Orissa High Court
Sukumar Gouda vs State Of Odisha on 30 August, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.33 of 2020
Appeal under section 374 of Cr.P.C. from judgment and order
dated 22.01.2020 passed by the Additional Sessions Judge -cum-
Special Judge, Malkangiri in T.R. Case No.15 of 2019.
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Sukumar Gouda ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Ms. Manasi Dash
Amicus Curiae
For Respondent: - Mr. Priyabrata Tripathy
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: 30.08.2023
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S.K. SAHOO, J. Today is Raksha Bandhan, 2023 which is a special
day to celebrate the bond between the siblings to express love
and gratitude for each other. Brothers pledge to protect their
sisters, love and cherish them, and shower them with presents
while sisters tie 'Rakhi' on their brothers' wrists, place tilak on
their foreheads, and pray for their prosperity and long lives. It is
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said that "brothers and sisters are as close as hands and feet." A
brother for a sister is a protector, confidant and a lifelong friend.
They share a unique bond that nothing can replace. A sister is a
treasure beyond measure for the brother whereas a brother is a
hero in disguise and a role model for the sister. Can anyone
forget that beautiful song from Hindi film "Chhoti Bahen"
(1959) in the voice of Nightingale of India Late Lata Mangeshkar
"Bhaiya Mere Rakhi Ke Bandhan Ko Nibhana, Bhaiya Mere Choti
Bahen Ko Na Bhulana".
It is both shocking as well as ironical to hear this
case and render the judgment on 'Raksha Bandhan' day, on
which day a brother takes the solemn pledge not only to protect
his sister but also to nurture her till his last breath. Here is a
case where the accusation has been levelled against an elder
brother to have committed rape on her own sister when she was
hardly fourteen years of age and to have made her pregnant for
which she delivered a girl child at Swadhar Home, Malkangiri.
The appellant Sukumar Gouda faced the trial in the
Court of learned Addl. Sessions Judge -cum- Special Judge,
Malkangiri in T.R. Case No.15 of 2019 for commission of offences
punishable under sections 376(3)/376(2)(n) of the Indian Penal
Code (hereinafter 'I.P.C.') on the accusation that in between
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01.05.2018 to 10.05.2019 at village Raghuramguda, he
committed rape on the minor victim girl, who was under sixteen
years of age repeatedly, for the offence under section 506 of the
I.P.C. on the accusation that he committed criminal intimidation
by threatening the minor victim girl to do away her life and also
for the offence under section 6 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter 'POCSO Act') on the
accusation that he committed aggravated penetrative sexual
assault on the victim girl.
Learned trial Court vide impugned judgment and
order dated 22.01.2020 found the appellant guilty and sentenced
him to undergo rigorous imprisonment for a period of twenty
years and to pay a fine of Rs.40,000/- (rupees forty thousand),
in default, to undergo rigorous imprisonment for a further period
of two years for the offence under section 6 of the POCSO Act
and sentenced to undergo rigorous imprisonment for a period of
two years for the offence under section 506 of the I.P.C. and the
sentences were directed to run concurrently, however no
separate sentence was awarded for the offence under sections
376(3)/376(2)(n) of the I.P.C. in view of section 42 of the
POCSO Act.
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Prosecution Case:
On 13.05.2019, the victim (P.W.6) who was aged
about fourteen years, lodged the first information report (Ext.11)
before the Inspector in-charge of Malkangiri police station and
accordingly, Malkangiri P.S. Case No.105 dated 13.05.2019 was
registered under sections 376(3)/376(2)(n)/506 of the I.P.C. and
section 6 of the POCSO Act against the appellant.
