Orissa High Court
Sagar Kuldi vs State Of Orissa on 11 November, 2017
Equivalent citations: AIRONLINE 2018 ORI 419
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK.
JCRLA No. 12 Of 2016
From judgment and order dated 30.09.2015 passed by the
learned Judge, Special Court, Dhenkanal in C.T./Special Case
No.07 of 2013.
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Sagar Kuldi ........ Appellant
-Versus-
State of Orissa ........ Respondent
For Appellant: - Miss. Mandakini Panda
For State: - Miss. Samapika Mishra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 11.11.2017
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S. K. SAHOO, J.The appellant Sagar Kuldi faced trial in the Court of the learned Judge, Special Court, Dhenkanal in C.T./Special Case No.07 of 2013 for the offences punishable under sections 376(2)(i)/506 of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter for short 'POCSO Act').
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The learned trial Court vide impugned judgment and order dated 30.09.2015 though acquitted the appellant of the charge under section 506 of the Indian Penal Code, however, found him guilty under section 6 of the POCSO Act as well as section 376(2)(i) of the Indian Penal Code and sentenced him to undergo R.I. for ten years and to pay a fine of Rs.5000/-, in default of payment of fine to undergo further R.I. for a period of six months for both the offences and the sentences were directed to concurrently.
2. The prosecution case, as per the First Information Report lodged by the victim on 15.06.2013 before the Inspector in charge, Parjang police station is that on that day at about 12.00 noon while she had been to Malajharan Sahi for grazing of goats, the appellant Sagar Kulidi was also present there and he was also grazing the goats and he made the victim nude forcibly and committed rape on her and also threatened her with dire consequence not to disclose the incident before anybody.
On the basis such first information report, Parjang P.S. Case No. 112 of 2013 was registered on 15.06.2013 under section 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act.
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3. P.W.3 Pradeep Kumar Das, who was the Inspector in charge of Parjang police station, after registration of the case, took up investigation, examined the informant (victim) and other witnesses. He visited the spot, prepared the spot map (Ext.2) and on the next date i.e. on 16.06.2013, he arrested the appellant and sent him for medical examination to C.H.C., Parjang. He also sent the victim for medical examination to C.H.C., Parjang where P.W.4 Dr. Madhusudan Jena examined both the victim as well as the appellant and prepared their medical examination reports. The escort party, who had taken the appellant as well as the victim for medical examination, produced some sample items collected by doctors which were seized under seizure lists Exts.3 and 5. The wearing apparels of the appellant were seized under seizure list Ext.4 and that of the victim were also seized on her production under seizure list Ext.6. The medical examination reports were obtained on 30.06.2013. P.W.3 handed over the charge of investigation to P.W.5 Bamadev Sankhual who re-examined the informant and other witnesses, made a prayer to the Court of learned S.D.J.M., Kamakhyanagar to dispatch the exhibits to S.F.S.L., Rasulgarh for chemical examination and after completion of investigation, he submitted charge sheet on 14.08.2013 under section 4 376(2)(i) of the Indian Penal Code and section 6 of the POCSO Act.
4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court framed charges against the appellant as aforesaid 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.
5. During course of trial, in order to prove its case, the prosecution examined six witnesses.
P.W.1 Gurubari Kuldi is the mother of the victim and she stated that on the date of occurrence at about 11.00 a.m., the victim came crying to the house and disclosed about the commission of rape on her by the appellant and she noticed the wearing apparels of the victim were stained with blood and injuries on her right hand and private part. She intimated the fact to her husband and ultimately a meeting was convened in the village and the appellant was called to the meeting but he did not agree to the accusation leveled against him.
P.W.2 is the victim who narrated the incident and she is the informant in the case 5 P.W.3 Pradeep Kumar Das, P.W.5 Bamadev Sankhual are the Inspectors in charge of Parjnag police station who are the Investigating Officers.
P.W.4 Dr. Madhusudan Jena examined the victim as well as the appellant on police requisition and proved its medical examination repots under Ext.7 and Ext.8 respectively.
P.W.6 Akshaya Kumar Panda was the Headmaster of Bagahamunda Ashram School who proved the school admission wherein the date of birth of the victim had been mentioned as 10.11.2000.
The prosecution exhibited ten documents. Ext.1 is the F.I.R., Ext.2 is the spot map, Exts.3, 4, 5 and 6 are the seizure lists, Ext.7 is the medical examination report of victim, Ext.8 is the medical examination report of appellant, Ext.9 is the office copy of forwarding report of exhibits to S.F.S.L., Rasulgarh and Ext.10 is the school admission register where the victim was prosecuting her studies.
