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2021 DIGILAW 482 (ORI)

Jugal Kishore Parichha v. State Of Odisha

2021-11-29

S.K.SAHOO

body2021
JUDGMENT S.K. Sahoo, J.- The appellant Jugal Kishore Parichha faced trial in the Court of the learned Sessions Judge -cum- Special Judge, Kandhamal, Phulbani in G.R. Case No.28 of 2014 for commission of offences punishable under sections 342, 376(2)(f)/511 and 506 of the Indian Penal Code read with sections 6/18 of the Protection of Children from Sexual Offences Act, 2012 (hereafter 'POCSO Act') and the learned trial Court vide impugned judgment and order dated 15.09.2016 though acquitted the appellant of the charges under sections 342 and 506 of the Indian Penal Code, however found him guilty under sections 376(2)(f)/511 of the Indian Penal Code and sections 6/18 of the POCSO Act and sentenced him to undergo R.I. for ten years on each count under sections 376(2)(f)/511 of the Indian Penal Code and sections 6/18 of the POCSO Act and the substantive sentences were directed to run concurrently. 2. The prosecution case, in short, as per the first information report lodged by Babita Nayak (P.W.2), the mother of the victim is that when she had been to her father's place at Nandagiri since seven days prior to the lodging of F.I.R. and staying there, the victim was staying with her father (appellant) at her paternal place in village Raikia. On 24.04.2014 in the evening hours at about 7.00 p.m., the victim telephoned her and requested her to take her back and she was not willing to stay in her house with the appellant. The informant brought the victim with her to her paternal place at Nandagiri on 25.04.2014, where the victim disclosed before her that the appellant took her inside one room in the backside of the house, locked the door and he himself became naked, pushed the victim on the floor and when the victim shouted, the appellant gagged her mouth by means of a cloth for which she could not shout. The appellant also threatened her with dire consequence and torn the clothes of the victim. The victim gave pushes to the appellant and fled away from that room. The informant changed the clothes of the victim. On the basis of such first information report before the Inspector in-charge of Raikia police station, Raikia P.S. Case No.26 dated 27.04.2014 was registered under sections 342, 354, 506 of the Indian Penal Code and the Inspector in-charge of Raikia police station directed A.S.I. Laxman Mallick (P.W.5) to take up investigation. The informant changed the clothes of the victim. On the basis of such first information report before the Inspector in-charge of Raikia police station, Raikia P.S. Case No.26 dated 27.04.2014 was registered under sections 342, 354, 506 of the Indian Penal Code and the Inspector in-charge of Raikia police station directed A.S.I. Laxman Mallick (P.W.5) to take up investigation. During course of investigation, P.W.5 examined the informant and other witnesses including the victim, visited the spot, prepared the spot map (Ext.4), seized the wearing apparels of the victim on production of P.W.2 as per seizure list Ext.3, arrested the appellant on 27.04.2014 and forwarded him to Court on 28.04.2014. The Investigating Officer also issued requisition to the Headmistress of ST Catherin Girls High School in order to cause production of the age proof certificate of the victim. Accordingly, the Headmistress furnished the information by way of a letter marked as Ext.5. Subsequently, the Investigating Officer made a prayer to the Special Court to add offence under section 8 of the POCSO Act. The statement of the victim was recorded under section 164 Cr.P.C. Another prayer was made to the Special Court to add offences under sections 376/511 of the Indian Penal Code and then P.W.5 handed over the charge of investigation to the Inspector in-charge Birala Chandra Sahis (P.W.4) on 20.07.2014 who examined two witnesses and on completion of investigation, submitted charge sheet against the appellant under sections 376/511/506 of the Indian Penal Code read with section 8 of the POCSO Act. 3. During course of trial, in order to prove its case, the prosecution has examined as many as six witnesses. 3. During course of trial, in order to prove its case, the prosecution has examined as many as six witnesses. P.W.1 is the victim, P.W.2 Babita Nayak is the informant, who is also the mother of the victim, P.W.3 Mayajini Pradhan was the Home Guard of Raikia police station, who accompanied the Investigating Officer near the house of P.W.2 where seizure of the wearing apparels of the victim was made on production by P.W.2 as per seizure list Ext.3, P.W.4 Birala Chandra Sahis and P.W.5 Laxman Mallick are the two Investigating Officers and P.W.6 Smt. Gitarani Samantaray is the Headmistress of ST Catherin Girls High School, who on the written requisition of the Investigating Officer produced a letter relating to the date of birth of the victim based on the entry