Orissa High Court
Ramesh Chandra Sahoo 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. 329 Of 2007
From the judgment and order dated 31.05.2007 passed by the
Addl. Sessions Judge (F.T.C.), Athagarh in Sessions Trial No. 435
of 2006.
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Ramesh Chandra Sahoo ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mrs. Soudamini Mahakuda
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 Ramesh Chandra Sahoo faced trial in the Court of learned Addl. Sessions Judge (F.T.C.), Athagarh in Sessions Trial No. 435 of 2006 for offences punishable under sections 366/376 of the Indian Penal Code on the accusation that on 16.01.2006 he kidnapped the victim with an intent that she would be compelled to marry against her will and also committed rape on her.
2The learned trial Court found the appellant guilty under sections 363/376 of the Indian Penal Code and sentenced him to undergo R.I. for a period of 3 years and to pay a fine of Rs.500/-, in default, to undergo further R.I. for a period of one month under section 363 of the Indian Penal Code and R.I. for a period of 7 years and to pay a fine of Rs.500/-, in default, to undergo further R.I. for a period of one month under section 376 of the Indian Penal Code and both the substantive sentences were directed to run concurrently.
2. The prosecution case, in short, is that the appellant is the paternal uncle of the victim being the younger brother of the father of the victim. On 16.01.2016 in the early morning while the victim had been to the backyard of her house to bring water, the appellant came there and induced the victim to visit the house of her aunt situated at Angul. When the victim told the appellant that without the consent of her parents, she could not accompany him, the appellant told the victim that her parents would never agree and accordingly, the victim accompanied the appellant and they went first to Dhenkanal where they stayed in the house of a friend of the appellant for four to five days. Then the appellant took the victim to the house of the sister of his friend and kept there for three to four days and then they stayed 3 in a rented house in another place and while they were staying in the rented house, the appellant cohabited with the victim twice.
The first information report was lodged by Dayanidhi Sahoo who is the father of the victim before the officer in charge of Narasinghpur police station on 17.01.2006 and basing on such F.I.R., Narasinghpur P.S. Case No.7 of 2006 was registered under section 366 of the Indian Penal Code by the officer in charge who directed P.W.8 Gobardhan Sahoo, A.S.I. of police to take up investigation of the case.
During course of investigation, P.W.8 examined the informant, visited the spot house, prepared the spot map (Ext.
14), examined other witnesses, seized the School Admission Register of Artatran Nodal U.P. School, Sagar where the victim was prosecuting her studies and handed over such register in the zima of the Headmaster of the school. The officer in charge (P.W.6) took over charge of investigation from P.W.8 and he traced out the victim and the appellant on 11.02.2006. He examined the victim and sent her as well as the appellant for medical examination. He arrested the appellant, seized the wearing apparels of the appellant under seizure list (Ext.8). He seized the sample pubic hair and sample semen of the appellant collected by the doctor. He also seized the saree and saya of the victim under seizure list (Ext.10). The sample pubic hair and 4 vaginal swab of the victim which were collected by the doctor were seized under seizure list (Ext.14). The victim was produced before the learned J.M.F.C., Narasinghpur for recording her statement under section 164 Cr.P.C. and accordingly the same was recorded. The seized exhibits were also sent to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination. The medical examination reports were received and after completion of investigation, charge sheet was submitted against the appellant on 07.06.2006 under sections 366/376 of the Indian Penal Code.
3. After submission of charge sheet, the case was committed to the Court of Session after complying due committal procedure, where the learned trial Court framed the charges as aforesaid against the appellant on 05.01.2007. Since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish his guilty.
4. In order to prove its case, the prosecution examined nine witnesses.
P.W.1 Satyabhama Sahoo is the wife of the appellant and she did not support the prosecution case for which she was declared hostile.
P.W.2 is the victim.
5P.W. 3 Soudamini Sahoo is the mother of the victim and she stated the age of the victim to be 14 years.
P.W.4 Dayanidhi Sahoo is the father of the victim and he stated that the age of the victim to be 13 years at the time of occurrence.
