Orissa High Court
Muna Alias Ranjita Dalabehera vs State Of Orissa on 26 October, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 163 Of 2007
From the judgment and order dated 01.03.2007 passed by the
Sessions Judge, Phulbani in S.T. Case No. 85 of 2005.
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Muna @ Ranjita
Dalabehera ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Debasis Panigrahi
For State: - Mr. Prem Kumar Patnaik
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 & Judgment: 26.10.2017
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S. K. SAHOO, J.The appellant Muna @ Ranjita Dalabehera faced trial in the Court of learned Sessions Judge, Phulbani in S.T. Case No. 85 of 2005 for offences punishable under sections 376/493/457/506 of the Indian Penal Code.
The learned trial Court vide impugned judgment and order dated 01.03.2007 acquitted the appellant of the charges 2 under sections 493/457/506 of the Indian Penal Code, however, found him guilty under sections 376/451 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo rigorous imprisonment for a period of six months for the offence under section 376 of the Indian Penal Code and rigorous imprisonment for six months for the offence under section 451 of the Indian Penal Code and both the substantive sentences were directed to run concurrently.
2. The prosecution case, in short, is that on 15.02.2005 night while the victim (P.W.3) and her elder sister (P.W.4) were sleeping in their house and the other family members were absent, the appellant forcibly opened the backside door of the house and entered into the bed room. Seeing the appellant, P.W.4 shouted but the appellant told her that he was in love with the victim and threatened her not to shout for which P.W.4 entered into another room. It is the further prosecution case that the appellant forcibly committed sexual intercourse with the victim for two times during that night despite her protest and thereafter, he slept with the victim till morning and when the parents of the victim came in the morning and knocked the door, the appellant fled away from the house through the backside door. The incident was reported to the parents by the victim and 3 her elder sister. A panchayat was convened in the village but the appellant did not attend the panchayat and absconded for which the first information report was lodged on 21.02.2005 at Kattingia outpost.
P.W.12 Padma Charan Mohanty who was the A.S.I. of police at Kattingia outpost after receipt of the written report, sent it to the officer in charge of Bamunigam police station for registration and accordingly, Bamunigam P.S. Case No. 11 of 2005 was registered on 21.02.2005 under sections 457/376/506 of the Indian Penal Code. The officer in charge of the Bamunigam police station namely Rajendranath Reddy (P.W.11) directed P.W.12 to take up investigation of the case.
During course of investigation, P.W.12 examined the victim, visited the spot, prepared the spot map, examined other witnesses and sent the victim for her medical examination. The appellant was arrested on 21.02.2005 and the half pant and one yellow colour full shirt of the appellant were seized under seizure list Ext.4 and one scot, white colour blouse and black colour chadi of the victim were also seized under seizure list Ext.3. He also seized one sealed glass bottle containing semen sample of the appellant which was collected and preserved by the Medical Officer, Baliguda under seizure list Ext.5 and also seized the pubic hair of the victim and vaginal swab collected by the doctor 4 at M.K.C.G. Medical College and Hospital, Berhampur under seizure list Ext.6. The material objects were sent to the S.F.S.L., Rasulgarh, Bhubaneswar for examination and opinion. On 10.06.2005 P.W.11 took over charge of investigation of the case and after completion of investigation, on the direction of the Superintendent of Police, Kandhamal, charge sheet was submitted under sections 457/376/493/506 of the Indian Penal Code against the appellant on 16.06.2005.
3. 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 on 18.08.2005 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. In order to prove its case, the prosecution examined fourteen witnesses. The relevant witnesses to the occurrence are the victim (P.W.3) and her elder sister (P.W.4). P.W.5 Tumbeswar Dalabehera is the father of the victim. P.W.14 Dr. Geeta Sahu who examined the victim on 22.02.2005, proved her report Ext.7. P.W.11 Rajendranath Reddy and P.W.12 Padma Charan Mohanty are the Investigating Officers.
