Orissa High Court
Niranjan Pradhan vs State Of Orissa on 24 June, 2015
Author: S.K.Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRA NO. 05 OF 2007
From judgment and order dated 23.09.2006 passed by the
learned Asst. Sessions Judge, Bhubaneswar in Crl. Tr. No.2/125 of
2006.
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Niranjan Pradhan ........ Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Sidhartha Swain
For Respondent: - Mr. Janmejaya Katikia
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-22.06.2015 Date of Judgment- 24.06.2015
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S.K.SAHOO, J.
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups to deal with rape is that they try to educate woman about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there".
-Kurt Cobaim.
2The appellant Niranjan Pradhan faced trial in the Court of learned Asst. Sessions Judge, Bhubaneswar in Crl. Tr. No.2/125 of 2006 for offence punishable under section 376(2)(f) of Indian Penal Code for committing rape on one 'M' (hereafter 'the victim'), a girl below the age of 12 years on 3.9.2006 at about 10.30 a.m. at Sikharachandi, Bhubaneswar.
The learned trial Court vide impugned judgment and order dated 23.09.2006 found the appellant guilty under section 376(2)(f) Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for a further period of three months.
2. The factual matrix of the prosecution case, as per the first information report (Ext.1) lodged by one Smt. Purnima Naik (P.W.1) before Mahila Police Station, Khurda is that on 3.9.2006 at about 10.30 a.m. while the informant had gone outside to attend her work and the victim who was her daughter and aged about seven years was watching TV in the house of a neighbour, the appellant called the victim to the backyard of the house of one Dilip (P.W.5) and committed rape on her and handed over Rs.5/- to her. It is further stated that P.W.5 is a witness to the said act. Other people of the locality including one Niranjan stated to have 3 seen the appellant carrying the victim. After ascertaining about the incident from the victim, the FIR was lodged.
3. On the basis of the written report presented by P.W.1, Smt. Lalita Parida, Sub-Inspector of Police, Mahila Police Station registered Khurda Mahila P.S. Case No. 144 dated 3.9.2006 under section 376(2)(f) Indian Penal Code and directed one Iti Das (P.W.14), Sub-Inspector of Police, Mahila Police Station to take up investigation.
4. During course of investigation, the I.O. (P.W.14) examined the informant, the victim girl, sent the victim girl for medical examination under police requisition to C.M.O., Capital Hospital. She visited the spot and examined P.W.5 Dilip Behera who identified the spot to her and accordingly prepared the spot map (Ext.10). She also seized the wearing apparels of the victim on production by her mother in presence of the witnesses under seizure list Ext.2. On 4.9.2006 the victim was sent to Capital Hospital for medical examination. The appellant was found in Sikharchandi Basti and P.W.14 sent him to Capital Hospital for medical examination under police requisition. The wearing apparel i.e. Dhoti of the appellant was seized. The I.O. also seized Rs.5/- under seizure list Ext.2, arrested the appellant, received the medical reports of the victim as well as the appellant from Capital 4 Hospital and after completion of investigation submitted charge- sheet against the appellant under section 376(2)(f) Indian Penal Code.
5. 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 charged the appellant under section 376(2)(f) of Indian Penal Code on 16.9.2006 and since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
6. During course of trial, in order to prove its case, the prosecution examined as many as fourteen witnesses.
P.W.1 Purnima Naik is the mother of the victim and she is the informant in the case. She stated to have heard about the occurrence from the victim and accordingly lodged the FIR.
P.W.2 is the victim girl.
P.W.3 Kamala Naik is the grandmother of the victim and she stated to have heard about the occurrence from the victim.
P.W.4 Rama Naik is the father of the victim and he stated that on the date of occurrence at about 10.30 a.m. while he was in his house, some persons brought the victim and he found the wearing apparels of the victim were soiled with mud and she was 5 crying and then the victim stated to have narrated the incident before him.