P.W.5 Jalandhar Sahoo was the Headmaster of Artatrana Nodal U.P. School where the victim was prosecuting her studies and he proved the Admission Register of the School which indicated the date of birth of the victim to be 08.03.1991. The Admission Register which was seized was given in zima of the Headmaster under zimanama (Ext.4).
P.W.6 Pramod Kumar Singh was the officer in charge of Narasinghpur police station and P.W. 8 Gobardhan Sahoo was the A.S.I. of police who are the Investigating Officers of the case.
P.W.7 Dr. Nihar Ranjan Mishra examined the victim and proved his report and he estimated the age of the victim to be 14 to 15 years.
P.W.9 Dr. Bibhutibhusan Jena was the Medical officer of the Narasinghpur Hospital who examined the appellant and proved his report (Ext.7).
The prosecution exhibited as many as fourteen documents. Ext.1 is the 164 Cr.P.C. statement, Ext.2 is the 6 written report of P.W.4, Exts.3, 8, 9, 10 and 11 are the seizure lists, Ext.4 is the zimanama, Ext.5 is the admission register, Exts.6 and 7 are the injury requisitions, Ext.12 is the carbon copy of forwarding report, Ext.13 is the chemical examination report and Ext.14 is the spot map.
The prosecution proved four material objects. M.O.I is the saree, M.O.II is the saya, M.O.III is the full pant of accused and M.O.IV is the full shirt of the appellant.
5. The defence plea of the appellant is one of denial and it was pleaded that due to civil dispute, he has been falsely implicated in the case.
6. The learned Trial Court after discussing the evidence on record has been pleased to hold that the appellant cohabited with the victim and the age of the victim was below 16 years at the time of the occurrence.
7. At the time of call of the hearing of the criminal appeal, the counsel for the appellant did not appear to argue the appeal. Since it is reported by the learned Addl. Sessions Judge, Athagarh that the appellant had already served the sentence and released from custody since 30.09.2011 and the appeal is of the year 2007, Mrs. Soudamini Mahakuda was engaged as the counsel for the appellant. She was supplied with the paper book and granted time to prepare the case. After going through the 7 case records, she placed the impugned judgment and the statements of the witnesses and contended that even though the victim was minor at the time of occurrence, she had attended the age of discretion and moved with the appellant from place to place and did not raise any objection and therefore, the ingredients of the offence under section 363 of the Indian Penal Code are not attracted. It is further contended that the medical evidence runs contrary to the ocular evidence of any sexual intercourse with the victim and therefore, the learned trial Court was not justified in convicting the appellant under section 376 of the Indian Penal Code and as such benefit of doubt should be extended in favour of the appellant.
Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand submitted that not only from the ocular evidence and medical evidence but also from the school document which was seized by the Investigating Officer, it was found that the victim was minor as on the date of occurrence. The date of birth of the victim was 08.03.1991 and as such on the date of occurrence i.e. 16.1.2006, she was 15 years. The learned counsel further contended that the appellant was none else but the paternal uncle of the victim for which the victim did not raise any objection and accompanied the appellant on good faith from place to place and she was not aware about the evil 8 design of the appellant. The learned counsel further contended that the evidence of the victim is very clear that in the rented house where she was staying with the appellant, the appellant cohabited with her on two occasions. It is further contended that since there was delay in the medical examination of the victim as well as that of the appellant, non-finding of any injuries and other symptoms of rape cannot falsify the evidence of the victim. It is further contended that the impugned judgment suffers from no illegality and perversity and therefore, the appeal should be dismissed.