5. The defence plea of the appellant is one of denial. 5
6. The learned trial Court after discussing the evidence on record came to hold that nothing has been elicited from the evidence of P.W.3 and P.W.4 to disbelieve that the appellant had sexual intercourse with the victim on the occurrence night. The learned trial Court further held that in absence of other evidence when the evidence of the doctor is based on scientific test, it is not liable to be discarded for any reason and it is to be held that the victim was below sixteen years as on the date of alleged incident. The learned trial Court further held that it is proved that the appellant and the victim had intimacy and they had established physical relationship for quite a long period preceding the occurrence which is reflected in the first information report. It is further held that both the sisters corroborated each other and their evidence does not suffer from material contradictions except one point as the victim stated that the appellant slept with her till the morning when the parents came to the house whereas P.W.4 stated that the appellant remained for about one hour. The learned trial Court further held that the victim was a young rustic girl for which she was presumably not able to properly explain the cause of delay in lodging F.i.R. and the delay is not very much material in the case. The learned trial Court further held that the fact that the appellant had intercourse twice and thereafter, he slept with the victim is 6 sufficient indication that it was with the consent of the victim, the act was done and it is a case where the appellant had sexual intercourse with the victim with her full consent.
7. Mr. Anirudha Das, who was earlier appearing for the appellant submitted that the consent has been taken by the appellant to engage some other counsel and therefore, he has no instruction in the matter. Since it is an appeal of the year 2007 and a report has come from the learned Sessions Judge, Kandhmal, Phulbani that the appellant had already served the sentence and released from custody since 25.02.2011, Mr. Debasis Panigrahi, Advocate was engaged to argue the appeal on behalf of the appellant. He was supplied with the paper book and granted time to prepare the case. After going through the paper book and case records, he placed the impugned judgment as well as the statements of the victim and her sister. Learned counsel submitted that the impugned judgment and order of conviction is not sustainable in the eye of law and when the learned trial Court has come to a finding that the appellant had sexual intercourse with the victim with her full consent and no clinching material has been established by the prosecution to show that the victim was below sixteen years of age at the time of occurrence, therefore, the order of conviction of the appellant under section 376 of the Indian Penal Code is not sustainable in 7 the eye of law. He further contended that the appellant was allowed to enter into the house and there was no criminal trespass and therefore, the ingredients of offence under section 451 of the Indian Penal Code are not attracted.
Mr. Prem Kumar Patnaik, learned Addl. Govt.
Advocate appearing on behalf of the State on the other hand submitted that the victim has stated her age to be thirteen years at time of her deposition though she has stated her age to be fifteen years at the time of lodging of the F.I.R. It is contended that except giving a suggestion, nothing has been elicited in the cross-examination to create any doubt about the age which has been given by the victim. It is further submitted that the evidence of the victim regarding her age is corroborated by the evidence of the doctor (P.W.14) who has stated that on physical, dental and radiological findings, the age of the victim was estimated to be above 13 and below 15. It is contended that in absence of any documentary evidence like birth certificate and educational certificate, when the medical evidence relating to the age gets corroboration from the victim's evidence, the finding of the learned trial Court that the victim was below 16 years of age as on the date of occurrence should not be disturbed. It is further contended that since the victim was below 16 years of age, in view clause sixthly of section 375 of the Indian Penal 8 Code, her consent, if any, is immaterial and therefore, the learned trial Court has rightly convicted the appellant under section 376 of the Indian Penal Code. He further contended that the victim and her sister have stated that in the midnight, the appellant committed house trespass and that part of the evidence has remained unchallenged and therefore, the learned trial Court was justified in convicting the appellant under section 451 of the Indian Penal Code. He further contended that since there is no illegality or infirmity in the impugned judgment, the appeal should be dismissed.