P.W.5 Dilip Behera found the victim lying on the ground and the appellant sleeping over her. He stated to have rescued P.W.2 and left her in the custody of her grandmother (P.W.3). He is a witness to the seizure of Rs.5/- as well as the wearing apparel of the victim under seizure list Ext.2 and wearing apparel of the appellant under seizure list Ext.3.
P.W.6 Sukanta Mati stated to have rescued the victim from the clutch of the appellant and further stated that the victim narrated the occurrence before him.
P.W.7 Dr. Sarbeswar Acharaya was attached to FMT, Capital Hospital, Bhubaneswar as a Specialist and he examined the appellant on 4.9.2006 on police requisition and proved his report Ext.4.
P.W.8 Dr. Makarananda Beura who was attached to Capital Hospital, Bhubaneswar as O & G Specialist examined the victim on 4.9.2006 and proved his report Ext.6. He also proved the ossification test report (Ext.7/2) of the victim.
P.W.9 Raula Bairiganjan was the Home guard who scribed the written report presented by P.W.1.
6
P.W.10 B. Erama Das stated that on the date of occurrence the victim was watching TV in her house along with her children and that she went for bathing and when she returned at about 10.30 a.m., she found that the victim was not there.
P.W.11 Kalsama Bibi and P.W.12 Saroj Behera did not support the prosecution case for which they were declared hostile.
P.W.13 Lepa Paramanik stated that the victim narrated about the incident before him and they rescued the victim girl and handed her over in her house to her grandmother.
P.W.14 Iti Das is the Investigating Officer.
The prosecution exhibited eleven numbers of documents. Exts.1 is the FIR, Ext.2 and 3 are seizure lists, Ext.4 and Ext.6 are the medical reports, Ext.5 is the X-ray requisition, Ext.7/2 is the ossification test report, Ext.8 is the formal FIR, Ext.9 is the medical requisition, Ext.10 is the spot map and Ext.11 is the requisition for medical examination.
The prosecution also proved four material objects. M.O.I is the frock, M.O.II is the Chadi, M.O.III is the seized coins of Rs.5/- and M.O.IV is the Dhoti.
7. The defence plea of the appellant is one of denial.
8. The learned trial Court vide impugned judgment and order dated 23.09.2006 held that the oral account of the victim girl is 7 consistent and accordingly held that the prosecution has proved its case beyond all reasonable doubt that the appellant who was an old man of sixty years had committed rape on the minor victim girl of seven years and accordingly convicted the appellant under section 376 (2)(f) of IPC and sentenced him as noted above.
Being dissatisfied with the impugned judgment and order of conviction, the instant appeal has been preferred by the convicted accused-appellant.
9. Mr. Sidhartha Swain, learned advocate appearing for the appellant challenging the impugned judgment and order of conviction submitted that the learned trial judge committed glaring mistakes in relying upon the testimony of the victim which is not at all trustworthy and reliable and when the manner in which the alleged rape stated to have taken place is not corroborated by the medical evidence and the appreciation of the evidence of the learned trial Court is totally perverse, the appellant is entitled to be given benefit of doubt and therefore, the appeal may be allowed by setting aside the conviction and sentence and he be acquitted and set at liberty.
Mr. Janmejaya Katikia, the learned Addl. Govt. Advocate appearing for the State submitting conversely argued that the evidence of the victim is truthful, cogent and unblemished and no 8 animus could be brought out by the defence to falsely implicate the appellant. He further contended that the evidence of the victim gets corroboration from the other evidence and in a case of this nature, the evidence of the victim can be acted upon even if the medical evidence is otherwise. Concluding his submissions, learned counsel for the State urged that the impugned judgment is well merited and therefore it be concurred and the appeal being devoid of merits be dismissed.
10. To appreciate the rival submissions raised at the bar, I have bestowed my anxious consideration to weigh and analyse the evidence brought on record for the purpose whether testimony of the victim (P.W.2) deserves acceptance and ultimately the prosecution case deserves acceptance or not.
