Orissa High Court
2017 vs State Of Odisha on 2 November, 2021
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 60 of 2018
From judgment and order dated 21.03.2018 passed by the Addl.
Sessions Judge -cum- Special Judge, Sundargarh camp at
Rourkela in Special G.R. Case No.417 of 2013/Trial No.29 of
2017.
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Prafulla Mundari @ Pelka ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Arun Kumar Budhia
Amicus Curiae
For Respondent: - Mr. Arupananda Das
Addl. Govt. Advocate
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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: 02.11.2021
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S.K. SAHOO, J. The appellant Prafulla Mundari @ Pelka faced trial in
the Court of learned Addl. Sessions Judge -cum- Special Judge,
Sundargarh camp at Rourkela in Special G.R. Case No.417 of
2013/Trial No.29 of 2017 for commission of offences punishable
under section 376(2)(i) of the Indian Penal Code and section 6 of
// 2 //
the Protection of Children from Sexual Offences Act, 2012
(hereafter 'POCSO Act') on the accusation that he committed
rape on the victim girl, who was aged about eight years at the
time of occurrence, in a dilapidated house situated at village
Lindra under Bisra police station in the district of Sundargarh.
The learned trial Court vide impugned judgment and
order dated 21.03.2018 found the appellant guilty of both the
charges and sentenced him to undergo rigorous imprisonment
for ten years and to pay a fine of Rs. 5,000/- (five thousand), in
default, to undergo rigorous imprisonment for six months for the
offence under section 376(2)(i) of the Indian Penal Code. No
separate sentence was awarded for the conviction of the
appellant under section 6 of the POCSO Act in view of the
provision under section 42 of the said Act.
2. The prosecution case, as per the first information
report lodged by one Minaketan Mundari (P.W.10), the father of
the victim before the Inspector in-charge of Bisra police station
on 24.02.2013 is that on that day in the afternoon at about
03.00 p.m., the appellant called the victim girl who was aged
about eight years to a dilapidated house and opened her pant
and committed rape on her and after the occurrence, the victim
Page 2 of 25
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returned home and disclosed about the incident crying before her
mother.
On the basis of such first information report, Bisra
P.S. Case No. 20 dated 24.02.2013 was registered under section
376(2)(h) of the Indian Penal Code and section 4 of the POCSO
Act. P.W.14 Subodha Kumar Mallik, Inspector in-charge of Bisra
police station after registration of the case, took up investigation,
examined the victim, informant, mother of the victim and other
witnesses, seized the wearing apparels of the victim girl, sent
the victim girl for her medical examination to Bisra C.H.C.,
arrested the appellant on 24.02.2013, seized the wearing
apparels in presence of witnesses, sent the appellant to Bisra
C.H.C. for medical examination, visited the spot and prepared
the spot map, seized the biological samples of the victim girl
collected by the medical officer, forwarded the appellant to the
Court on 25.02.2013 and made a prayer to the Court for
dispatch of the exhibits to the R.F.S.L., Sambalpur for chemical
examination, received the medical examination reports of the
victim as well as the appellant and on completion of
investigation, submitted charge sheet on 30.05.2014 under
section 376(2)(i) of the Indian Penal Code and section 4 of the
POCSO Act against the appellant.
Page 3 of 25
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3. The defence plea of the appellant is one of denial and
it is pleaded that there was civil dispute between both the
families for which a false case has been foisted against him.
4. Initially, the learned trial Court framed charges under
section 376(2)(i) of the Indian Penal Code and section 4 of the
POCSO Act on 24.03.2015, but subsequently on 19.03.2018
charge was reframed under section 376(2)(i) of the Indian Penal
Code and section 6 of the POCSO Act against the appellant 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.
5. During course of trial, in order to prove its case, the
prosecution has examined as many as fourteen witnesses.
P.W.1 Rajgobind Mahali stated that the wearing
apparels of a girl were seized in his presence by police and his
signatures were taken in two documents.