8. In this case, the age of the victim is one of the prime factor which is to be decided first before proceeding to the other aspects. The victim (P.W.3) has stated her age to be thirteen years when she gave her evidence in Court on 07.10.2005. She stated her age to be fifteen years in the first information report which was lodged on 21.02.2005. The victim has admitted in her cross-examination that she had mentioned her age to be fifteen years in the first information report. Therefore, while deposing in Court, the victim has reduced her age for two years. A suggestion was given by the defence to the victim that she was 19 years of old which was denied by her. On going through the cross-examination of the victim, so far as the age aspect is concerned, I find nothing has been elicited to come to a finding 9 that the victim was either sixteen years of age or above. It cannot be lost sight of the fact that the prosecutrix herself and her father are illiterate persons and rustics. The prosecutrix has not taken any schooling. The other family members of the victim who have been examined in the case i.e. her elder sister (P.W.4) and her father (P.W.5) is silent on the age of the victim. Dr. Geeta Sahu (P.W.14) who examined the victim on 22.02.2005 i.e. the next day of lodging of the first information report has stated that from the physical, dental and radiological findings, the age of the victim was found to be about thirteen years and below fifteen years. The report which was given by P.W.14 has been marked as Ext.7. Except putting a bald suggestion to the doctor that the report was not a proper one, nothing has been elicited in her cross-examination to discard her evidence relating to the assessment of age of the victim. The defence has also not adduced any evidence to show that the victim was sixteen years of age or above at the time of occurrence.
In case of State of Karnataka -Vrs.- Bantara Sudhakara @ Sudha reported in (2008) 11 Supreme Court Cases 38, it is held that merely because the doctor's evidence showed that the victim belong to the age group of 14 to 16 years, to conclude that two years of age has to be added to the upper age limit is without any foundation. In case of State of 10 U.P. -Vrs.- Chhoteylal reported in (2011) 48 Orissa Criminal Reports (SC) 559, it is held that there is no such rule much less an absolute one that two years have to be added to the age determined by a doctor.
In the present case, when the evidence of the victim in Court is that she was thirteen years of age and as per the F.I.R., she was fifteen years of age and the same gets corroboration from the evidence of the doctor (P.W.14) who has assessed the age of the victim to be about thirteen years and below fifteen years and nothing has been elicited from the evidence of either the victim or the doctor or any other evidence has been brought on record by the defence that the victim was aged about sixteen years or above, I am of the view that the finding of the learned trial Court that as on the date of alleged incident, the victim was below the age of sixteen years is quite justified and there is no illegality or perversity in such finding.
9. Coming to the evidence of the victim (P.W.3) regarding the commission of rape, she has stated that on the date of occurrence, the appellant forcibly opened the backside of the door of her house and entered into her bedroom and on seeing her, P.W.4 shouted and asked the appellant about his identity to which the appellant replied that he was in love with the victim and he would not cause any harm to the victim. The 11 victim further stated that the appellant frightened P.W.4 as a result of which P.W.4 ran away to a side room and then the appellant proceeded the commit sexual intercourse with her for two times despite her protest. The victim further stated that after committing sexual intercourse with her, the appellant slept with her till the morning and when her parents came and knocked the door, hearing the voice of her parents, the appellant fled away from the house through the back door. The victim has further stated that she worked in the house of the appellant as maidservant for about one year and during the said period, the appellant committed sexual intercourse with her on several occasions. In the cross-examination, the victim has stated that her house is adjacent to the house of the appellant and the main door of her house faces to the backyard of the house of the appellant intervened by a road. She further stated that she cannot say as to how the appellant effected his entrance into the house. She further stated in the cross-examination that after five minutes of committing the first sexual intercourse, the appellant again committed sexual intercourse with her for the second time. She further stated that she did not raise any protest at the time of commission of sexual intercourse with her and her elder sister also did not raise any protest nor raised any hulla during the commission of offence out of fear.