made in the school admission register and she also proved the admission register of the victim showing her date of birth as 21.07.2002. The prosecution exhibited ten documents. Ext.1 is the 164 Cr.P.C. statement of the victim (P.W.1), Ext.2 is the F.I.R., Ext.3 is the seizure list in respect of seizure of tore shirt of P.W.1, Ext.4 is the spot map, Ext.5 is the letter of Headmaster, ST. Catherine's Girls' High School, Raikia, Ext.6 is the prayer of P.W.5 to add offence under section 8 of the POCSO Act, Ext.7 is the prayer of P.W.5 to record the statement of victim, Ext.8 is the prayer of P.W.5 to add offences under sections 376/511 of the Indian Penal Code, Ext.9 is the requisition to the school of the victim to furnish her date of birth and Ext.10 is the admission register of ST. Catherine's Girls' High School, Raikia. 4. The defence plea of the appellant is one of denial and it is stated that on the date of occurrence, the victim along with two other children had been to see dance ceremony without taking any consent from the appellant for which the appellant punished her and for such reason, a false case has been foisted. Two witnesses have been examined on behalf of the defence. Two witnesses have been examined on behalf of the defence. D.W.1 Bimal Kishore Parichha is the uncle of the appellant and he stated that he was residing in one campus with the appellant and he had seen the victim on 24.04.2014 in between 4.00 p.m. to 5.00 p.m., but the victim stated nothing about the incident before him and that he came to know about the incident only on 27.04.2014. D.W.2 Madhabananda Das, who was the Headmaster of Saraswati Sisu Vidya Mandir, Raikia, who proved the invitation card vide Ext.A to show that a function was being held on 24.04.2014 in the school. The defence also exhibited two documents. Ext.A is the invitation card of Saraswati Sisu Vidya Mandir, Raikia and Ext.B is the Itihas Panji for the year 2013-14. 5. The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that there are no contradictions in the evidence of the victim and absence of injury on her wrist did not affect her credible evidence and that from the evidence on record, it is clear that the appellant had intended to sexually ravish the victim but for her escape at the nick of the moment, it was not possible on the part of the appellant to be successful in committing the crime. Learned trial Court further held that there are no materials on record that the appellant threatened the victim in any manner causing alarm and accordingly, the appellant was acquitted of the charge under section 506 of the Indian Penal Code. Learned trial Court did not accept the defence plea and did not give any emphasis on the aspect of delay in lodging the first information report. Learned trial Court relied on the evidence of the victim (P.W.1) and her mother (P.W.2) and came to hold that the prosecution has successfully established the charges under sections 376(2)(f)/511 of the Indian Penal Code and sections 6/18 of the POCSO Act. 6. Mr. Manas Chand, learned counsel appearing for the appellant argued that the victim's evidence does not appear to be truthful one and there is delay in lodging the first information report and the doctor has not been examined and no independent witness has been examined to corroborate the prosecution version and therefore, benefit of doubt should be extended in favour of the appellant. Mr. Mr. Arupananda Das, learned Additional Government Advocate appearing for the State, on the other hand, supported the impugned judgment and contended that the evidence of the victim is very clear, cogent and trustworthy and there was no reason on her part to falsely implicate the appellant, who is none else than her father. Moreover, her evidence gets corroboration from the evidence of her mother before whom she disclosed about the occurrence soon after the occurrence. It is further stated that the victim herself has stated that she had not sustained any bodily injury on account of fall and therefore, non- examination of the doctor cannot be a ground to disbelieve the prosecution case. It is further submitted that delay in lodging of the first information report in a case of this nature has got no importance at all as it takes time for the family members to decide whether to lodge the first information report or not as it involves prestige of the family and moreover, the appellant is none else than the father of the victim. Learned counsel further submitted that since it has been duly proved that the victim was minor at the time of occurrence, no fault can be found in the impugned judgment and therefore, the appeal should be dismissed. 