P.W.2 Mahendra Mahali is a witness to the seizure of
wearing apparels of the victim and the appellant such as top,
pants, T shirt and gamucha vide seizure lists Exts.1/1 and 2/1
respectively. He further stated that when a gathering of people
called the appellant and confronted him about the occurrence, he
admitted the fact.
Page 4 of 25
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P.W.3 Ghanashyam Naik is an independent witness
and also a witness to the seizure of one sealed vial containing
vaginal swab of the victim and one vial containing pubic hair of
the appellant vide seizure lists Ext.3 and 4 respectively.
P.W.4 Samarai Mundari is a co-villager of the
informant and the appellant and he did not support the
prosecution case and was declared hostile by the prosecution
and cross-examined.
P.W.5 Jamuna Mundari is the aunt of the victim
(P.W.9) and sister-in-law of the informant (P.W.10). She stated
that when she was returning from work on one evening, she
heard from the villagers that the appellant had raped her niece
and she went to the house of the informant (P.W.10) and there
the mother of the victim (P.W.11) informed her that the
appellant had raped the victim.
P.W.6 Bijaya Kumar Mundari is the brother-in-law of
P.W.10 and brother of P.W.11. He stated that when he was
returning from his work, he heard from P.W.11 that the appellant
raped the victim, who is his niece.
P.W.7 Shyamlal Mundari is an independent witness,
who stated that on 24.02.2013 in the afternoon, he heard from
the villagers that the appellant had raped the minor daughter of
Page 5 of 25
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the informant (P.W.10), who was aged about five to six years at
the time of occurrence.
P.W.8 Ramesh Chandra Sandil, who is a co-villager of
the informant and the appellant, is the scribe of the F.I.R.
(Ext.5).
P.W.9 is the victim. She supported the prosecution
case and stated about the commission of rape on her by the
appellant.
P.W.10 Minaketan Mundari is the informant of the
case and he is the father of the victim (P.W.9). He stated that on
the date of occurrence, when he returned home from work, his
wife (P.W.11) informed him about the misdeeds of the appellant
in committing rape of the victim (P.W.9) and at that time, he
asked the victim who told him about the incident. He stated that
on his production, police seized the wearing apparels of the
victim and prepared seizure list vide Ext.1/1. He also proved the
consent on the medical examination report of the victim vide
Ext.6.
P.W.11 Sini Mundari is the mother of the victim
(P.W.9), who stated that when her younger daughter informed
her about the incident, she asked the victim who narrated the
entire incident of rape before her.
Page 6 of 25
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P.W.12 Eprem Tirkey was working as the Constable
at Bisra police station, who stated that on the basis of command
certificate issued by the Investigating Officer, he escorted the
victim and the appellant to the hospital for their medical
examination and after medical examination, the hospital
authority collected vaginal swab of the victim and the pubic hair
and semen of the appellant keeping the same in two sealed vials
and handed over to him, which produced before the I.O. which
were seized as per seizure lists Exts.3 and 4 respectively.
P.W.13 Dr. Gujaram Majandi was the Medical Officer
of Bisra C.H.C., who medically examined the appellant and the
victim on police requisition and proved the medical examination
reports vide Exts.7 and 9 respectively. He also proved his
observation on the medical examination report of the appellant
vide Ext.8.
P.W.14 Subodha Kumar Mallik was the Inspector in-
charge of Bisra police station and he is the Investigating Officer
of the case.
The prosecution exhibited twelve numbers of
documents. Ext.1/1 is the seizure list of the wearing apparels of
the victim, Ext.2/1 is the seizure list of one red and green colour
half pant, one black and blue colour T shirt and red colour
Page 7 of 25
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gamucha of the appellant, Ext.3 is the seizure list of one sealed
vial containing vaginal swab of P.W.9 presented by P.W.3, Ext.4
is the seizure list of two vials containing pubic hair and semen of
the appellant, Ext.5 is the F.I.R., Ext.6 is the consent of P.W.10
on the medical examination report of P.W.9, Ext.7 is the injury
report of the appellant, Ext.8 is the medical examination report
of the appellant, Ext.9 is the medical report of P.W.9, Ext.10 is
the spot map, Ext.11 is the prayer for forwarding M.Os. and
Ext.12 is the copy of forwarding report.
