Orissa High Court
Tikiri Behera vs State Of Odisha on 2 August, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 14-Aug-2023 19:46:34
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.75 OF 2019
An appeal from judgment and order dated 17.08.2019 passed by
the Special Judge (POCSO) -cum- Second Addl. Sessions Judge,
Berhampur, Ganjam in G.R. Case No.11 of 2016.
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Tikiri Behera ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Rajib Lochan Pattnaik
Amicus Curiae
For Respondent: - Mr. Manoranjan Mishra
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: 02.08.2023
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S.K. SAHOO, J. The appellant Tikiri Behera, who is the father of the
victim, faced trial in the Court of learned Special Judge (POCSO)
-cum- Second Addl. Sessions Judge, Berhampur, Ganjam in G.R.
Case No.11 of 2016 for commission of offences punishable under
sections 354/354-A(2)/354-B/354-D/376(2)(f)(i)(k)(n) of the
Indian Penal Code (hereinafter, >I.P.C.?) read with sections 6 and
10 of the Protection of Children from Sexual Offences Act
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Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 14-Aug-2023 19:46:34
(hereinafter, >POCSO Act?) on the accusation that he used
criminal force against the victim intending to outrage her
modesty and on different occasions, committed sexual
harassment by committing physical contact and advancing
unwelcome and explicit sexual overtures to the victim and also
made a demand for sexual favours from her and used criminal
force against her with the intention of disrobing her and in the
process made her naked and attempted to foster personal
interaction repeatedly despite a clear indication of disinterest by
the victim and being the father of the victim and being in a
position of control and dominance over her, the appellant
committed rape repeatedly on her when she was under sixteen
years of age and being in a position of trust and authority, he
committed aggravated penetrative sexual assault on her and
touched the vagina, breasts and different parts of her body with
sexual intent. He was also indicted for commission of criminal
intimidation by threatening the victim with dire consequences
with intent to cause alarm.
The learned trial Court vide impugned judgment and
order dated 17th August 2019 found the appellant guilty of the
offences under sections 354/354A(2)/354B/376(2)(f)(i)(k)(n) of
the I.P.C. as well as sections 6 and 10 of the POCSO Act and
sentenced him to undergo rigorous imprisonment for ten years
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and to pay a fine of Rs.10,000/- (Rupees ten thousand), in
default, to undergo rigorous imprisonment for a further period of
six months for the offence under section 376(2)(f)(i)(k)(n) of the
I.P.C., to undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs.5,000/-(Rupees five thousand), in
default, to undergo rigorous imprisonment for a further period of
three months for the offence under section 10 of the POCSO Act
and sentenced to undergo rigorous imprisonment for a period of
three years and to pay a fine of Rs.2,000/-(rupees two
thousand), in default, to undergo rigorous imprisonment for a
further period of two months for the offence under section 354B
of the I.P.C. However, in view of section 42 of the POCSO Act, no
separate sentence has been awarded for the offences under
sections 354/354A(2) of the I.P.C. and section 6 of the POCSO
Act. All the substantive sentences were directed to run
concurrently. The appellant was acquitted of the charges under
sections 354D/506 of the Indian Penal Code.
The Prosecution Case:
The prosecution case, in short, as per the first
information report lodged by the victim (P.W.3) on 05.02.2016
before the Inspector in-charge of Hinjili police station, is that the
appellant is her father and she is the only daughter of her
parents and she has a younger brother. The appellant was
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unemployed and he used to return home in inebriated state and
assault the family members. It is further stated in the F.I.R. that
on a day in the month of Srabana (in the month of July) in the
year 2015, during the evening hours, while her younger brother
had been to attend tuition and her mother had also gone to
implant paddy seedlings, the victim was preparing the dinner
and at that time the appellant came and embraced her and
touched different parts of her body by his hands. In view of the
relationship, the victim could not say anything to the appellant
but only cried. Then for committing rape, the appellant tried to
undress the victim and touched her breasts and private parts.