7. Adverting to the contentions raised by the learned counsel for the respective parties, let me first deal with the age of the victim at the time of occurrence. The victim (P.W.1) has stated her age to be twelve years when she was examined on 22.10.2014 in Court. She specifically stated her date of birth to be 21.07.2002. The occurrence took place on 24.04.2014. No challenge has been made to the age aspect of the victim by the defence in her cross-examination. The mother of the victim being examined as P.W.2 has also stated that the victim was twelve years old at the time of occurrence and that her date of birth is 21.07.2002. The Headmistress of the school where the victim was prosecuting her studies was examined as P.W.6 and she has proved the school admission register, which has been marked as Ext.10. From the relevant entries of Ext.10, the date of birth of the victim is found mentioned as 21.07.2002. The Headmistress of the school where the victim was prosecuting her studies was examined as P.W.6 and she has proved the school admission register, which has been marked as Ext.10. From the relevant entries of Ext.10, the date of birth of the victim is found mentioned as 21.07.2002. Thus, the oral as well as documentary evidence is consistent that the date of birth of the victim is 21.07.2002 and since the occurrence in question took place on 24.04.2014, thus, the victim was twelve years as on the date of occurrence. Mr. Manas Chand, learned counsel for the appellant has not challenged the age aspect of the victim. Therefore, I am of the humble view that the prosecution has successfully established that the victim was aged about twelve years at the time of occurrence. 8. Now, coming to the evidence of the victim, who has examined as P.W.1, she has stated that the occurrence took place on 24.04.2014 at about 1.00 p.m. inside her house at Raikia. On that day, she along with her father (appellant) and younger brother was in the house. When she was outside the house, the appellant called her and she entered into the room of the appellant. The appellant closed the door of the room and then he opened his own pant and asked the victim to lick his penis. The learned trial Court noticed the demeanour of the victim that while she was deposing in Court, she was weeping. The victim further stated that when she denied to lick the penis of the appellant, the appellant pushed her and gagged her mouth in a piece of cloth and also tied her hands. Then the appellant pounced over her body and torn her dresses and opened her pant and at that time, the victim managed to open the tie of her hands and gave pushes to the appellant and escaped from his clutches by opening the door of the room. The victim further stated that she went to Raikia bazaar, made a telephone call to her mother and requested her mother to take her back from the house and on the next day of occurrence, her mother took her to G.Udayagiri where she narrated the incident before her mother. The victim further stated that during course of commission of offence, the appellant threatened her that she would be killed if she disclosed the incident before others. The victim further stated that during course of commission of offence, the appellant threatened her that she would be killed if she disclosed the incident before others. In the cross- examination, the victim has stated that the houses of other persons are situated nearer to the spot house and her younger grandfather and grandmother and younger brothers were present at the time of occurrence. She further stated that any shout from her house would be audible to her neighbour. She further stated that her mother was absent from the house. The victim further stated in the cross-examination that when the appellant called her into a room, which is situated in the backyard and closed the door, she called out for help and the appellant gave a push for which she fell down on the ground but she had not sustained any bodily injury on account of fall. She further stated that she did not sustain any injury on her both wrists and nobody had seen her while coming out of the spot house after the incident. She further stated that she did not disclose anything before her younger brother so also the other persons present after the incident. The victim further stated that the appellant abused her and her younger brother since they had gone to watch drama at Sishu Mandir, Raikia without his permission on 23.04.2014. She denied the specific suggestion given by the defence that she went to see the drama at Sishu Mandir, Raikia on 24.04.2014. The victim has well stood the test of cross-examination and the defence has not succeeded in demolishing her evidence. She denied the specific suggestion given by the defence that she went to see the drama at Sishu Mandir, Raikia on 24.04.2014. The victim has well stood the test of cross-examination and the defence has not succeeded in demolishing her evidence. The evidence of the victim gets corroboration of the evidence of her mother, who being examined as P.W.2 has stated that on 24.04.2014 in the evening hours, she got a telephone call from the victim and on 25.04.2014, she came and took the victim with her to village Nandagiri where the victim disclosed before her that the appellant