No witness was examined on behalf of the defence.
6. Learned trial Court after analyzing the evidence on
record, came to hold that the victim was eight years of age at
the time of incident and that the appellant committed rape on
the victim and that the prosecution has been able to prove the
charges under section 376(2)(i) of the Indian Penal Code and
section 6 of the POCSO Act against the appellant.
7. Mr. Arun Kumar Budhia, learned Amicus Curiae
appearing for the appellant contended that the evidence of the
victim (P.W.9) that the appellant after removing her pant
inserted his penis into her vagina and anus is not corroborated
by the medical evidence. The doctor (P.W.13), who examined
the victim on the very day of occurrence has stated that he did
Page 8 of 25
// 9 //
not find any external or internal injury on her person suggestive
of forcible sexual intercourse and the genitals were intact and
there was no sign and symptoms of recent sexual intercourse. It
is further argued that though the victim stated in her evidence
that the appellant inserted his penis in her vagina and anus and
that to by making her lie on the ground, but she disclosed before
her parents i.e. P.Ws. 10 and 11 that the appellant rubbed his
penis on her vagina. Learned counsel further submitted that as
per the report submitted by the learned trial Court along with the
report of the Jail doctor, the appellant is now aged about eighty
years and the Medical Officer, Jail Hospital, Special Jail, Rourkela
has reported that the appellant is suffering from different age
related ailments and he is unable to take care of his personal
hygiene and his routine activities without the assistance of his
co-inmates. Learned counsel further submitted that since the
appellant has remained in custody for more than eight years and
eight months as he was forwarded to Court on 25.02.2013, in
view of his alarming health condition, in case the impugned
judgment and order of conviction is upheld, the sentence
awarded to the appellant deserves to be reduced to the period
already undergone by him.
Page 9 of 25
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Mr. Arupananda Das, learned Additional Government
Advocate, on the other hand, contended that the victim girl
appears to be a truthful witness and she stood the test of cross-
examination very well and nothing has been elicited in her cross-
examination so as to disbelieve her testimony. The evidence of
the victim is also getting corroboration from the evidence of her
parents and in such a scenario, the evidence of the doctor
regarding absence of external and internal injury suggestive of
forcible sexual intercourse or absence of any sign or symptoms
of recent sexual intercourse cannot be a ground to discard the
testimony of the victim. Learned counsel further submitted that
complete penetration is not required for establishing the offence
charged in view of the definition of 'rape' as per section 375 of
the Indian Penal Code, which was substituted by the Act 13 of
2013 and came into force on 03.02.2013. Since the occurrence
has taken place on 24.02.2013, the said definition of 'rape'
would be applicable in this case and therefore, it can be said that
the prosecution has successfully established the charge under
section 376(2)(i) of the Indian Penal Code and section 6 of the
POCSO Act against the appellant. Learned counsel further
submitted that the appellant has admitted his guilt before the
villagers which is stated by P.W.2, who is a co-villager. He
Page 10 of 25
// 11 //
further argued that since minimum sentence prescribed under
section 376(2)(i) of the Indian Penal Code has been imposed on
the appellant by the learned trial Court, the question of reducing
the sentence does not arise in this case and therefore, the
appeal should be dismissed.