The victim (P.W.2) has stated in her evidence that on the date of occurrence while she was watching TV in the house of Satyam and came outside to urinate, the appellant pulled her from behind and lifted her to the field near the house of Batua and there the appellant pressed his penis in her vagina twice for which she felt pain and cried loudly. She has further stated the appellant made her lie down on the ground and removed her chadi and then he mounted on her and pressed his penis. She has further stated that her frock and chadi became stained with mud 9 and when she reached her house, her grandmother washed her so also her frock and pant. She has further stated that her vagina turned reddish due to pressing of penis by the appellant and accordingly she informed her parents after they returned. She has further stated that before the occurrence, the appellant had given her Rs.5/-.
Before recording the evidence of P.W.2 who was aged about seven years, the learned trial Judge has conducted preliminary examination of the victim to test her mental capacity and accordingly put some questions. The questions put and the answers given by the victim have been mentioned in detail in the evidence of the victim. The learned trial Judge found after preliminary examination that the victim was quite mature and giving rational answers. I have also gone through the questions put by the learned trial Judge to the victim and the answers given by the victim and I am satisfied that the observation of the learned trial Judge that the victim was quite mature and she was giving rational answer is correct.
In the cross-examination, questions have been put to the victim to nullify her evidence on the ground that she was a tutored witness but the victim has categorically stated that nobody had taught her anything to depose in the case. She has 10 further stated that neither her parents nor anybody else had given her any threat for deposing against the appellant. She has further stated in the cross-examination that nobody was present when the appellant lifted her while she was passing urine and she resisted by saying "Chhad, Chhad". She has further stated that the appellant pushed his penis on her vagina which turned reddish. She has denied the suggestion of the learned counsel for the defence that being instigated by her mother, she was deposing against the appellant.
The evidence of the victim gets corroboration from the evidence of P.W.5 Dilip Behera who has stated that hearing the cry of a child in the backyard of his house, he immediately rushed to his bari and found the victim lying on the ground and the appellant was sleeping over her. He further stated that when he shouted, the appellant tried to escape leaving the victim. He has further stated that he and the people from the locality who arrived at the spot rescued the victim and left her in the custody of her grandmother (P.W.3) and the place where the victim was lying was full of the mud as a result of which the clothing of the victim were completely soiled.
The grandmother of the victim namely, Kamala Naik (P.W.3) has stated that some people brought the victim to her house and 11 handed over to her and she found the clothes of the victim were soiled with mud and she was crying and she ascertained from the victim that the appellant lifted her to the field where he threw her on the ground and slept on her.
It is the prosecution that the victim had been to the house of Satyam for watching TV on the date of occurrence. P.W.10 B.Erama Das who is the wife of B. Satyam has stated that the victim had been to her house to watch television on the date of occurrence and she was found absent at 10.30 a.m. On analysis of the evidence of the victim as well as other surrounding circumstances available on record, it appears that on the date of occurrence the victim had been to the house of P.W.10 to watch television and at about 10.30 a.m. when she came outside to pass urine, the appellant lifted her for which she resisted but the appellant did not spare her and made her lie down on the ground and removed her chadi and slept on her.
11. Section 376(2)(f) Indian Penal Code prescribes punishment for commission of rape on a woman when she is under twelve years of age.
In this case the victim has stated her age to be seven years which is also the evidence of her mother. The ossification test report (Ext.7/2) indicates that the age of the victim is more than 12 six years but less than nine years. The defence has not challenged the age of the victim. The learned counsel for the appellant also did not challenge the age of the victim. Thus one of the ingredients of the offence under section 376(2)(f) Indian Penal Code that the victim should be under the age of twelve years is proved beyond all reasonable doubt.
Coming to the question of rape which is defined under section 375 IPC, it is stated in the explanation portion that the penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Law is well settled that in order to constitute the offence of rape, it is not at all necessary that there should be complete penetration with the male organ in the labia majora or the vulva or pudenda with or without any emission of semen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape. Even an attempt of penetration into the private parts of the victim would be quite enough for the purpose of Section 375 and 376 IPC. It is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. The depth of penetration is immaterial in an offence punishable under section 376 IPC. 13 However, ejaculation without penetration is not rape but may be an attempt to rape.