It is the case of the prosecution as per the F.I.R. that
since last one year prior to the lodging of the F.I.R., the
appellant who is her elder brother was frequently committing
sexual intercourse with her in absence of the other family
members by threatening her with dire consequence. Out of fear,
the victim could not disclose about the same before anyone. Two
months prior to the lodging the of the F.I.R., her monthly
menstruation was stopped for which she disclosed about the
same before her friend Pinki Bhumia (P.W.16) who took her to
Anganwadi Didi and the victim was interrogated there and she
was asked to come on the next day. On the next day, when the
victim again approached the Anganwadi Didi with P.W.16, she
asked her about her health condition and the victim disclosed
before Didi about the misdeeds of the appellant in committing
rape on her repeatedly. The Anganwadi Didi tested her twice
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with the medical kits available with her to determine pregnancy
and after the tests, it was confirmed that the victim had become
pregnant. With the help of Childline member, C.D.P.O.,
Malkangiri and others, the victim was taken from her home to
Swadhar Home, Malkangiri where she stayed.
After registration of the case, Inspector in-charge of
Malkangiri Police Station directed Santoshi Barik (P.W.26), Sub-
Inspector of Police attached to Malkangiri police station to take
up investigation of the case and accordingly, P.W.26 examined
the informant -cum- victim (P.W.6) and other witnesses, seized
the wearing apparels of the victim under seizure list marked as
Ext.4, sent her for medical examination to D.H.H., Malkangiri.
The appellant was arrested and his wearing apparels were seized
under seizure list marked as Ext.7. The I.O. sent the appellant to
D.H.H., Malkangiri for examination and opinion. The biological
samples of the victim along with command certificate being
produced by P.W.2 were seized under seizure list Ext.5. One
command certificate along with the biological samples of the
appellant was seized on production by P.W.4 under seizure list
Ext.8, whereafter the appellant was forwarded to the Court. On
15.05.2019, the I.O. made prayer to the Court to record the
statement of the victim under section 164 Cr.P.C. which was
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accordingly recorded by the learned J.M.F.C., Malkangiri which is
marked as Ext.12. Thereafter she visited the spot i.e. the house
of the victim and prepared the spot map (Ext.18). She gave
intimation to C.W.C., Malkangiri and D.C.P.O., Malkangiri for
welfare and rehabilitation of the victim. She also made prayer to
the Secretary, D.L.S.A., Malkangiri for payment of compensation
to the victim under Victim Compensation Scheme. She also made
prayer to the Court to send the seized wearing apparels of both
the victim and the appellant along with their biological samples
to Deputy Director, R.F.S.L., Berhampur for chemical
examination and opinion. The I.O. received the medical
examination reports of the appellant so also the victim from
D.H.H., Malkangiri which were marked as Ext.10 and Ext.13
respectively. On 21.06.2019, she seized the school admission
register of Mukaguda Govt. Primary School on production by the
Headmaster of the school under seizure list Ext.14 where the
victim was once prosecuting her studies and the school
admission register indicated the date of birth of the victim to be
05.08.2005. The original school admission register was left in the
zima of the Headmaster of the school under a zimanama after
keeping the Xerox copy of the relevant portion of the register
which is marked as Ext.15 and on completion of investigation, on
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11.07.2019, the I.O. (P.W.26) submitted the charge sheet
against the appellant under section 376(3)/376(2) (n)/506 of the
I.P.C. and section 6 of the POCSO Act.
After submission of charge sheet, the learned trial
Court framed charges 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.
Prosecution Witnesses and Documents Exhibited by the
Prosecution:
In order to prove its case, the prosecution examined
twenty seven witnesses.
P.W.1 Mamata Sahu was the constable attached to
Malkangiri police station, who is a witness to the seizure of
command certificate and receipt of R.F.S.L. under seizure list
Ext.1, seizure of wearing apparels of the victim as per seizure list
Ext.4 and biological samples of the victim as per seizure list
Ext.5.
P.W.2 Seemarani Biswas is a witness to the seizure
of wearing apparels of the victim as per seizure list Ext.4 and
biological samples of the victim as per seizure list Ext.5.
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P.W.3 Binod Kumar Moharana was the constable
attached to Malkangiri police station, who is a witness to the
seizure of command certificate and receipt of R.F.S.L. as per
seizure list Ext.1.
P.W.4 Narasingh Majhi was the constable attached to
Malkangiri police station, who is a witness to the seizure of
wearing apparels of the appellant as per seizure list Ext.7 and
biological samples of the appellant along with one command
certificate as per seizure list Ext.8.