8. In this case, the victim (P.W.9) is the star witness on
behalf of the prosecution. So far as the age of the victim is
concerned, the F.I.R. indicates that the victim was aged about
eight years at the time of occurrence. The victim herself while
giving her evidence on 02.03.2016 has stated her age to be ten
years and that she was a student of Class-IV. Nothing has been
elicited in the cross-examination of the victim to disbelieve her
age. The doctor (P.W.13) has also stated the age of the victim to
be eight to twelve years and the evidence of the doctor has
remained unchallenged inasmuch as no cross-examination has
been made to the doctor. Of course, the Investigating Officer has
stated that he has not seized any documents to show the date of
birth of the victim and as per the disclosure of the family
members about the age of the victim, the same was mentioned,
but since the evidence of the victim as well as the doctor has
remained unchallenged, I am of the humble view that the finding
of the learned trial Court that the victim was below twelve years
Page 11 of 25
// 12 //
of age at the time of incident is quite justified. Learned counsel
for the appellant has also not challenged the age of the victim.
The victim was tested by the learned trial Court by
putting some questions and it was found that she was able to
give rational answers. Being examined as P.W.9, the victim has
stated that on the date of occurrence, she along with her sister
was playing on the verandah of their house and their father was
not present in the house and their mother was cooking food and
at that time the appellant came and gave her money and took
her to another house situated nearby and there the appellant by
removing her pant, inserted his penis in her vagina and anus
(MORA PICHARE AND JUNGHA SANDHIRE THOKLA). On the
question put by the Court as to what happened thereafter, the
victim replied 'SUAI KARI THOKLA MOTE'. The victim further
stated that after the appellant left, she came to her house and
narrated the incident before her mother. In the cross-
examination, she has also stated that there was no quarrel
between her family and the family of the appellant. She further
stated that she did not seek any permission from her mother to
accompany the appellant. She stated that her parents had never
tutored her as to what to say in the Court. She denied the
suggestion given by the learned defence counsel that the
Page 12 of 25
// 13 //
appellant had not given her any money and not taken her to a
house and removed her pant and inserted his penis into her
vagina and anus.
The mother of the victim being examined as P.W.11
has stated that when the victim (P.W.9) was asked, she
informed that the appellant called her to a nearby dilapidated
house while she was playing in the verandah with her sister and
there the appellant made her lie on the ground, removed her
chadi and rubbed her penis on her vagina. She denied the
suggestion given by the learned defence counsel that there was
any quarrel between the two families and that they had taken
heavy loan from the appellant and that in order to escape from
the liability of loan, a false case was foisted against the
appellant. Nothing has been elicited in the cross-examination to
disbelieve the evidence of P.W.11.
The evidence of the father of the victim, who has
been examined as P.W.10 also corroborated the evidence of the
victim and he stated that when he asked the victim, she told him
that on that day at about 03.00 p.m. to 04.00 p.m. the appellant
took her to a dilapidated house, removed her pant and rubbed
his penis on her vagina and anus. Therefore, the evidence of the
victim is corroborated by the statements of her parents.
Page 13 of 25
// 14 //
It is pertinent to note that the occurrence in question
took place on 24.02.2013 and on the very day, the matter was
reported to the police and the victim was also medically
examined on that date. Therefore, there was no time for
concoction of any case and prompt lodging of the first
information report is also another factor, which goes in favour of
the prosecution.
P.W.2, who is a co-villager of the informant, has
stated that he got information from the informant about the
offence committed by the appellant and when the gathering
called the appellant and confronted him about the fact, he
admitted the fact. Then the appellant was kept in the custody of
some of the villagers and the matter was reported to the police.
In the cross-examination, he has stated that twenty to twenty
five persons had gathered. However, in the accused statement,
no question has been put to the appellant on such admission. A
confession must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively
incriminating fact, is not of itself a confession. (Ref: Pakala
Narayana Swami -Vrs.- Emperor; A.I.R. 1939 PC 47). Only
voluntary and direct acknowledgment of guilt is a confession but
Page 14 of 25
// 15 //
when a confession falls short of actual admission of guilt, it may
nevertheless be used as evidence against the person who made
it or his authorized agent as an 'admission' under section
21 of the Evidence Act. (Ref: Central Bureau of Investigation
-Vrs.- V.C. Shukla ; A.I.R. 1998 SC 1406). When a statement
falls short of a plenary acknowledgment of guilt, it would not be
a confession, even though the statement is in respect of some
incriminating facts, which taken, along with other evidence,
tends to prove the guilt of the accused. However, such a
statement would, indeed, be admission. (Ref: Irsad Alam
-Vrs.- The State of Bihar, 2014 Criminal Journal 2107). The
surrounding circumstances under which the admission was
stated to have been made, absence of any specific material as to
what was confronted to the appellant and what was his answer
to such confrontation made before twenty to twenty five persons
and more particularly when this material circumstance was not
put to the appellant in his statement recorded under section 313
of Cr.P.C., the prosecution cannot be permitted to rely on this
admission. Thus, the evidence of P.W.2 no way helps the
prosecution case.