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The evidence of the victim is corroborated by her elder sister who has been examined as P.W.4 who has stated that she and the victim were sleeping inside the room by bolting the door of the house and a lamp was burning in the room and the appellant put a step on her for which she woke up from the bed and found the presence of the appellant in the room and on seeing the appellant when she raised hulla, the appellant frightened her and stated that he was in love with the victim for which she fled away to a side room and thereafter the appellant committed sexual intercourse with the victim for two times and after committing sexual intercourse, the appellant slept with the victim for about one hour. She further stated that her parents came and knocked the door and the appellant escaped from the spot through the backdoor. In the cross-examination, she has stated that the appellant broke open the backdoor of the house and effected his entrance and she had shown the broken door to the investigating officer. She further stated that she did not enter into the bed room of the victim during the presence of the appellant. The investigating officer (P.W.12) on the other hand has stated that the backdoor of the house of the victim was in good condition by the time of inspection.
Thus the materials on record indicate that the victim had kept physical relationship with the appellant on many 13 occasions prior to the date of occurrence. The doctor who has examined the victim has stated that she was accustomed to sexual intercourse. The prosecution case is that the appellant effected his entry into the house of the victim when her parents were absent in the night. In view of the position of the backdoor of the house of the victim as stated by the Investigating Officer, the forcible entry part of the appellant is not acceptable. The appellant committed sexual intercourse twice with the victim on the date of occurrence and slept with her till the morning when the elder sister was present in the adjacent room having knowledge about the occurrence. In view of the surrounding circumstances and the evidence of the victim as well as her sister, the learned trial Court is justified in observing that P.W.4 was a tacit supporter of the victim and the appellant and the fact that the appellant had sexual intercourse with the victim twice and thereafter, he slept with the victim is a sufficient indication that she was a consenting party.
Even if the victim had consent to the sexual intercourse with the appellant but in view of the finding regarding her age to be under the sixteen years, such consent is no consent in the eye of law.
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Clause sixthly to section 375 of the Indian Penal Code prior to Criminal Law (Amendment) Act, 2013 (13 of 2013) stated that a man is said to commit "rape" who has sexual intercourse with a woman with or without her consent, when she is under sixteen years of age. 2013 amendment raised the age from 'sixteen years' to 'eighteen years'. The age of consent is the minimum age at which a woman is considered to be legally competent to consent to sexual acts. At such age of the woman, a man is legally permitted to engage in sexual activity with her with consent. The woman below that age is not legally able to give consent to sexual activity and such activity may result in prosecution of the offender for statutory rape. The woman below the minimum age is regarded as the victim and her sex partner is known as the offender. The purpose of fixing an age of consent is to protect an underage woman from sexual advances by the offender.
In case of State of Rajasthan -Vrs.- N.K. reported in A.I.R. 2000 Supreme Court 1812, it is held that the consent is no defence if the victim has been proved to be under sixteen years of age. If she be of sixteen years of age or above, her consent cannot be presumed; an inference as to 15 consent can be drawn if only based on evidence or probabilities of the case.
Therefore, when the victim was under sixteen years of age at the time of occurrence and the evidence on record indicates that the appellant had sexual intercourse with the victim on the date of occurrence, I am of the view that the learned trial Court was justified in convicting the appellant under section 376 of the Indian Penal Code.
The occurrence has taken place inside the bed room of the victim. The evidence on record indicates that the appellant committed house trespass in the night to commit the offence of rape. Even if the door was found to be intact as per the evidence of the investigating officer but that would not falsify the ingredients of offence under section 451 of the Indian Penal Code.
Therefore, the impugned judgment and order of conviction of the appellant under sections 376 and 451 of the Indian Penal Code so also the sentence imposed by the learned trial Court suffers from no infirmity or perversity and accordingly, the same is upheld.
10. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of 16 the offence committed and the family background, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Phulbani to examine the case of the victim after conducting the 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, Phulbani for compliance.
Lower Court's record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action.
11. Before parting with the case, I would like to put on record my appreciation to Mr. Debasis Panigrahi, the learned counsel for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to his professional fees which is fixed at Rs.2,500/-.
12. In view of the above discussions, the criminal appeal being devoid of merits, stands dismissed.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 26th October, 2017/Kabita/Sukanta