Coming to the evidence regarding rape, the victim has stated that the appellant pressed his penis twice against her vagina and due to the push of the penis, her vagina turned reddish. Before her mother (P.W.1), the victim has stated that the appellant touched his penis twice in her vagina but she has not stated before her mother that the appellant pressed his penis against her vagina. P.W.1 has not stated to have noticed any reddishness in the vagina of the victim. Before her grandmother (P.W.3), the victim has stated that the appellant lifted her to the field where he threw her on the ground and slept on her. P.W.4 Rama Naik who is the father of the victim has stated that the victim told him that the appellant raped her but in the cross- examination he has stated that the victim did not narrate anything to him. P.W.5 Dilip Behera has not stated that when he found the victim was lying on the ground and the appellant was sleeping over her, the victim was not wearing her chadi.
The victim was examined by the doctor (P.W.8) on 4.9.2006 at Capital Hospital and the doctor has stated that during examination, the external genital area appeared to be normal and there was no injury, no stain, no bleeding and the hymen was 14 intact. The vaginal swab was examined but no spermatozoa were found. No sign and symptom of sexual intercourse was also found on the victim. The doctor has specifically stated that there would be swelling on the vagina in case of forcible pressure by the male organ on the vagina. The appellant who was also examined on 4.9.2006 at Capital Hospital by the doctor (P.W.7) was found to be capable of committing sexual intercourse as per the medical examination report (Ext.4).
Assessing the evidence of the victim vis-à-vis the disclosure made by her before her family members, it is found that the statement of the victim that the appellant pressed his penis against her vagina is contradictory to what she had disclosed before her mother, grandmother and father. Before her mother, she has stated that the appellant touched his penis in her vagina. Before her grandmother, she has stated that the appellant threw her on the ground and slept on her whereas before her father, she has stated that the appellant had raped her. In view of such discrepant evidence coupled with the evidence of the doctor, there appears to be reasonable doubt as to whether there is any kind of partial or slightest penetration of the mail organ of the appellant in the labia majora or the vulva or pudenda of the victim. There is even absence of cogent evidence that there was any attempt of 15 penetration into the private parts of the victim. The statement of the victim that the appellant pressed his penis against her vagina for which it turned reddish is not corroborated by the evidence of her mother who is the best witness to state about the disclosure made by the victim. The evidence of the victim is also not corroborated by the medical evidence as given by the doctor (P.W.8). The I.O. (P.W.14) has stated that she has not noticed any swelling or reddish appearance or presence of bleeding in the private parts of the victim.
The learned trial Court has not given due weight either to the medical evidence or to the surrounding circumstances which puts a question mark regarding commission of rape on the victim. However, in view of the materials available on record, I am of the view that the prosecution has successfully established that there has been an attempt to commit an offence of rape by the appellant on the victim and accordingly a case under section 376(2)(f)/511 IPC against the appellant is proved beyond all reasonable doubt.
12. In the result, the order of conviction of the appellant under section 376(2)(f) IPC and sentence of rigorous imprisonment for a term of ten years and to pay a fine of Rs.2,000/-, in default to undergo R.I. for a further period of three months is hereby set 16 aside and instead the appellant is convicted under section 376(2)(f)/511 IPC and taking into account the age of the appellant who is now aged about 70 years, he is sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.1000/-, in default to undergo R.I. for a further period of two months. It appears that the appellant was arrested on 4.9.2006 and he was forwarded to Court on 5.9.2006 and since then he is in jail custody. He faced the trial as UTP and during pendency of the appeal before this Court, he was not granted bail and thus he has already undergone the sentence imposed under section 376 (2)(f)/511 IPC and accordingly the appellant be set at liberty forthwith if his detention is not required in any other case.
The Jail Criminal Appeal is allowed in part.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 24th April, 2015/Sisir