The victim was medically examined on the date of
occurrence and the doctor (P.W.13) has stated that he found no
Page 15 of 25
// 16 //
external or internal injury on her person suggestive of forcible
sexual intercourse, the clothes were intact and there was no tear
and her pant was stained with semen. The doctor further stated
that the genital was intact and there was no sign or symptoms of
recent sexual intercourse and the age of the victim was opined
to be eight to twelve years. Though the biological samples along
with the seized wearing apparels of both the victim and the
appellant were sent for chemical analysis, but the reports were
not obtained from the R.F.S.L., Sambalpur to be proved by the
prosecution during trial. Delay in analysis of the exhibits and
delay in communication of its results by the Forensic Science
Laboratories to the Courts create hindrance to the early disposal
of the criminal trial. It is the solemn duty of the State to engage
more number of efficient analysts in different laboratories to see
that right to speedy trial which is a fundamental right guarantee
under Article 21 of the Constitution of India is not denied to any
accused.
In view of the definition of 'rape' as per the amended
provision of section 375 of the Indian Penal Code, which came
into force from 03.02.2013, it is apparent that complete
penetration of the penis either into the vagina, mouth, urethra
or anus of a woman is not necessary to make out a case of rape.
Page 16 of 25
// 17 //
If there is penetration of penis, to any extent, into any of such
part of the body of a woman, that would come within clause (a)
of section 375 of the Indian Penal Code and the man committing
such act can be stated to have committed rape. Explanation I
makes it very clear that for the purpose of section 375 of the
Indian Penal Code, 'vagina' shall also include labia majora.
In the case of Beirangai -Vrs.- State of Mizoram
and Ors., reported in (2020) 4 Gauhati Law Times 411, a
Division Bench of Gauhati High Court, Aizawl Bench held as
follows:
"25. Section 6 of the POCSO Act, 2012 is the
punishment provided for aggravated penetrative
sexual assault, which not only requires that the
condition/s provided in Section 5 of the POCSO
Act, 2012 are satisfied, but that the conditions
provided in Section 3 of the POCSO Act, 2012
are present. Thus, while Section 3(a) requires
penetration of the vagina by the penis, the
words used by the learned Trial Court, while
framing charge under Section 6 of the POCSO
Act, 2012, is that the appellant tried to insert his
penis into the vagina of the prosecutrix. The use
of the word "tried to insert" leads to an inference
that an attempt to rape or penetrative sexual
assault had been made, but had not led to
Page 17 of 25
// 18 //
actual penetration. However, the framing of
charge under Section 6 of POCSO Act, 2012,
read with facts of this case, implies penetration
by the appellant's penis into the vagina of the
prosecutrix, thereby attracting Section 3(a) of
the POCSO Act, 2012. In any event, the attempt
to insert the penis into the victim's vagina, after
rubbing it with soap to oil it would also attract
Section 3(c) of the POCSO Act, 2012 as the
rubbing of the vagina with soap to oil the same
and touching of the vagina by the penis would
amount to manipulation of any part of the body
of the child so as to cause penetration into the
vagina. Penetration of the penis into the vagina
is not sine qua non for attracting Section 3(c),
as the same is taken care of by Section 3(a).
