Orissa High Court
Sunil @ Jai Singh Rautia vs State Of Orissa on 6 April, 2015
Author: S.K.Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 86 OF 2006
From the judgment and order dated 30.06.2006 passed by the
Adhoc Addl. Sessions Judge, Fast Track Court, Rourkela in S.T.
Case No. 51/12 of 2006.
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Sunil @ Jai Singh Rautia ................ Appellant
-Versus-
State of Orissa ................. Respondent
For Appellant: - Mr. Divya Jeevan Mishra
For Respondent: - Mr. A. K. Mishra,
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-30.03.2015 Date of Judgment-06.04.2015
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S.K.SAHOO, J.
It is said, "Trust takes years to build, seconds to break and forever to repair."
Here is a case of a girl child who was left by her mother in the company of a neighbour on trust for watching a festival but betraying the trust, the minor girl was ravished by the neighbour 2 in an isolated place on the way to the festival site. The thing that is worse than death is betrayal.
The appellant faced trial in the Court of Adhoc Addl. Sessions Judge, Fast Track Court, Rourkela in S.T. Case No.51/12 of 2006 for offence punishable under Section 376 (2) (f) Indian Penal Code for committing rape on a minor girl aged about 7 years namely, Miss 'K' (hereafter for short 'the victim') on 14.01.2006 in between 11.00 a.m. to 12.30 p.m. The appellant was found guilty by the learned trial Court vide impugned judgment and order dated 30.6.2006 under Section 376 (2) (f) Indian Penal Code and accordingly convicted of such offence and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.30,000/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of one year more.
2. The prosecution case as per the First Information Report lodged by one Lalu Kerketta (P.W.1) on 20.1.2006 before Inspector-in-charge, Mahila Police Station, Rourkela is that the informant along with his family members were residing near Jalda in Block 'C'. The informant had three daughters and two sons who were also staying with him. On 14.1.2006 during the morning hours, P.W.1 had been to his duty and at about 11.00 a.m., the 3 appellant who was his neighbour came to his house and took away the victim who is one of the daughters of the informant as well as one of his sons Ramesh who was aged about three and half years in a cycle to watch Makar Festival. In between 12.00 to 12.30 p.m., the children returned back home. On 17.1.2006 the victim stated before her mother regarding feeling pain at the time of passing urine. When the mother of the victim asked her as to why she was limping since last two days, the victim disclosed that on the day when she had been to watch Makar Festival along with the appellant and her brother Ramesh, she was taken near a canal where Ramesh was asked to sit and the appellant took her towards the canal and after opening her pant, she was raped by the appellant. The informant returned from his duties and his wife narrated about the incident at about 10.30 p.m. in the night. The victim got up in the morning and the informant also asked her about the incident. The victim confirmed that she had been raped by the appellant. The informant called his brother-in-law who was staying at Biramitrapur but as he did not come, the informant himself went there to Biramitrapur and narrated everything before his brother-in-law and thereafter the report was lodged at the Police Station.
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The oral report which was given by the informant was reduced to writing and ultimately Rourkela Mahila P.S. Case No. 5 of 2006 was registered on 20.1.2006 under Section 376 (2) (f) Indian Penal Code against the appellant.
P.W.13 Nalita Modi who was the Sub-Inspector of Police, Mahila Police Station took up investigation of the case. She examined the victim, the informant and other persons and recorded their statements, seized the wearing apparels of the victim under seizure list Ext.2. She visited the spot and prepared the spot map Ext.7. The victim was sent for medical examination to Rourkela Government Hospital. The Investigating Officer searched for the appellant and apprehended him on 20.1.2006. The appellant was also sent for medical examination and his wearing apparels were seized under seizure list Ext.6. The I.O. received the medical examination report of the victim. The Station Diary of Jalda Police Outpost was seized. The I.O. received the medical examination report of the appellant. The biological samples of the victim as well as the appellant which were collected by the Medical Officer were also seized under seizure list Ext.5. The seized materials were sent for chemical examination to R.F.S.L., Sambalpur through learned S.D.J.M., Panposh and after completion of investigation, charge-sheet was submitted. 5
3. The defence plea is one of denial.
4. In order to prove its case, the prosecution examined thirteen witnesses.
P.W.1 Lalu Kerketta is the informant in the case and he is the father of the victim. He stated about the occurrence what he had heard from his wife and the victim.