The prosecution also proved three materials objects. M.Os.I, II and III are the X-ray plates.
6. The defence plea of the appellant was one of denial.
7. The learned trial Court after analyzing the evidence on record came to hold that the entry in the school admission 6 register showing the age of the victim as 13 years and six months finds corroboration from the medical examination report marked as Ext.7 and oral testimony of the victim and her mother and that the credibility of the school admission register cannot be doubted. It was further held that on collective reading of the oral and documentary evidence, it is found that the victim girl was 13 years and six months old as on the date of occurrence i.e. on 15.06.2013. The learned trial Court after taking all the evidence into consideration held that the victim was subjected to forcible sexual intercourse by the appellant on the date of occurrence and that the prosecution has very well proved the charges under section 376(2)(i) of the Indian Penal Code and section 6 of the POCSO Act. The learned trial Court however found that the prosecution has failed to substantiate the charge under section 506 of the Indian Penal Code.
8. Since the engaged counsel for the appellant did not appear to argue the appeal, Miss. Mandakini Panda was engaged as the counsel for the appellant and she was supplied with the copy of the paper book and granted time to prepare the case properly. She placed the impugned judgment and evidence and submitted that there is no clinching material relating to the age of the victim to be minor and the finding of the learned trial 7 Court that the victim was thirteen years and six months old as on the date of occurrence is perverse. She further stated that the victim has stated in her cross-examination that the appellant only dragged her but has not committed any sexual act and therefore, the conviction of the appellant under section 376(2)(i) of the Indian Penal Code as well as section 6 of the POCSO Act is not sustainable in the eye of law. She further contended that in view of section 42 of the POCSO Act, the learned trial Court should not have imposed punishment for both the offences i.e. section 376(2)(i) of the Indian Penal Code as well as section 6 of the POCSO Act.
Miss. Samapika Mishra, learned Addl. Standing Counsel for the State on the other hand supported the impugned judgment and order of conviction and submitted that the evidence of the victim, the evidence of the doctor as well as the evidence of Headmaster of the school where the victim was prosecuting her studies at the time of occurrence clearly proves that the victim was thirteen years and six months as on the date of occurrence and therefore, the learned trial Court has rightly held the age of the victim to be such. It is further contended by her that the victim has vividly narrated the occurrence and her disclosure before her mother immediately after the occurrence is 8 admissible as res gestae under section 6 of the Evidence Act and moreover, the victim was examined by the doctor on the very next day of the occurrence who found bleeding injuries on her private parts which corroborates her evidence and therefore, it cannot be said that there is any infirmity or illegality in the order of conviction. It is further contended that since rape has been committed on a school going girl aged about thirteen years and six months, the punishment which has been imposed cannot be said to be on the higher side and therefore, the appeal should be dismissed.
9. Coming to the conviction and sentence imposed by the learned Trial Court, it appears that the learned trial Court has held that the charge against the appellant has been well proved under section 6 of the POCSO Act as well as under
section 376(2)(i) of the Indian Penal Code and accordingly convicted him and while imposing sentence, the learned trial Court has sentenced the appellant to undergo R.I. for ten years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo further R.I. for a period of six months for both the offences and it was directed that both the sentences are to run concurrently.9
Section 42-A of the POCSO Act provides that the provisions of POCSO Act shall be in addition to and not in derogation of the provisions of any other Act. Therefore, the legislature, in its wisdom, thought that POCSO Act would supplant and would be in addition to the other criminal provisions and where there was any inconsistency, the provisions of POCSO Act would override any other law to the extent of inconsistency.
Section 42 of the POCSO Act states about 'alternate punishment'. Where an act or omission constitutes an offence punishable under the POCSO Act and also under sections 166-A, 354-A, 354-B,354-C, 354-D, 370, 370-A, 375, 376, 376-A, 376- C, 376-D,376-E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
In view of the section 42 of the POCSO Act, it is clear that even though the Court can prosecute and convict the appellant both under section 376(2)(i) of the Indian Penal Code as well as under section 6 of the POCSO Act but the Court cannot impose punishment for both the offences and can only impose 10 punishment for the offence which is greater in degree. The choice being that of the learned trial Judge, he has to see which of the offences carries punishment of greater degree and accordingly impose punishment. Section 71 of the Indian Penal Code states that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any of such offences. Section 26 of the General Clauses Act, 1897 which deals with provision as to offences punishable under two or more enactments states that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. In view of the special provision under section 42 of the POCSO Act, the Court can prosecute and convict the appellant both under section 376(2)(i) of the Indian Penal Code as well as under section 6 of the POCSO Act but so far as punishment is concerned, the Court has to choose from the two which would obviously carry punishment of greater degree.