Thus, rubbing of soap or oil the victim's private
parts, so as to cause penetration and the
meaning of attempt to penetrate the vagina
would come within the meaning of the word
"manipulation", as provided in Section 3(c). As
the prosecutrix is below 12 years of age, Section
5(m) is attracted and thus, we find no infirmity
with the framing of charge being made against
the appellant under Section 6 POCSO Act, 2012,
only because of the use of the words "tried to
insert"."
Page 18 of 25
// 19 //
In the case of Santhosh -Vrs.- State of Kerala
reported in 2021 (4) Kerala Law Times 656, a Division
Bench of Kerala High Court held as follows:
"32.....One of the crucial aspects to be noticed in
section 375 as it stood prior to the amendment
in 2013, is that, it provided for "sexual
intercourse" and "penetration" (of any degree).
In Sakshi -Vrs.- Union of India : (2004) 5
SCC 518, the Honourable Supreme Court,
adopted the dictionary meaning of the word
"sexual intercourse" as "heterosexual
intercourse involving penetration of the vagina
by the penis". So, penile-vaginal interaction was
one of the necessary ingredients for constituting
the offence of rape, prior to the amendment. As
noticed above, even at that time, judicial
interpretations sounded different notes and
often adopted very wide interpretation as to the
degree of penetration and even slightest
penetration was treated as sufficient to attract
the offence of rape. In the amendment proposed
in Criminal Law Amendment Bill, 2012, the
expression "rape" itself was proposed to be
substituted with the expression 'sexual assault',
to make the offence of sexual assault gender
neutral and also for widening the scope of the
offence of sexual assault. One of the objects of
the said proposal was that the term "sexual
Page 19 of 25
// 20 //
intercourse", which confined it to penile-vaginal
intercourse, was to be done away with.
However, in the report of Justice J.S. Verma
Committee, the proposal was to widen the scope
of definition of "rape" by retaining the said
expression in the statute, instead of substituting
it with ' "sexual assault". The proposal in Justice
J.S. Verma Committee report included
penetration to other orifices but such
penetration was confined to orifices such as
vagina, urethra and anus. In the said report
section 375(b) proposed was "manipulates any
part of the body of a person so as to cause
penetration of the vagina or anus or urethra of
another person". In all the above stages, the
suggestions were made for amendments to
widen the scope of definition of offence of rape,
though it fell short of including any orifices other
than vagina, urethra and anus. Later,
presumably by taking into account, the
suggestions from other sources, the legislature
has further widened the said provision, by
including the penetration to any part of the body
of woman. As the provision stands at present in
375(c) what constitutes rape reads as: (c)
manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra,
anus or any part of body of such woman or
makes her to do so with him or any other
Page 20 of 25
// 21 //
person; or". It includes penetration to other
parts of the body of woman and it is not
confined to vagina, urethra and anus. In the
amended provisions, the legislative intention is
very evident, and it is also a marked deviation
from what is proposed in Justice Verma
Committee report, wherein the penetration was
confined to vagina, urethra and anus alone.
When the amended definition of section 375 is
examined in the light of the gradual evolution of
definition of rape and the expansion thereof, in
our view, the expression "cause penetration into
the vagina, urethra, anus or any part of body of
such woman" as used therein, requires wider
interpretation so as to include any orifices
naturally present or any part of the body
manipulated to simulate a penetration and have
the effect/sensation of an orifice. It is crucial to
note that the said provision starts with the
words "manipulates any part of the body of a
woman so as to cause penetration" The
dictionary meaning of "manipulate: includes
"control or influence cleverly or
unscrupulously.". The word penetration means:
"a movement into or through something or
someone" The word, 'penetrate', as per 'The
Concise Oxford Dictionary', means 'the act or
process of making way into or through
something'; 'to enter or pass through or force a
Page 21 of 25
// 22 //
way into or through'. When the above provision
is read with the said definitions in common
parlance, we have no doubt in our mind that,
when the body of the victim is manipulated to
hold the legs together for the purpose of
simulating a sensation akin to penetration of an
orifice; the offence of rape is attracted. When
penetration is thus made in between the thighs
so held together, it would certainly amount to
"rape" as defined under Section 375. In short,
considering the intention of the legislature as
revealed from the above proposals, followed by
the enactment of Criminal Law Amendment Act,
2013 and gradual evolution of the concept of the
offence of "rape" from time to time, the
irresistible conclusion is that, the definition of
rape as contained in section 375 would take in,
all forms of penetrative sexual assault onto
vagina, urethra, anus or any other parts of the
body so manipulated to get the feeling or
sensation of an orifice. The word manipulation
by itself includes an artificial creation. The effect
of manipulating the thighs to be held tightly
together is to cause penetration of the crevice,
when the muscles engulf the object which
penetrates to create or simulate the same effect
as in a normal penile-vaginal intercourse."