P.W.2 Etwa Nag is the brother-in-law of P.W.1 who heard about the incident from P.W.1 and suggested him to lodge the report before Police. He is also a witness to the seizure of the wearing apparels of the victim under seizure list Ext.2.
P.W.3 Vinsari Kerketta is the mother of the victim who stated about the victim being taken by the appellant for watching Makar Festival and also about the victim narrating the incident before her. She also informed her husband P.W.1 about the incident.
P.W.4 Suresh Chandra Patel who was the ASI of Police attached to Jalda Police Outpost stated to have made a Station Diary Entry after receipt of information from P.W.1 regarding rape on the victim.
P.W.5 Santosh Kumar Swain was the Police Constable who stated about the seizure of Station Diary of Jalda Police Outpost under seizure list Ext.3.
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P.W.6 Dr. Sudharani Pradhan examined the victim on police requisition and proved her report Ext.4.
P.W.7 is the victim of rape who stated about the occurrence.
P.W.8 Alis Lugun stated about the appellant taking the victim to watch Makar Festival on a bicycle.
P.W.9 Smt. Jema Bhagat was the neighbour of the appellant who stated to have heard from the mother of the victim about the appellant taking the victim and her brother to watch Makar Festival on his bicycle.
P.W.10 Smt. Draupadi Singh stated to have heard about the incident.
P.W.11 Janhabi Seth was the Police Constable attached to Mahila Police Station, Rourkela who stated about the seizure of vaginal swab and pubic hair in a glass vial by the Investigating Officer under seizure list Ext.5.
P.W.12 Biswambar Sara was the constable attached to Mahila Police Station, Rourkela who stated about the seizure of wearing apparels of the appellant under seizure list Ext.6.
P.W.13 Nalita Modi is the Investigating Officer. The prosecution exhibited 12 documents. Ext.1 is the written report, Exts.2, 3, 5 and 6 are the seizure lists, Ext.4 is the 7 medical examination report, Ext.7 is the spot map, Ext.8 is the requisition of P.W.13 for medical examination of I.O., Ext.9 is the zimanama, Ext.10 is the prayer of P.W.13 for dispatch of the seized materials for chemical examination, Ext.11 is the forwarding report to R.F.S.L. Sambalpur and Ext.12 is the true copy of the Station Diary Entry.
No witness was examined on behalf of the witness.
5. The learned trial Court relying upon the statement of the victim, medical evidence and other corroborative evidence found the appellant guilty under Section 376 (2) (f) Indian Penal Code.
The learned counsel for the appellant Mr. Divya Jeevan Mishra submitted that there was inordinate delay in lodging the FIR and the possibility of tutoring of the victim is not ruled out. He further submitted that at the first instance, when the victim was examined by the learned trial Court, she was found not competent to depose and accordingly the learned trial Court did not record her statement and thereafter she should not have been recalled at the instance of the prosecution for re-examination. He further contended that the chemical examination report having not been produced, serious prejudice has been caused to the appellant.
The learned counsel for the State Mr. A. K. Mishra submitted that in a case of this nature, the delay in lodging the FIR cannot 8 be given much importance particularly when the family members of the victim become very apprehensive about the future of the victim as well as the prestige of the family and it is only after a long deliberation, they decide to lodge a report. The learned counsel further contended that the evidence of the victim is not only corroborated by the evidence of her family members but also from the medical evidence and therefore the learned trial Court was quite justified in acting upon such evidence to convict the appellant.
6. In the present case, the incident took place on 14.1.2006 in between 11.00 a.m. to 12.30 p.m. and the FIR was lodged on 20.1.2006. In the first information report, an explanation has been given that it is only on 17.1.2006 that the mother of the victim first came to know about the incident from the victim and on the very day she told the informant about the incident after the informant returned from his duties in the night. On the next day, the informant got confirmed about the incident from the victim and then he consulted his brother-in-law and then the FIR was lodged.