When the victim started crying loudly, the appellant left the
house. In that night, the appellant slept near the victim, made
her naked and inserted his finger into her private part (vagina)
for which she cried. Such thing was done repeatedly and the
appellant used to sexually exploit the victim in spite of her
protest and he was not only touching different parts of the body
of the victim, but also inserting his finger into her private parts.
When the situation became unbearable, the victim disclosed the
misdeeds of the appellant before her mother (P.W.2), for which
there was a quarrel between P.W.2 and the appellant. The victim
also disclosed about the occurrence to her cousin brother and his
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Date: 14-Aug-2023 19:46:34
wife. As per the advice given by P.W.2, she lodged the first
information report.
On receipt of such report, the Inspector in-charge of
Hinjili police station registered Hinjili P.S. Case No.20 dated
05.02.2016 under sections 354/354A(1)/354B/354D/376(2)(f)
(i)(k)(n) of the I.P.C. read with section 6 of the POCSO Act.
P.W.8 Prasanta Kumar Sahoo, the then Inspector in-
charge of Hinjili police station himself took up the investigation
of the case and as per his direction, one lady Inspector
Bhagyashree Swain (P.W.4) recorded the statement of the
victim. The wearing apparels of the victim were seized as per
seizure list Ext.5. The I.O. visited the spot, prepared the spot
map vide Ext.9, examined the witnesses and recorded their
statements, apprehended the appellant, seized his wearing
apparels and prepared the seizure list vide Ext.7. The victim so
also the appellant were sent for medical examination to M.K.C.G.
Medical College and Hospital, Berhampur along with the
escorting police officials. Thereafter, he made some formal
seizure and arrested the appellant and forwarded him to the
Court and prayed for recording of the 164 Cr.P.C. statement of
the victim. The seized exhibits were sent to R.F.S.L., Berhampur
for chemical examination. The School Admission Register of the
victim was produced by the Headmaster of the school which was
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seized as per the seizure list vide Ext.13 and the same was given
in the zima of Headmaster after execution of zimanama vide
Ext.14. The School Admission Register revealed the date of birth
of the victim to be 25.03.2002. The I.O. received the medical
examination report of the victim as well as the appellant on
31.05.2016 and thereafter, on completion of investigation, he
submitted the charge sheet against the appellant for commission
of offences punishable under sections 354/354A(1)/354B/354D/
376(2)(f)(i)(k)(n) of the I.P.C. and section 6 of the POCSO Act.
The learned trial Court on 05.08.2016 framed the
charges against the appellant as already stated 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.
The defence plea of the appellant was one of denial.
It was pleaded that due to illicit relationship of P.W.2 (mother of
the victim) with the appellant?s elder brother, a false case has
been foisted upon him.
Witnesses & Exhibits:
During course of trial, in order to prove its case, the
prosecution examined as many as nine witnesses.
P.W.1 Dr. Sudeepa Das was the Associate Professor
in F.M.T. Department of M.K.C.G. Medical College and Hospital,
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Berhmapur who examined the victim on police requisition and
proved her report vide Ext.1
P.W.2 Sanju Behera is the mother of the victim. She
supported the prosecution case and stated that the victim
disclosed before her the misdeeds committed by the appellant on
her by touching her private parts.
P.W.3 is the victim so also the informant in this case.
She supported the prosecution case and stated as to how the
appellant sexually harassed her and committed rape on her.
P.W.4 Bhagyashree Swain was the S.I. of police
attached to Hinjili police station and as per the direction of the
I.I.C., Hinjili police station, she recorded the statement of the
victim under section 161 Cr.P.C. in presence of her mother
(P.W.2).
P.W.5 Ushalata Dash was the constable attached to
Hinjili police station and she is a witness to the seizure of
biological samples of the appellant so also the victim.
P.W.6 Ranjit Kumar Patra was the constable attached
to Hinjili police station and is a witness to the seizure of red
colour check towel and a printed green colour lungi of the
appellant. He is also a witness to the seizure of the wearing
apparels of the victim vide seizure list Ext.5.