Therefore, the imposition of punishment for both the offences 11 i.e. under section 376(2)(i) of the Indian Penal Code and section 6 of the POCSO Act by the learned trial Court is nothing but a legal error.
10. Now coming to both the offences, it is seen that whereas for proving a charge under section 376(2)(i) of the Indian Penal Code, inter alia, it is to be proved that the age of the victim was under sixteen years of age, for proving a charge under section 6 of the POCSO Act, it is to be proved that the victim was below the age of eighteen years and the victim comes within the definition of 'child' as enumerated under section 2(1)(d) of the POCSO Act. Keeping in view the age factor as required for both the sections, it is to be seen how far the prosecution has successfully proved the age aspect of the victim as on the date of occurrence i.e. on 15.06.2013.
On the age aspect of the victim, the evidence of three witnesses i.e. P.W.2, P.W.4 and P.W.6 are relevant. P.W.2 is the victim and she has stated on oath that she was aged about 13 years and she was a student of class-IX at the time of her deposition as on 5th January 2015. She stated in her evidence that she was reading in class-VIII at Baghamunda Ashram High School at the time of occurrence. In her cross-examination, she has stated that she cannot say her date of birth and she further 12 stated that she cannot say what was her age when she got admission in the school and she cannot say as to why she was stating her age to be thirteen years. She further stated that prior to three years of incident, she had attended her puberty. Therefore, when the victim herself was not aware about her date of birth and she was also not aware why she was stating her age to be thirteen years, on the basis of her statement at the time of deposition, it cannot be conclusively held that the victim was aged about thirteen years and six months at the time of occurrence as held by the learned trial Court.
Coming to the evidence of her mother who has been examined as P.W.1, she has stated that she cannot say what was the age of the victim and also she cannot say if the age of the victim was more than nineteen years. She has further stated she cannot say her own age so also the age of her husband and the age of the victim girl. Admittedly, the father of the victim has not been examined in the case. Therefore, neither from the evidence of the victim nor from the evidence of her mother, it appears as to what was the actual age of the victim as on the date of occurrence.
The evidence of P.W.4, the doctor relating to her age is based on the ossification test report. The doctor has stated 13 that he conducted the ossification test on the victim by taking X- rays of various joints such as wrist joint, hip joint, elbow joint and knee joint etc. at District Headquarters Hospital, Dhenkanal and after perusal of the above, he found the age of the victim was within 13 to 14 years. He proved the X-ray plates as M.Os.I, II and III. However, in the cross-examination, the doctor has stated that the X-ray was done on 17.06.2013 and prior to that he had submitted the report vide Ext.7. He further stated that he is not an expert of dental, radiology and orthopedic. In view of such evidence of the doctor, when the X-ray plates were not available at the time of giving his opinion regarding the age of the victim, the statement of the doctor that the age of the victim was within thirteen to fifteen years, cannot be accepted. The X- ray report has not been proved in this case.
Now coming to the evidence of the P.W.6, the Headmaster of the school where the victim was prosecuting her studies, he stated that the victim took admission in the school in Class-II on 24.04.2007 and her date of birth as per entry made in the school admission register was 10.11.2000. He further stated that Benudhar Mohanta was the Headmaster when the entry was made in the admission register. The relevant entry has been marked as Ext.10/1. However, in the cross-examination 14 P.W.6 has stated that he cannot say who had written Ext.10/1 and no reference papers are available in the register to conclude that 10.11.2000 was the actual date of birth of the victim. He further stated that he cannot say basing on whose information, Ext.10/1 was entered in the said register. Therefore, when it is not clear as to on whose information, the date of birth of the victim has been entered in the school admission register and that to on what basis and the relevant witness who had made such entry has not been examined by the prosecution, it is very difficult to accept on the basis of the entry made in the school admission register that the victim was a child as on the date of occurrence. No doubt she was reading in class-VIII as stated by her in her examination in chief when the occurrence took place but it is very difficult to conclusively arrive at a finding that the victim must have been a minor as on the date of occurrence merely because she was a student of class-VIII.