In the evidence, P.W.1 has stated that on 18.1.2006 he sent information to his brother-in-law to come to his house and when he did not come, he went to his house on 20.1.2006. P.W.2 9 who is the brother-in-law of the victim also corroborated the evidence of P.W.1 that after hearing about the incident from P.W.1, he suggested him to report the matter before Police. P.W.3 who is the mother of the victim has also corroborated the evidence of P.W.1 and she stated that she came to know about the incident from the victim and thereafter informed her husband P.W.1. Thus the evidence on record indicates that the offence was detected after three days of the occurrence when the victim for the first time disclosed about the same before her mother and then some time was taken for deliberation as to whether to lodge the FIR at all and ultimately P.W.1 lodged the FIR. In such a situation, it cannot be said that the prosecution has failed to offer any explanation regarding delay in lodging the FIR.
In a case of child rape, the reputation and the prestige of the family and the career and life of a young child is involved. Ordinarily the family of the victim would not intend to get a stigma attached to the victim. It is not at all unnatural on the part of the family members to have a deliberation among themselves to decide whether to lodge the FIR or not. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon.
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7. Coming to the evidence of the victim, I find that at the first instance when she was examined on 11.05.2006, the learned trial Court after preliminary examination found her to be not competent to depose. The reasoning assigned by the learned trial Court was that she was unable to answer the questions put to her rationally and was unable to say about the distinction between truth and falsehood and when she was asked about the incident by the learned trial Court, she remained silent and did not answer.
It appears that on 20.6.2006 a petition was filed on behalf of the prosecution under Section 311 Cr.P.C. to recall the victim girl P.W.7 for re-examination as she could not give her evidence properly being frightened as her examination was conducted in open Court. The learned trial Court allowed the prayer of the prosecution and recalled P.W.7.
On 23.06.2006 the statement of the victim was recorded in camera and before recording her evidence, the learned trial Court again put some formal questions which she answered satisfactorily. The learned trial Court put a pertinent question as to whether on the previous occasion she did not tell anything in the Court out of fear, the victim replied in affirmative by nodding her head. After such examination, the learned trial Court was of 11 the view that the victim was competent to depose in the Court. The recall order dated 20.06.2006 passed by the learned trial Court was not challenged by the defence and in pursuance to such unchallenged order when the Court re-examined the victim invoking its power under Section 311 Cr.P.C. and on re- examination found the victim to be competent to testify as she was understanding the questions put to her and giving rational answer to those questions, it cannot be said that any illegality has been committed by the learned trial Court in re-examining the victim.
The approach of the learned trial Court to record the statement of the minor girl who is a victim of rape in open Court at the first instance was certainly unwarranted and illegal. That was perhaps the reason why the victim got frightened and did not answer anything. When on the second instance, the statement was recorded in camera; she narrated the incident in detail.
In State of Punjab v. Gurmit Singh reported in AIR 1996 SC 1393, the Hon'ble Supreme Court highlighted the importance of provisions of section 327 (2) and (3) Cr.P.C. and a direction was issued not to ignore the mandate of the aforesaid provisions and to hold the trial of rape cases in camera. It was also pointed out that such a trial in camera would enable the 12 victim of crime to be a little comfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would not be so hesitant or bashful to depose frankly as she may be in an open Court, under the gaze of the public.
In case of Sakshi -V- Union of India reported in AIR 2004 SC 3566, it is held as follows:-
"34. The writ petition is accordingly disposed of with the following directions.
(1) The provisions of sub-section (2) of section 327 Cr.P.C. shall, in addition to the offences mentioned in the sub-section, would also apply in inquiry or trial of offences under Sections 354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;13
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
These directions are in addition to those given in State of Punjab -v- Gurmit Singh."
In view of the settled position of law, when the learned trial Court did not record the statement of the victim in camera at the first instance and when the mistake committed by him was brought to his notice by the prosecutor by filing a petition under section 311 Cr.P.C., he allowed such petition and re-examined the victim in camera. The contention of the learned counsel for the appellant that the victim of rape should not have been recalled at the instance of the prosecution for re-examination when she was declared incompetent to testify at the first instance is not acceptable.