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Location: Orissa High Court, Cuttack
Date: 14-Aug-2023 19:46:34
P.W.7 Dr. Bhakta Narayan Munda was working as
Asst. Surgeon in the Department of F.M.T., M.K.C.G. Medical
College and Hospital, Berhampur and on police requisition, he
examined the appellant and proved his report vide Ext.8.
P.W.8 Prasanta Kumar Sahoo is the Investigating
Officer of the case.
P.W.9 Nabin Chandra Pattnaik was the Headmaster
of the school where the victim was prosecuting her studies and
he stated about the seizure of school admission register vide
seizure list Ext.13 and took the same in zima as per zimanama
Ext.14.
The prosecution also proved sixteen documents as
exhibits. Ext.1 is the medical examination report of the victim,
Ext.2 is the F.I.R., Ext.3 is the consent memo for medical
examination of the victim, Ext.4 is the statement of the victim
under section 164 Cr.P.C. before Magistrate, Ext.5 is the seizure
list relating to wearing apparels of the victim, Ext.6 is the seizure
list relating to biological samples of the appellant and the victim,
Ext.7 is the seizure list of the wearing apparels of the appellant,
Ext.8 is the medical opinion report of the appellant proved by the
doctor (P.W.7), Ext.9 is the spot map, Ext.10 is the command
certificate, Ext.11 is the forwarding letter of the learned
S.D.J.M., Berhampur to the Dy. Director, R.F.S.L., Berhampur for
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examination of the exhibits, Ext.12 is the acknowledgment
receipt issued by R.F.S.L., Berhampur, Ext.13 is the original
school admission register, Ext.14 is the zimanama, Ext.15 is the
school admission register and Ext.16 is the transfer certificate.
The appellant neither examined any witness nor
proved any document.
Finding of the learned Trial Court:
The learned trial Court, after analyzing the oral and
documentary evidence on record, came to hold that the victim
was under sixteen years of age at the time of alleged occurrence
and the age of the victim has not been challenged. It was further
held that there was no medical evidence to corroborate the
recent sexual intercourse and there was no bodily injury
suggesting forcible sexual intercourse. but the possibility of past
sexual intercourse could not be ruled out. Learned trial Court
further held that delay in lodging of F.I.R. in a case of rape
cannot be a factor to discard the prosecution evidence,
particularly in view of the relationship between the appellant and
the victim. It was further held that despite resistance by the
victim and protest by her mother, the appellant did not desist
from making sexual assault on the victim and therefore, it can
never be a false implication as claimed by the appellant. There is
intrinsic value in the oral evidence of the victim and her mother
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so far as the allegation of rape and other sexual assault on the
victim are concerned. The learned trial Court further held that
being the father of the victim, since the appellant sexually
assaulted the victim, by virtue of section 9(n) of the POCSO Act,
he was held to have committed >aggravated sexual assault?
punishable under section 10 of the POCSO Act. It was further
held that the version of the victim regarding threat given to her
by the appellant to throttle her neck does not find support from
the F.I.R. story or her statement before police and it creates
doubt whether any such threat had in fact been given by the
appellant and therefore, no offence punishable under section 506
of the I.P.C. is made out against the appellant. The learned trial
Court further held that the victim was proved to be under sixteen
years of age at the time of alleged occurrence and the appellant
being the father of the victim was in a position of control and
dominance over her and as has been proved by the prosecution
that the appellant had committed rape on the victim repeatedly
and therefore, he was held guilty as aforesaid.