Therefore, from the combined reading of the evidence of the victim, her mother, the doctor as well as the Headmaster of the school, it is not established beyond all reasonable doubt that the age of the victim was below sixteen years so as to convict the appellant under section 376(2)(i) of 15 the Indian Penal Code or below eighteen years so as to convict him under section 6 of the POCSO Act.
11. Now coming to the evidence regarding commission of rape, the victim has stated that while she had been to Malajharan jungle for grazing of goats, the appellant was also grazing goats there and he came near her, dragged her and then undressed her by opening her pant and forcibly committed rape on her for which she sustained bleeding injury on her private part. She further stated that she resisted the appellant but he did not listen to her and after commission of rape, the appellant left the spot. The victim further stated that she came to the house and narrated the entire incident before her mother and her mother verified her body and her private part and intimated the fact to her father.
The evidence of the victim on this aspect has practically remained unchallenged in the cross-examination and nothing has been brought out to disbelieve such testimony. Even though the victim has stated in the cross-examination that the appellant only dragged her and has not committed any sexual act but on a question put by the learned trial Court that how the appellant committed rape on her, the victim has clarified that by penetrating his penis in her vagina, the appellant committed 16 rape on her. The evidence of the victim is corroborated by her mother (P.W.1) who has stated that on the date of occurrence at about 11.00 a.m. the victim came crying and when she asked her the reason of her crying, the victim told her that the appellant dragged her and forcibly committed rape on her and she found bleeding injury on her right hand and private part and her wearing dress was stained with blood.
The evidence of the doctor (P.W.4) is very relevant and he has stated that he examined the victim on 16.06.2013 and found the victim's undergarments were soaked with blood and her Panjabni was soaked with mud. He found the pubic hairs, breasts and her axillary hairs were well developed and on examination of female genitals, he found there was presence of blood clots, labia majora and labia minora were injured and lacerated. There was laceration in posterior commissure, fourchette and vestibule of 1st degree. Hymen general appearance of opening was irregular and tears were present. There was fresh bleeding and vaginal canal was full of clots and condition of cervix pinhole was covered with clots. The doctor has further stated that lacerated injuries inflicted over lower end of labia, posterior commissure and fourchetee might be due to penetration of penis. He found blood was oozing out of the injury 17 on the vagina which was full of clots. The doctor has further stated that the victim was not accustomed to regular sexual intercourse.
Therefore, the evidence of the victim gets sufficient corroboration from the medical evidence. It appears that the wearing apparels of the victim and her sample blood, sample saliva, sample public hair and sample vaginal swab etc. were sent for chemical analysis but the chemical examination report has not been proved which is a really sorry state of affairs. It is not only the duty of the Public Prosecutor in a case of this nature to take immediate steps for production of such report prior to the framing of charge but also of the learned trial Court. In case of Sunil @ Jai Singh Rautia -Vrs.- State of Orissa reported in (2015) 61 Orissa Criminal Reports 150 decided on 06.04.2015, it is held by me that it is the duty of the prosecutor as well as the trial Court to see that the chemical examination report is made available even before the charges are framed and copy of such report is furnished to the accused.
However, non-proving of the chemical examination report no way affects the prosecution case relating to the commission of rape by the appellant on the victim and therefore, I am of the view that the prosecution has successfully 18 established that the appellant has committed rape on the victim on 15th June 2013. Since the age of the victim has not been proved to be below the required age, the order of conviction passed by the learned trial Court under section 376(2)(i) of the Indian Penal Code as well as section 6 of the POCSO Act is hereby set aside, instead the appellant is convicted under section 376(1) of the Indian Penal Code. Taking into account the young age of the petitioner, the substantive sentence is reduced from R.I. for ten years to R.I. for seven years. The fine amount of Rs. 5000/- (rupees five thousand) and the default sentence of six months as was imposed by the learned trial Court remains unaltered.
12. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the nature and gravity of the offence committed on a school going girl and her family background, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Dhenkanal to examine the case of the victim after conducting necessary enquiry in accordance with law for grant of compensation under the Orissa Victim Compensation Scheme, 2012.
Let a copy of the order be sent to the District Legal Services Authority, Dhenkanal for compliance. 19
Lower Court's record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action.
13. Before parting with the case, I would like to put on record my appreciation to Miss Mandakini Panda, the learned counsel engaged for the appellant for her effort in arguing the matter and she shall be entitled to her professional fees which is fixed at Rs.2,500/-.
14. The Jail Criminal Appeal is allowed in part.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 11th November, 2017/Pravakar/Sukanta