The evidence of a child witness can be considered in view of the provisions under Section 118 of Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The Court has to take precaution while assessing the evidence of a child witness that he/she is a reliable witness and 14 his/her demeanour reveals like any other competent witness and there was no likelihood of being tutored.
The victim on her re-examination has stated that the appellant took her and her brother Ramesh to see Makar Festival in a cycle and on the way the appellant raped her. The learned trial Court put a pertinent question to the victim as to what did she mean by "rape"? The victim replied that the appellant penetrated his private part in her private part and showed her private part where the penetration took place. She further stated that the appellant removed his pant and then removed her pant and then inserted his private part inside her private part. The learned trial Court put a question to the victim whether she felt any pain at that time; the victim replied that she cried.
The learned counsel for the appellant challenged the evidence of the victim that she had been tutored to depose against the appellant. I am not able to accept the contention inasmuch as there was no earthly reason on the part of her family members to falsely implicate the appellant in a case of rape of their minor daughter. The victim stated that she heard the word 'rape' from her mother and her mother told her to depose in the Court. From this line of statement of the victim, it is very difficult to come to a conclusion that she was tutored by her family 15 members to depose against the appellant. To a question put by the Court, she has stated that her mother told her to depose truth. She has denied to the suggestion of the defence that the appellant had not committed sexual intercourse and that there was no such occurrence and that being tutored by her mother and police, she was deposing falsely. The learned trial Court marked her demeanour wherein it is mentioned that the victim repeatedly told in the Court that the appellant raped her.
P.W.6 is the doctor who examined the victim on 20.1.2006 at Rourkela Government Hospital on police requisition. She found redness over the inner part of labia minora on both side and the hymen was admitting 3/4 finger. She further stated that the possibility of sexual intercourse within seven days cannot be ruled out. She further stated that as there was congestion redness in the inner part of labia minora, she was of the conclusion that there was sexual intercourse with the victim within seven days. The doctor denied the suggestion of the defence that congestion redness was possible either by infection or by nail mark. She has further stated that the injury found on the private part of the victim girl was possible due to slight penetration. The medical examination report of the victim has been marked as Ext.4. 16
The statement of the victim is also corroborated by P.W.1 as well as P.W.3 who are the parents of the victim. No infirmity is found either in the evidence of the victim or in the medical evidence. Nothing has been elicited in the cross-examination to discredit the version of any of these witnesses.
The evidence of a child witness cannot be discarded merely because it is not corroborated by other evidence though as a matter of prudence the Court requires such corroboration. Where the statement of the child witness inspires confidence of the Court and there is no embellishment or improvement in her statement, the evidence of the child witness even though uncorroborated can be acted upon.
In case of State of Punjab -v- Gurmit Singh reported in AIR 1996 SC 1393, the Hon'ble Supreme Court has given guidance to the Courts how to appreciate the evidence of prosecutrix in cases of rape.
"20........We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The Court, 17 therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with case involving sexual molestations."
In the instant case, I found that the evidence of the victim P.W.7 is not only reliable and truthful but it is corroborated by other evidence and therefore I am of the view that the learned trial Court was justified in acting upon the evidence led by the prosecution to convict the appellant.
8. No doubt the wearing apparels of the appellant as well as the victim and sealed packet containing semen and pubic hair of 18 the appellant as well as virginal swab of the victim were sent for chemical examination on 15.2.2006 to the Deputy Director, R.F.S.L., Ainthapali, Sambalpur through the learned S.D.J.M., Panposh, Rourkela but the chemical examination report was not furnished by the Deputy Director till the conclusion of the trial. It appears from the order sheet of the learned trial Court that neither the prosecution took any step to obtain the chemical examination report nor the learned trial Court suo motu called for such a report even though there were materials available on record that seized articles had been dispatched for chemical examination which was an important piece of uneschewable evidence.