called her to a room and when she went inside the room, the appellant closed the door and put lock from inside and then the appellant opened his own dress, gave a push to the victim for which she fell down on the floor of the room and then appellant pounced over the victim and when she raised shout, the appellant gagged her mouth with a piece of cloth and tied her hands and the appellant further threatened her not to disclose the incident before anybody or else she would be killed and that the appellant also torn her clothes and she managed to escape from the clutches of the appellant. During cross-examination, P.W.2 stated that nobody was present when the victim disclosed the incident before her and that she did not report the matter before the police station on the date of disclosure of the incident by the victim. She further stated that whatever she deposed in the Court was on the basis of what she heard from the victim. Nothing has been elicited from the cross-examination of P.W.2 by the defence to disbelieve her evidence. Thus, the evidence of the victim (P.W.1) and her mother (P.W.2) substantiates the prosecution case that on 24.04.2014, the appellant attempted to commit rape on the victim, who was a minor girl. It is correct that no doctor has been examined by the prosecution but there is no material that the victim was sent for her medical examination. It cannot be forgotten that the victim herself has stated that she did not sustain any bodily injury on account of fall and she did not sustain any injury on her both wrists. In view of the factual scenario, in my humble view non-examination of the doctor is not at all fatal to the prosecution. It cannot be forgotten that the victim herself has stated that she did not sustain any bodily injury on account of fall and she did not sustain any injury on her both wrists. In view of the factual scenario, in my humble view non-examination of the doctor is not at all fatal to the prosecution. The evidence of the victim right from the beginning when she disclosed before her mother, which is admissible as res gestae under section 6 of the Evidence Act and her version as has been stated by P.W.2 in the first information report and her 164 Cr.P.C. statement so also the evidence in Court are consistent and there is no such contradiction to disbelieve the prosecution case. The evidence adduced by the defence in support of the defence plea no way falsifies the prosecution case. As per the school invitation card (Ext.A), the function was to start at 4.30 p.m. on 24.04.2014 and the evidence of the victim is that the occurrence took place on 24.04.2014 at 1.00 p.m. Even D.W.1 has stated that he had seen the victim at about 4.00 p.m. to 5.00 p.m. at her house on 24.04.2014 which falsifies the defence plea that as the victim visited a dance programme without the permission of the appellant, she was assaulted. Thus, the learned trial Court has rightly not given any weight on such evidence. The investigation has also been conducted in accordance with law and nothing has been pointed out by the learned counsel for the appellant to show that there was any kind of irregularity or illegality in the investigation. 9. No doubt the occurrence took place on 24.04.2014 and the matter was reported on 27.04.2014, but it appears that the victim disclosed before her mother about the occurrence on 25.04.2014. In view of the relationship between the victim, the informant and the appellant and the nature of accusation against the appellant, in my humble view, it cannot be said that delay in lodging the first information report has got any impact on the truthfulness on the prosecution case as in a case of such nature, delay is a normal phenomenon. In view of the aforesaid discussions, I am of the humble view that the learned trial Court has rightly found the appellant guilty under sections 376(2)(f)/511 of the Indian Penal Code so also sections 6/18 of the POCSO Act. In view of the aforesaid discussions, I am of the humble view that the learned trial Court has rightly found the appellant guilty under sections 376(2)(f)/511 of the Indian Penal Code so also sections 6/18 of the POCSO Act. However, the learned trial Court seems to have imposed sentence for both the offences i.e. under sections 376(2)(f)/511 of the Indian Penal Code so also sections 6/18 of the POCSO Act, which is not permissible in view of section 42 of the POCSO Act. Accordingly, the sentence of R.I. for ten years, which has been imposed for the offence under sections 376(2)(f)/511 of the Indian Penal Code by the learned trial Court is maintained. Accordingly, the Criminal Appeal stands dismissed. In view of the enactment of the Odisha Victim Compensation Scheme, 2017 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, Kandhamal, Phulbani 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, Kandhamal, Phulbani for compliance. Trial Court record with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action.