P.W.5 Dr. Surama Kumari Behera, O. & G. Specialist,
District Headquarters Hospital, Malkangiri, examined the victim
on police requisition on 13.05.2019 and found the victim to be
capable of sexual intercourse and there were old tears in her
hymen and further found the victim to be pregnant about
nineteen weeks and six days. She also collected the biological
samples of the victim. She proved her report marked as Ext.10.
P.W.6 is the victim, who supported the prosecution
case and she also stated about the seizure of her wearing
apparels as per seizure list Ext.4.
P.W.7 Sambaru Gouda is the father of the victim as
well as the appellant, who stated that victim disclosed before
him that the appellant committed rape on her for which she
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became pregnant and out of shame, she was not disclosing
about the same.
P.W.8 Sambari Bhumia was the mother of Pinki
(P.W.16), who was the best friend of the victim and she stated
to have detected pregnancy of the victim by touching her belly
and further stated that the victim disclosed before her that she
became pregnant through the appellant and accordingly, she
advised the victim to go to Anganwadi Didi of the village.
P.W.9 Kalidas Sagaria is the scribe of the first
information report.
P.W.10 Sani Kope was working as Anganwadi Worker
at Raghuramguda Anganwadi Centre and she stated about
testing of urine of the victim by pregnancy testing kits, which
was found to be positive and she further stated about the
disclosure made by the victim regarding forcible sexual
intercourse on her by the appellant.
P.W.11 Gurubari Singh was the health worker, who
also stated like P.W.10 about the pregnancy test of the victim
conducted with the testing kits found to be positive and the
victim's disclosure about the commission of rape on her by the
appellant.
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P.W.12 Gurubari Sarabu was working as Asha Karmi
of Mukaguda and Raghuramguda and she stated similarly like
P.Ws.10 and 11.
P.W.13 Subarna Gouda stated about the disclosure
made by the victim regarding commission of rape on her by the
appellant on a number of occasions in absence of her father.
P.W.14 Damuni Kope was the Helper in the
Anganwadi Centre, Raghuramguda, who stated similarly like
P.Ws.10, 11 and 12.
P.W.15 Rupa Bhumia stated about the pregnancy
test conducted of the victim which was found to be positive.
P.W.16 Pinki Bhumia was the friend of the victim,
who stated about the disclosure made by the victim before her
regarding commission of rape on her forcibly by the appellant,
which led her to become pregnant. She also disclosed about the
pregnancy test of the victim conducted at Anganwadi Centre,
which was found to be positive.
P.W.17 Bithika Baidya was the Counselor of Swadhar
Home, Malkangiri, who stated that during counseling the victim
disclosed about the appellant keeping physical relationship with
her and threatening her not to disclose the matter before
anyone. She further stated that when the victim was found to be
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pregnant after the test was conducted at Anganwadi Centre,
Raghuramguda as per the direction of C.W.C., Malkangiri, the
victim was kept at Swadhar Home, Malkangiri.
P.W.18 Laxman Majhi was the constable attached to
Malkangiri police station, who is a witness to the seizure of
biological samples of the victim as per seizure list Ext.5 and
biological samples of the appellant and one command certificate
as per seizure list Ext.8.
P.W.19 Sudeshana Rout was the Protection Officer,
who stated that after the victim was rescued from her village
coming to know about her pregnancy by the appellant, she was
produced before Child Welfare Committee, Malkangiri and the
Chairperson of C.W.C. reported the matter at Malkangiri police
station.
P.W.20 Jyotish Kumar Pati was the Coordinator, Child
line, who stated about the rescue of the victim from her village
and disclosure made by the victim regarding commission of rape
on her by the appellant.
P.W.21 Rupendra Nayak was the Team Leader of
Sub-Centre Child line, K.Guma also stated about the rescue of
the victim from village Raghuramguda and her disclosure made
regarding commission of rape on her by the appellant.
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P.W.22 Dr. Narayan Prasad Patra was the Medical
Officer attached to D.H.H., Malkangiri, who examined the
appellant on police requisition on 19.05.2019 and found that he
was capable of committing sexual intercourse. He collected
biological samples of the appellant and proved his report marked
as Ext.13.