It is the duty of the Magistrate to supply the chemical examination report to the accused along with police papers at the time of commitment of the case to the Court of Sessions in view of section 207 Cr.P.C. and Rule 50 of the G.R.C.O. (Criminal) of High Court of Judicature, Orissa if the same is available on record. If the same is not available on record and not supplied to the accused before commitment, it is the duty of the prosecutor as well as the trial Court to see that the chemical examination report is made available even before the charges are framed and copy of such report is furnished to the accused. The trial Court has also a 19 duty and responsibility to send reminder to the Director/Dy. Director of the Forensic Science Laboratory to send the chemical examination report and in spite of such reminder, if no report is furnished, the Court should take concrete steps against the erring officials for non-production of such report in the interest of justice. The Director/Deputy Director of the Forensic Science Laboratories should send the chemical examination report to the concerned Court within a reasonable period preferably in two months of the receipt of seized exhibits for analysis. Forensic Science plays a vital role in criminal justice delivery system providing the investigators with scientific based information through analysis of physical evidence. Unfortunately the police and the prosecutors often fail to obtain results from laboratories quickly enough to determine the accusations against a person. Instances are not unknown where the doctors conducting post mortem reserve their final opinion regarding cause of death of the deceased awaiting viscera report. In such situations, non-receipt of the report or delayed receipt of report creates obstacles in arriving at truth and hamper the course of justice. Nobody has a right to play with the lives of the persons who are facing trial for a serious charge and also to deprive the victims from getting proper justice. The reports of the Government scientific experts can be 20 used as evidence in view of the provisions under section 294 Cr.P.C. Non-availability of a chemical examination report before the trial Court can have a far reaching consequence in a criminal trial and can cause serious judgmental errors. It is submitted by the learned counsel for the State that due to shortage of Scientific Officers/ Analysts in the Forensic Science Laboratories and huge number of pendency of cases for analysis, there use to be delay in giving the chemical examination report. It is the duty of the State Government to provide sufficient staff and competent officers for examination of the seized exhibits in the Forensic Science Laboratories for speedy and effective analysis and to furnish accurate forensic reports for the proper dispensation of justice delivery system.
In this case even though non-availability of chemical examination report was not raised during trial and it was raised for the first time before this Court in appeal but since in the meantime more than nine years have already passed since the date of dispatch of the articles for chemical examination, I do not think it proper to call for such report from the concerned Forensic Science Laboratory.
9. Even in absence of chemical examination report, I find that the statement of the victim is reliable and truthful and the same is 21 corroborated by the evidence of her parents as well as by the medical evidence and accordingly I am of the view that the prosecution has successfully established the case against the appellant beyond all reasonable doubt and there is no infirmity in the impugned judgment and order of conviction passed by the learned trial Court. The learned trial Court has imposed the minimum sentence prescribed for such heinous offence. The measure of punishment in a case of rape depends upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. The learned trial Court considered all the relevant facts and circumstance bearing on the question of sentence and proceeded to impose the minimum sentence commensurate with the gravity of the offence. Though the section provided for imposition of lesser sentence than ten years for any adequate and special reasons but the learned trial Court found no extenuating or mitigating circumstances available on the record to justify imposition of any sentence less than the prescribed minimum to the appellant. To show mercy in a case of a heinous crime like this would be travesty of justice and the plea for leniency would be wholly misplaced.
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In the result, the impugned judgment and order of conviction of the appellant for offence under Section 376 (2) (f) Indian Penal Code and the sentence of R.I. for a period of ten years and payment of fine of Rs.30,000/-, in default of payment of fine to undergo further R.I. for a period of one year more as was imposed by the learned trial Court is hereby confirmed.
Accordingly, the appeal stands dismissed.
Let a copy of the judgment be sent to the learned Registrar General of this Court for onward communication to all the learned District and Sessions Judges for their information and necessary action at their end with reference to the observations made in paragraph 8 above who in turn are expected to communicate to all the trial Courts under their respective jurisdiction about the same. A copy of the judgment be also sent to the Chief Secretary of State of Odisha for taking immediate remedial steps for appointing sufficient staff and competent analysts in the Forensic Science Laboratories for speedy and effective examination of seized exhibits and furnishing accurate forensic reports within a reasonable period of time to facilitate dispensation of justice.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 6th April,2015/Sisir