Orissa High Court
Mihir Alias Bhikari Charan Sahu vs State on 29 July, 1991
Equivalent citations: 1992CRILJ488, 1991(II)OLR403
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner assails his conviction Under Section 377 of the Indian Penal Code, 1860 (in short 'IPC ) and sentence of three years' rigorous imprisonment as awarded by the learned Sub-divisional Judicial Magistrate, Anandapur (in short 'SDJM') and affirmed in appeal by the learned Sessions Judge, Keonjhar.
2. The accusations leading to the trial of the petitioner are that on 6-7-1985 at village Belsundari under Ramachandrapur Police Station, the victim girl, a minor, had been to the tailoring shop of the accused-petitioner during mid-day to get some stitched garments. Taking advantage of absence of others, the accused took the victim girl to a nearby room which was partitioned by a cloth screen, and committed an unnatural offence. The victim girl cried out of pain and when she left the place the accused persuaded her not to disclose the fact. She came to her house and since her father was absent, reported the matter to her mother and when her father came back first-information-report (Ext 1) was lodged at Ramachandrapur Police Station on the next day. Police took up investigation, made seizure of clothes of the victim and the accused and sent them for medical examination. Their garments seized were sent to the Forensic Laboratory at Rasulgarh. After completion of investigation, charge-sheet was submitted.
3. The plea of the accused-petitioner was one of complete denial.
4. The victim girl was examined as PW 2, her father, the informant as PW 1, the doctor as PW 5 and the Investigating Officer as PW 4. On evaluation of evidence and the materials placed for consideration, the learned SDJM found the petitioner guilty, convicted him Under Section 377, IPC and sentenced as aforesaid. In appeal, the conviction and sentence were affirmed.
5. Main plank of the petitioner's argument is that PW 5, the doctor has categorically stated that there was no sign of recent carnal intercourse, injury on anus or on any part of the body of the victim girl. From this it is submitted that the only conclusion inferable is that there was no act as alleged. Strong reliance is placed on the views of two authors (Or. R. M. Jhala and V. B. Raju's Medical Jurisprudence, Fifth Edition ), where the learned authors have held as follows :
"...At this stage one important point may be noted. Bearing in mind the disproportion in size of the organ and tightness of the Sphincter, laceration or injury to the anal orifice is invariable. This would specially occur with the first few acts........."
It is submitted that the Courts below were wrong in concluding that because the medical examination was taken up after thirty hours, the possibility of existence of injuries or sign thereof was wiped our. It is also submitted that the evidence on record shows the improbability of the occurrence as alleged and therefore, the conviction and sentence are to be set aside. It may be noted that at the time of admission of the revision application, notice was directed to be issued to the petitioner to show cause as to why the sentence should not be enhanced. It is submitted in the alternative that even if the guilt of the accused-petitioner is held to be established, there is no scope for any enhancement, and on the contrary considering the young age of the petitioner and his broken family life, a liberal view should be taken so far as the sentence is concerned.
The learned counsel for the State, however, submits that the offence involves one of the most heinous crimes, and is an assault on dignity of victim girl It is submitted that the offence has been clearly established and there is scope for enhancement of the sentence,
6. Unnatural carnal intercourse is abhorred by civilized society, which is reckoned as a crime, and therefore, is punishable with strict sentence. Unlike in an offence of rape Under Section 376, consent of the victim is immaterial. The proof of an offence Under Section 377 is to be gathered from the following aspects ; i.e., (i) the accused had carnal intercourse with any man, woman or animal ; (ii) such intercourse was against the order of Nature ;(iii) the act of the accused was done voluntarily; and (iv) there was penetration The offence implies sexual perversity. In Ejaz Ahmad's "Sexual Offences", it is observed that unless an examination is made of the victim soon after perpetuation of the crime, the signs of it in the passive agent will disappear. According to Modi, (Modi's Medical Jurisprudence and Toxicology), if the passive agent is not accustomed to sodomy, abrasions on the skin near the anus with pain in walking and in defecation, as well as during examination are likely to appear. These injuries are extensive and well-defined in cases where there is great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence lesions will be most marked in children, while they may be almost absent in adults, when there is no resistence to the anal coitus, These injuries, if slight, heal very rapidly in two or three days. According to 'Galster's Medical Jurisprudence and Toxicology, the following lesions may be noticed in a passive agent, i.e., recent lacerations, bruising, or inflammation of the anal mucous membrane.
7. The question is whether the medical evidence is contradictory to the oral evidence, and in such a case what would be the acceptability of each and whether conviction can be maintained on the evidence of the victim girl. As observed by Modi, lacerations are likely to disappear if the examination is made after two to three days. The nature of the injuries is also dependent on several factors, and the signs may not be perceptible in cases where the active agent has introduced his penis slowly and carefully without using force into the anus of the victim. The situation may be different if there is a struggle by the victim. In the instant case, injuries may not be perceptible, because of manner of carnal intercourse. Admittedly the examination was taken up after thirty hours. It is urged by the learned counsel for the petitioner that no question was put to the doctor to show that because of examination after thirty hours, the injuries were non-existent. True it is, it would have been proper to ask such a question. But if the Courts draw an inference from a fact which is undisputed, no adverse inference can be drawn. The evidence of the victim girl as described by her is satisfactory even in its minutest details, and nothing has been shown to me that she had falsely implicated the accused at the cost of her own dignity. Where the eye-witnesses' account is credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eyes and ears of justice, said Bantham. Eye-witnesses' account should not be adversely evaluated and other evidence including medical evidence should not outweigh the former in the scales of credibility. Similar observations were made by the apex Court in State of U P. v. Krishna Gopal end another : AIR 1988 SC 2154. The victim is a young girl and had no axe to grind against the accused. The alleged act definitely casts stigma on her. The society does not close its eyes to the helplessness of a victim, more so if it is a girl. Tongues wag, motives are attributed, and ultimately the victim girl instead of getting sympathies has become the object of mock and ridicule. In that background, the evidence of the victim girl is accepted, being without any noticeable discrepancy and on her evidence conviction can be maintained. There is no rule which mandates any corroboration because corroboration would be impossible in such cases. The conviction is, therefore, maintained.
8. The residual question is the adequacy of sentence. According to the learned counsel for the petitioner, the petitioner has suffered enough humiliation in the public eye and has: become a social outcast, a pariah and even if he is found guilty, a liberal sentence should be awarded. The learned counsel for the State on the other hand submits that considering the gravity of the offence and the fact that notice was issued to the petitioner for enhancement of sentence there is no reason to take a liberal attitude in this case.
9. I have considered the pros and cons of the case so far as the sentence is concerned. Undisputedly the evidence on record shows that the petitioner has a broken family life and belongs to the lower strata of the society The offence definitely is one relating to preversity and deprivation of mind. As observed by the Supreme Court in AIR 1983 SC 323; Fazal Rab Chaudhary v. State, while determining the quantum of sentence, all aspects of the matter must be kept in view. In that case the sentence was reduced to six months' rigorous imprisonment. That was a case of two male persons involved. Here a tender-aged girl is concerned. In my view, a sentence of two years' rigorous Imprisonment would meet the ends of justice. The conviction is maintained, but to the extent of sentence the revision is allowed in part. The notice of enhancement of sentence discharged.
The criminal revision is accordingly disposed of.