P.W.23 Biswanath Betty was the Headmaster of
Mukaguda Government Primary School, who proved the school
admission register where the victim was prosecuting her studies
and the date of birth of the victim mentioned in such register to
be 05.08.2005.
P.W.24 Ganga Baka is a witness to the seizure of
school admission register of Mukaguda Government Primary
School from the Headmaster of that school under seizure list
Ext.14.
P.W.25 Laxmi Mathapadia was the teacher of
Mukaguda Government Primary School, who also proved the
seizure of the school admission register as per seizure list Ext.14
and taking of zima of such register by the Headmaster as per
zimanama Ext.15.
P.W.26 Santoshi Barik was the S.I. of Police,
Malkangiri police station, who is the investigating officer of the
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case and she submitted charge sheet on completion of
investigation.
P.W.27 Kailash Chandra Mohanty was the constable
attached to Malkangiri police station, who is a witness to seizure
list Ext.1, Ext.7 and Ext.8.
The prosecution exhibited twenty five documents.
Ext.1, Ext.4, Ext.5, Ext.7, Ext.8 and Ext.14 are the seizure lists,
Ext.2, Ext.6 and Ext.9 are the command certificates, Ext.3 is the
receipt of R.F.S.L., Ext.10 and Ext.13 are the medical reports,
Ext.11 is the first information report, Ext.12 is the statement of
the victim under section 164 Cr.P.C., Ext.15 is the zimanama,
Ext.16 and Ext.17 are the medical requisitions, Ext.18 is the spot
map, Ext.19 is the intimation given to C.W.C., Malkangiri, Ext.20
is the intimation given to D.C.P.O., Malkangiri, Ext.21 is the
prayer to the Secretary, D.L.S.A., Malkangiri for victim
compensation, Ext.22 is the prayer petition to send the exhibits
to Deputy Direction, R.F.S.L., Berhampur, Ext.23 is the
requisition to Headmaster, Government Primary School,
Mukaguda, Ext.24 is the forwarding letter of sending exhibits to
Deputy Director, R.F.S.L., Berhampur and Ext.25 is the original
admission register (Vol.II).
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Defence Plea and Defence Witness:
The defence plea of the appellant is one of complete
denial and it was suggested to the victim that the appellant had
not made any sexual intercourse with her and that she became
pregnant through others.
The appellant examined himself as D.W.1 and stated
that he had not raped the victim nor threatened her at any point
of time.
Findings of the Trial Court:
The learned trial Court, after assessing the oral and
documentary evidence on record, has been pleased to hold that
the prosecution has not proved the chemical examination report
of R.F.S.L., Berhampur, though the same is available in the
record. The learned trial Court further held that the evidence of
the victim taken together with the evidence of P.W.23, the
Headmaster, Mukaguda Govt. Primary School, Medical Officer
(P.W.5) and the facts mentioned in Ext.12, 14 and 25, it is
proved that during the period of occurrence, the victim was
minor aged about fourteen years i.e. below sixteen years. It was
further held that the evidence of the victim is corroborated by
the evidence of her friend (P.W.16) and the evidence of the
victim regarding her pregnancy is corroborated by the medical
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evidence. It was further held that the evidence of the victim
taken together with her friend Pinki Bhumia (P.W.16) and others
also with the medical officers, it is proved that the appellant
committed forcible sexual intercourse with the victim time and
again with a threatening to kill her in the event the matter was
disclosed before anyone and caused her pregnancy and that the
victim became the mother of the female child due to the forcible
sexual intercourse by the appellant. The learned trial Court
disbelieved the evidence of D.W.1 (the appellant himself) and
held that there is nothing to disbelieve that the victim gave birth
to a female child while she was at Swadhar Home, Malkangiri
and that the female child was born out of the physical
relationship made by the appellant on the victim. The learned
trial Court turned down the contentions raised by the learned
defence counsel regarding delay in lodging the F.I.R. and held
that delay in lodging has been sufficiently explained by the
prosecution and moreover, in a case of sexual assault, delay in
lodging of F.I.R. cannot be a ground to reject the accusation of
rape. It was further held that non-conducting of D.N.A. test in
respect of the new born baby of the victim will not hit at the root
of the prosecution case. It was further held that in view of
sections 29 and 30 of the POCSO Act, 2012, the Court shall
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presume the existence of culpable mental state to draw
presumption regarding commission of offence as alleged by the
prosecution. While concluding, the learned trial Court observed
that the appellant was sexually potent and he has committed
rape on the victim who is nonetheless that his own younger
sister repeatedly with a threatening to kill her in the event the
matter is disclosed before anyone and caused her pregnancy and
later on she gave birth to a female child and therefore, it was
held that the prosecution has successfully brought home the
charge under sections 376(3)/376(2)(n)/506 of the I.P.C. read
with section 6 of the POCSO Act.