Page 22 of 25
// 23 //
In the case in hand, the victim has stated in her
evidence that the appellant by removing her pant inserted his
penis in her vagina and anus. The learned trial Court mentioned
the exact words stated by the victim, such as 'MORA PICHARE
AND JUNGHA SANDHIRE THOKLA'. Thus, if properly translated,
the victim in fact stated that the appellant inserted his penis in
between the buttocks and the thighs. Even though the victim has
stated before her parents that the appellant after removing her
chadi rubbed his penis in her vagina but not stated about
insertion of penis in her vagina and anus, as stated by her in her
deposition (which seems to have not been properly translated by
the learned trial Court while recording evidence), but in my
humble view such act of rubbing the penis in the vagina of the
victim or penetrative sexual act between the buttocks or thighs
of the victim by the appellant would amount to an act of
manipulation of the body of the victim to obtain sexual
gratification which would come under clause (c) of section 375 of
the Indian Penal Code which includes "manipulates any part of
body of a woman so as to cause penetration into...or any part of
body of such woman". Non-noticing of any external or internal
injury on the person of the victim suggestive of forcible sexual
intercourse as per the evidence of the doctor (P.W.13) in such a
Page 23 of 25
// 24 //
scenario, cannot be a ground to discard the prosecution case.
The minor variation in the evidence of the teen aged victim and
what she stated before her parents about rape is not sufficient to
disbelieve the prosecution case. Therefore, the learned trial
Court has rightly found the appellant guilty under section
376(2)(i) of the Indian Penal Code and 6 of the POCSO Act.
9. The learned trial Court has imposed minimum
sentence prescribed under section 376(2)(i) of the Indian Penal
Code and therefore, the contention of the learned counsel for the
appellant to reduce the sentence to the period already
undergone by the appellant cannot be accepted. However, taking
into account the health condition of the appellant and his age as
per the report dated 12.08.2021 furnished by the learned trial
Court basing on the report of the Medical Officer, Jail Hospital,
Special Jail, Rourkela that the appellant is now eighty years of
age and suffering from Systemic hypertension, complete
blindness of right eye and diminished vision of left eye and that
due to old age debility and diminished vision, he is unable to
take care of his personal hygiene and his routine activities
without assistance of his co-inmates, the appellant is at liberty to
move the appropriate Government for remission of the sentence
through the Jail Superintendent as per the provision of section
Page 24 of 25
// 25 //
432 of the Code of Criminal Procedure in accordance with law,
which is over and above the remission granted or awarded to a
convict under the Jail Manual or other statutory rules and this
Court expresses no opinion on the same.
Though the learned trial Court sent a copy of the
judgment to the District Legal Services Authority, Sundargarh to
award compensation as per the provision of Victim
Compensation Scheme, it is not clear whether the same has
been done or not. A copy of this judgment along with the trial
Court record be sent to the concerned Court to take necessary
steps in that regard
The JCRLA being devoid on merits, stands dismissed.
Before parting with the case, I would like to put on
record my appreciation to Mr. Arun Kumar Budhia, 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.7,500/- (rupees seven thousand five hundred only).
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 2nd November 2021/PKSahoo/RKM Page 25 of 25