8. Coming to the age of the victim which is one of the prime factors to be decided in the case before assessing the other evidence available on record, it appears that the victim who has been examined as P.W.2 stated her age to be 16 years at the time of her deposition on 12th February 2007 and she stated that the occurrence in question took place a year back. The mother of the victim has been examined as P.W.3 and she has stated that at the time of her deposition, the age of the victim was 14 years and the occurrence took place about a year back. The father of the victim was examined as P.W.4 and he stated that at the time of occurrence, the victim was aged 13 years. The doctor (P.W.7) who examined the victim on police requisition has stated that after going through the X-ray plates 9 of the victim in respect of the shoulder joint, elbow joint, wrist joint, hip joint, knee joint, ankle joint, sternoclavicular joint and teeth of the victim, she estimated the age of the victim to be in between 14 to 15 years. The Headmaster of the School where the victim were prosecuting her studies was examined as P.W.5 and the School Admission Register was seized which reflects the date of birth of the victim to be 08.03.1991. Nothing has been brought out by the defence either from the evidence of the victim or from the other witnesses to disbelieve the age of the victim which had been put forth by the prosecution and therefore, the ocular evidence of the victim, her parents, the medical examination report so also the School Admission Register indicates that the age of the victim as on the date of occurrence was below 16 years. The finding of the learned Trial Court on that score suffers from no infirmity or illegality.
9. Coming to the evidence of the victim, she has stated that the appellant was the younger brother of her father and on the date of occurrence while she had been to bring water to the bari, the appellant induced her to visit the house of her aunt Santi and when she informed the appellant that without the consent of the parents, she could not accompany him, the appellant told that her parents would never agree and accordingly, she accompanied the appellant from place to place. 10 She has categorically stated that while staying in a rented house, the appellant cohabited with her twice and then she was rescued by the police and her 164 Cr.P.C. statement was recorded and police seized her wearing apparels. The victim has stated in her cross examination that on the way from Dhenkanal up to the house of the friend of the appellant, she met many people but did not disclose them anything as till that time she did not smell about any foul play of the appellant. The victim has further stated that she had requested the appellant several times to leave her in her house but he was replying that he had brought her to marry and not to leave.
The contention of the learned counsel for the appellant regarding non-raising of the objection of the victim cannot be a factor to discard the evidence of kidnapping particularly in view of the relationship between the appellant and the victim and inducement which has been caused by the appellant. It appears that the victim on good faith accompanied the appellant from place to place and she did not disclose before any person whom she came across on the way as she had not suspected any foul play of the appellant. The evidence of the victim in the chief examination has not at all been shaken in the cross examination.
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The Investigating Officer (P.W.6) has stated that he arrived in the village Banamali Prasad on 11.6.2006 and traced out the victim and the appellant. The parents of the victim who have been examined as P.W.3 and P.W.4 have also stated about the kidnapping of the victim by the appellant. Therefore, the evidence of the victim coupled with her parents so also the rescue of the victim girl from the company of the appellant in a rented house which was deposed to by the Investigating Officer and her age clearly establishes the ingredients of the offence under section 363 of the Indian Penal Code and therefore, the learned trial Court has rightly convicted the appellant under section 363 of the Indian Penal Code.
So far as the offence under section 376 of Indian Penal Code is concerned, the victim has categorically stated that in the rented house, the appellant cohabited with her twice. Even though the medical examination report of the victim which was proved by P.W.7 indicates that there was no bodily injury on her person suggesting forcible sexual intercourse and no sign and symptoms of any recent sexual intercourse was found but it cannot be lost sight of the fact that the victim was medically examined on 12.02.2006 whereas the occurrence in question took place on 16.01.2006 and thereafter.
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Therefore, the non-finding of any bodily injury or sign and symptoms of recent sexual intercourse would not nullify the credible evidence of the victim relating to commission of sexual intercourse by the appellant on her. Since it has already been held that the victim was below the age of 16 years, in view of clause sixthly to section 375 of the Indian Penal Code, her consent, if any, is immaterial and therefore, the learned Trial Court has rightly found the appellant guilty under section 376 of the Indian Penal Code. The sentence which was imposed by the learned trial Court on the appellant for the two offences appears to be quite justified and there is no illegality in the same and therefore, the impugned judgment and order of conviction of the appellant under sections 363/376 of the Indian Penal Code and the sentence passed thereunder stands confirmed.
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 the offence committed and the family background, I feel it necessary to recommend the case of the victim to District Legal Services Authority, Cuttack 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.
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Let a copy of the order be sent to the District Legal Services Authority, Cuttack 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 Mrs. Soudamini Mahakuda, the learned counsel for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to the 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