When the matter was taken up on 16.08.2023, this
Court after going through the evidence on record so also the 164
Cr.P.C. statement of the victim asked learned counsel for the
State to obtain instruction about the status of the victim, her
child so also the marital life of the appellant. It was further
directed to obtain instruction whether the victim has been paid
any compensation or not and if so, what is the amount of such
compensation.
Today, the learned counsel for the State has
produced the written instruction received from the Inspector in-
charge of Model P.S., Malkangiri dated 24.08.2023 wherein it is
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mentioned that the victim had married to a person and staying in
the house of the her in-laws and the child of the victim has been
produced before Specialized Adoption Agency (S.A.A.), Koraput
for care and protection and the victim has received
compensation from D.L.S.A., Malkangiri of Rs.4,00,000/- (rupees
four lakhs) on 09.07.2020. The written instruction is taken on
record.
Contentions of the Parties:
Ms. Manasi Dash, learned counsel who was engaged
as advocate for the appellant as per order of this Court dated
07.01.2021 contended that the victim being examined as P.W.6
failed to say about the name of her school where she was
prosecuting her studies and no one else has stated about the
same and therefore, proving of the school admission register of
Mukaguda Govt. Primary School by P.W.23, the Headmaster of
the school wherein the date of birth of the victim was mentioned
is no way helpful to the prosecution. Learned counsel further
submitted that neither the victim (P.W.6) nor her father (P.W.7)
has stated about the date of birth of the victim and even though
it is the case of the prosecution that on account of the repeated
sexual intercourse committed by the appellant on the victim, she
became pregnant and gave birth to a female child but no D.N.A.
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test has been conducted to determine the paternity aspect.
Learned counsel further argued that the victim was working as a
maid servant in different houses of her village as stated by her
father and therefore, somebody else making her pregnant cannot
be ruled out and in order to eliminate the same, the prosecution
was duty bound to prove the D.N.A. test report which has not
been done. Learned counsel further argued that the victim could
not say the date when the appellant kept physical relationship
with her for the first time and last. Inordinate delay in lodging of
the F.I.R. has not been explained by the prosecution and
therefore, it is a fit case where the benefit of doubt should be
extended in favour of the appellant.
Mr. Priyabrata Tipathy, learned Additional Standing
Counsel, on the other hand, supported the impugned judgment
and contended that in view of the relationship between the
victim and the appellant and when the victim was a minor girl
and the appellant had threatened her with dire consequences not
to disclose the matter before anybody, in such a scenario the
non-disclosure of commission of rape by the victim on her at the
first instance before anybody and the delay in lodging the F.I.R.
