Learned counsel for the appellant argued that the appellant has been sentenced to pay a fine of Rs.25,000/- (rupees twenty five thousand), in default, to undergo further imprisonment for six months for commission of offence under section 6 of the POCSO Act in addition to the substantive sentence of rigorous imprisonment for ten years and since the appellant is extremely poor and he has filed the Jail Criminal Appeal, the said fine amount be reduced in the interest of justice. Considering the submission made by the learned counsel for the appellant, the fine amount of Rs.25,000/- (rupees five thousand) is reduced to Rs.5,000/- (rupees five thousand) and in default of payment of fine, the appellant shall undergo further imprisonment for a period of one month in addition to the substantive sentence of rigorous imprisonment for ten years. 15. In view of the evidence of the victim regarding threat given to her by the appellant after commission of the crime to kill her in case she would disclose the matter before anybody, the conviction of the appellant under section 506 (Part-I) of the Indian Penal Code and the sentence imposed thereunder by the learned trial Court is also fully justified. The sentences imposed on two counts as noted above shall run concurrently. 16. The compensation amount that has been fixed by the learned trial Court was to the tune of Rs.1,50,000/- (rupees one lakh fifty thousand) which was directed to be paid to the victim. In view of the age of the victim at the time of occurrence and the nature and gravity of the offence committed on the victim, I am of the view that the compensation amount should be enhanced and therefore, it is necessary to recommend the case of the victim to District Legal Services Authority, Dhenkanal to examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation under the Odisha Victim Compensation (Amendment) Scheme, 2018 as per the notification dated 20.10.2018 of Government of Odisha, Home Department. 17. Let a copy of the judgment be sent to the District Legal Services Authority, Dhenkanal for compliance. 18. 17. Let a copy of the judgment be sent to the District Legal Services Authority, Dhenkanal for compliance. 18. Lower Court's record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action. 19. Accordingly, subject to modification of fine amount for the conviction of the appellant under section 6 of the POCSO Act as stated above, the criminal appeal being devoid of merits, stands dismissed.