are not factors to dislodge the prosecution case particularly when
the mother of the victim is dead who could have been the first
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person before whom disclosure about such heinous offence
would have been made. It is argued that the victim has
categorically stated as to how since one year prior to the
occurrence, the appellant was keeping physical relationship with
her forcibly and committing sexual intercourse and threatening
her to kill for which she became pregnant which was detected
when the tests were conducted at the Anganwadi Centre by
using medical kits. It is further argued that the evidence of the
victim has remained unshaken in the cross-examination. The
evidence of the victim is corroborated by the evidence of her
friend (P.W.16), her father (P.W.7) and others before whom she
disclosed against the appellant to have committed rape on her
repeatedly. The doctor (P.W.5), who examined the victim on
13.05.2019 on police requisition also found that her hymen had
old tears and the victim was pregnant about nineteen weeks and
six days at that time. The evidence has come on record that the
victim was staying in Swadhar Home, Malkangiri after her
pregnancy was detected with the help of CDPO, Malkangiri and
Child Welfare Committee member of Malkangiri where she
delivered a female child. It is further argued that the chance of
false implication of the appellant who is none else than the elder
brother of the victim is completely ruled out and the defence
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plea that since she was working as a maid servant in the village,
she was made pregnant by others and the evidence of D.W.1 has
been rightly disbelieved by the learned trial Court. The narration
made in the first information report by the victim about the
occurrence and her statement recorded under section 164 of
Cr.P.C. by the learned J.M.F.C., Malkangiri and her evidence in
Court is consistent and the learned trial Court has rightly found
the appellant guilty of the offences charged and therefore, the
Jail Criminal Appeal should be dismissed.
Analysis of Evidence:
Adverting to the contentions of the learned counsel
for the respective parties, it is not disputed that the appellant
Sukumar Gouda is the elder brother of the victim which is
established not only through the evidence of the victim herself,
who examined as P.W.6, by her father (P.W.7). The appellant
being examined as D.W.1 has also admitted that the victim is his
own younger sister.
Age of the Victim:
Coming to the age of the victim, the victim has
stated in her cross-examination that she was reading in the
village school and has read up to Class-V but could not say about
the name of her school. No suggestion has been given to the
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victim in the cross-examination that she had never gone to any
school for study purpose. The Headmaster of Mukaguda
Government Primary School being examined as P.W.23 has
stated that P.W.26, the S.I. of Malkangiri police station seized
the school admission register as per seizure list Ext.14 and gave
the same in zima as per zimanama Ext.15 and he further stated
that he knew the victim who was admitted in the school on
18.04.2011 and as per the school admission register, her date of
birth was 05.08.2005. The original school admission register
wherein the date of birth and date of admission was mentioned
has been marked as Ext.25. Nothing has been brought out in the
cross-examination of P.W.23. Therefore, the combined reading of
the evidence of P.W.6, the victim and P.W.23, the Headmaster,
there is nothing to doubt that the victim was prosecuting her
studies in Mukaguda Government Primary School where her date
of birth was mentioned in the school admission register as
05.08.2005 and that she left her studies in Class-V.
Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 which deals with presumption
and determination of age of a person by the Committee or
Board, states that in the process of such age determination, the
date of birth certificate from the school or the matriculation or
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equivalent certificate from the concerned examination Board, if
available, is to be first taken into account and in absence
thereof, the birth certificate given by the corporation or a
municipal authority or a panchayat is to be considered and in
absence of any of such documents, the age shall be determined
by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or
the Board. In view of the settled principle of law for
determination of age of the victim also, the same principle is to
be adopted. Therefore, if the date of birth of the victim as
mentioned in the school admission register of the Mukaguda
Government Primary School is taken as 05.08.2005, then as on
the date of occurrence, the victim was aged about 14 years and
therefore, the learned trial Court has rightly held that the
prosecution has proved that on the date of incident, the victim
was minor and aged about 14 years i.e., below 16 years.
Analysis of victim's evidence:
The victim being examined as P.W.6 has stated her
age to be fourteen years on the date of her deposition which was
recorded on 14.10.2019. The learned trial Court put some
questions to her and recorded the answers and from the
questions put and answers given, the learned trial Court was of
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the opinion that the victim was giving rational answers and
therefore, she was held to be competent to give evidence and
accordingly, her evidence was recorded. The victim (P.W.6)
stated that the appellant is her elder brother and one year prior
to the occurrence, the appellant was keeping physical
relationship with her forcibly and further stated that on the date
of occurrence, the appellant committed sexual intercourse with
her forcibly and when she told the appellant to disclose the
matter before her father, the appellant threatened her to kill in
the event the matter got disclosed before her father and out of
fear, she remained silent. She further stated that due to physical
relationship, she became pregnant for two months and she
disclosed the matter before her friend Pinki Bhumia (P.W.16) and
then P.W.16 took her near her elder mother and disclosed about
her pregnancy. Then P.W.16 took her to the Anganwadi Didi,
who tested twice with pregnancy testing kit and found her
pregnancy positive. She further stated that the Anganwadi Didi
informed the matter to C.D.P.O., Malkangiri and Child Welfare
Committee members of Malkangiri, who took her to the Swadhar
Home, Malkangiri and at Swadhar Home, she gave birth to a
female child. She further stated that her statement was recorded
under section 164 of the Cr.P.C. which she proved as Ext.12 and
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she also proved the seizure of her wearing apparels as per
seizure list Ext.4 and also the F.I.R. marked as Ext.11. In the
cross-examination, the victim (P.W.6) stated that the appellant
was a driver and he used to stay outside the village, but he used
to come to visit to his house and he was a married person and
her sister-in-law, the wife of the appellant was residing in her
parental house situated in village Lamtaguda. She further stated
that the appellant used to take liquor and he did not maintain
the family whereas her father was maintaining the family. Of
course, she stated that she could say about the dates, when the
appellant kept physical relationship with her for the first time
and last time, but in my humble view, the same cannot be a
factor to disbelieve her evidence. On going through 164 of the
Cr.P.C. statement of the victim also, it appears that her
statement is consistent with what she had deposed in the Court
during trial. She specifically denied the suggestion given by the
learned defence counsel that the appellant had not made any
sexual intercourse with her and that she became pregnant
through others. The victim stated that Pinki Bhumia (P.W.16)
was her best friend.
P.W.16 has stated that the victim disclosed before
her that her menstruation had stopped and coming to know
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about the same, she along with the victim went near a DURANI,
who is a person knew about pregnancy, and belonged to their
village and that DURANI by touching the belly of the victim could
come know that the victim was pregnant. Then the victim
disclosed that the appellant made sexual intercourse with her
forcibly for which she became pregnant. She further stated that
the DURANI advised her to go to the Anganwadi centre to take
tablet for abortion of her pregnancy. Accordingly, she along with
the victim came to the Anganwadi Centre where the Anganwadi
Didi, Anganwadi helper and Raupa Bhumia were present there.
The pregnancy test of the victim was conducted through
pregnancy test kits and it was found her pregnancy to be
positive. P.W.16 further stated that the victim disclosed that the
appellant made sexual intercourse with her forcibly with a
threatening to kill her in the event the matter was disclosed
before anyone. In the cross-examination, P.W.16 admitted that
the victim was working as a maid servant in the house of
different persons after leaving study. She denied the suggestion
that the victim became pregnant through other persons than the
appellant. Nothing has been brought in the cross-examination of
P.W.16 to disbelieve her evidence. Therefore, the evidence of the
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victim (P.W.6) gets corroboration from the evidence of her friend
(P.W.16).
P.W.7 is none else than the father of appellant as
well as the victim and he came about know the pregnancy of the
victim from the victim herself and he stated that the victim was
not disclosing about the matter out of shame. Therefore, the
evidence of P.W.7 also corroborates the evidence of the victim
(P.W.6) and P.W.16.
The Anganwadi Worker being examined as P.W.10,
Health Worker being examined as P.W.11, Asha Karmi being
examined as P.W.12 have also stated that the pregnancy test of
the victim was conducted with the medical kits and it was found
to be positive and that they came to know from the victim that
the appellant kept physical relationship with the victim forcibly
against her will for which she became pregnant.
The doctor (P.W.5), who examined the victim on
police requisition has also stated about the detecting the
pregnancy of the victim to be 19 months and 6 weeks at the
time of examination on 13.05.2019.
All these evidence clearly indicate that on account of
repeated forcible sexual intercourse by the appellant, the victim
(P.W.6) became pregnant and she did not disclose the matter
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earlier because of threat given by the appellant and when the
pregnancy aspect was detected after due examination in the
Anganwadi Centre, the victim disclosed before others and she
was taken to Swadhar Home, Malkanagiri where she gave birth
to a female child. The age of the victim has also been proved to
be fourteen years.
The contention of delay in lodging the first
information report in a case of this nature particularly in view of
the relationship between the parties has been rightly turned
down by the learned trial Court as it is very natural keeping in
view the victim's future and the prestige of the family, the family
members take time to lodge the F.I.R. in such type of cases.
It is well settled law that if the version of the
prosecutrix is believed, basic truth in her evidence is
ascertainable and if it is found to be credible and consistent, the
same would form the basis of conviction. Corroboration is not a
sine qua non for a conviction in a rape case. The evidence of a
victim of sexual assault stands at par with the evidence of an
injured witness and is entitled to great weight, absence of
corroboration notwithstanding. If the evidence of the victim does
not suffer from any basic infirmity and the 'probabilities factor'
does not render it unworthy of credence, as a general rule, there
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is no reason to insist on corroboration, except from medical
evidence, where, having regard to the circumstances of the case,
medical evidence can be expected to be forthcoming.
On careful analysis of the evidence of the victim, it
has created an impression on my mind that she is a reliable and
truthful witness. Her testimony suffers from no infirmity or
blemish whatsoever. I have no hesitation in acting upon her
testimony alone without looking for any 'corroboration', however,
in this case there are ample corroboration available on the record
to lend further credence to the testimony of the victim.
D.N.A. Test Not Sine Qua Non In Rape Cases:
Non-conducting of the D.N.A. test to determine the
paternity aspect of the female child which the victim gave birth
to, in my humble view, cannot be a ground to disbelieve the
evidence of the victim and other prosecution witnesses through
which the charges have been established. Conducting D.N.A. test
is not a sine qua non in cases of rape as such tests are merely
incidental to determine the culpability of an accused for
commission of crime.
Chemical Examination Report Not Proved:
It is strange that even though the chemical
examination report is available on record, but the same has not
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been proved by the prosecution as the learned trial Court has
observed in the impugned judgment. The duty of the Presiding
Judge of a criminal trial is not to watch the proceedings as a
spectator or a recording machine but he has to participate in the
trial by evincing intelligent active interest by putting questions to
witnesses in order to ascertain the truth and see that vital
documents are not left out to be exhibited. A Public Prosecutor
has a wider set of duties than to merely ensure that the accused
is punished. The duties include ensuring fair play in the
proceedings, to see all relevant facts are brought before the
Court to have an effective determination of truth and justice for
all the parties including the victims. It must be noted that these
duties do not allow the Prosecutor to be lax in any of his duties
as against the accused. The Court must ensure that the
Prosecutor is doing his duties with utmost level of efficiency and
fair play. In a criminal trial, the investigating officer, the
Prosecutor and the Court play a very important role. The Court's
prime duty is to find out the truth. The investigating officer, the
Prosecutor and the Court must work in sync and ensure that the
guilty are punished by bringing on record adequate credible legal
evidence. The criminal Court must be alert and it must watch the
actions of the Public Prosecutor carefully.
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Conclusion:
In view of the forgoing discussions, I am of the
humble view that the learned trial Court has rightly held that the
prosecution has successfully brought home the charges against
the appellant under sections 376(3)/376(2)(n)/506 of the I.P.C.
read with section 6 of the POCSO Act. The sentence imposed for
the offence under section 6 of the POCSO Act is the minimum
sentence provided for such offence. The punishment awarded for
the offence under section 506 of the IPC cannot be said to be on
a higher side under any stretch of imagination as such offence
was repeatedly committed whenever rape was committed in
giving threat to the victim.
Accordingly, the Jail Criminal Appeal being devoid of
merit stands dismissed.
Trial Court records with a copy of this judgment be
sent down to the concerned Court forthwith for information.
Before parting with the case, I would like to put on
record my appreciation to Ms. Manasi Dash, 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.7,500/-
(rupees seven thousand five hundred only). This Court also
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appreciates the valuable help and assistance provided by Mr.
Priyabrata Tripathy, learned Additional Standing Counsel.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 30th August 2023/Amit/ RKM/Sipun Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Aug-2023 18:44:22 Page 31 of 31