Contentions of Parties:
Mr. Rajib Lochan Pattnaik, learned Amicus Curiae
appearing for the appellant placed the relevant parts of the
impugned judgment so also the evidence of the witnesses and
contended that there is inordinate delay in lodging of the first
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information report and the formal F.I.R. itself shows that the
occurrence took place on 01.07.2015 whereas the F.I.R. was
lodged only on 05.02.2016, which is almost seven months after
the date of occurrence. Learned counsel further submitted that in
the 164 Cr.P.C. statement, the victim has not stated about
commission of rape on her and therefore, her evidence in Court
as P.W.3 in that respect is not acceptable. Learned counsel
further submitted that the doctor (P.W.1) examined the victim
on the date of lodging of the F.I.R. and no sign or symptom of
recent penetrative sexual assault was found and there was no
bodily injury on her person or on her private part and in view of
such evidence of the doctor, the commission of rape on her is
not acceptable and it is a fit case where benefit of doubt should
be extended in favour of the appellant.
Mr. Manoranjan Mishra, learned Additional Standing
Counsel, on the other hand, supported the impugned judgment
and argued that in view of the relationship between the appellant
and the victim and since it was the question of the future of the
victim and also the prestige of the family, in such a scenario,
delay in lodging of F.I.R. in a case of this nature cannot be a
ground to disbelieve the prosecution case. Learned counsel
further argued that the 164 Cr.P.C. statement having not been
confronted to the victim (P.W.3) in accordance with law, the
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same cannot be utilized as contradiction. He also argued that the
doctor examined the victim after almost seven months of the
first occurrence and non-finding of any sign or symptom of
recent penetrative sexual assault or any injury on the private
part of the victim and particularly, in view of the nature of act
committed by the appellant, it cannot be said that on the basis
of the medical evidence, the victim?s evidence regarding
commission of rape or outraging her modesty by the appellant is
to be discarded.
Adverting to the contentions raised by the learned
counsel for the respective parties, let me first deal with the
evidence on record relating to the age of the victim.
Age of the victim:
The victim (P.W.3) in her evidence, which was
recorded on 23.08.2018, stated her age to be seventeen years
and she further stated that the occurrence took place in the
month of Srabana (in the month of July) three years back. No
question has been put by the learned defence counsel in the
cross-examination disputing the age of the victim as stated by
her. P.W.9, the Headmaster of the school, where the victim was
prosecuting her studies, has proved the School Admission
Register vide Ext.15 from which it appears that the date of birth
of the victim was mentioned to be 25.03.2002. Similarly, the
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transfer certificate issued by the Headmaster of Nodal U.P.
School, Sikri on the basis of which, the date of birth was
mentioned in the School Admission Register during the
admission of the victim has been marked as Ext.16. Of course,
the victim has not stated about her date of birth and even the
mother of the victim, being examined as P.W.2, has also not
stated about the age of the victim or the date of birth of the
victim. The Headmaster (P.W.9) has stated that while admitting
the victim to the school, he had only verified the C.L.C. and the
birth certificate was not produced before him. Therefore, it is
clear that the School Admission Register (Ext.15), which was
proved by the prosecution, reflects the age of the victim on the
basis of the C.L.C. of Nodal U.P. School, Sikri. There is no
evidence that the Investigating Officer (P.W.8) has ever visited
the Nodal U.P. School, Sikri to verify what was the age of the
victim mentioned in the School Admission Register though the
transfer certificate of the school has been proved vide Ext.16.
Suggestion has been given to the Headmaster (P.W.9) that he
did not enter the date of birth of the victim correctly in the
School Admission Register to which he has denied. No evidence
has been adduced by the defence contradicting the age of the
victim as stated by her or as was reflected in the School
Admission Register. P.W.1, the doctor has stated that the
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victim?s age was more than fourteen years and less than sixteen
years as on the date of her cross-examination which was based
on her physical, dental, radiological findings and secondary
sexual characteristics and the medical report has been marked
as Ext.1. The evidence of the doctor (P.W.1) has not been
challenged at all. Therefore, even though the birth certificate of
the victim has not been proved by the prosecution but in view of
the unchallenged testimony of the victim relating to her age, the
evidence of the doctor (P.W.1) and the entry relating to date of
birth of the victim in the School Admission Register proved by
P.W.9, I am of the humble view that learned trial Court has
rightly come to the conclusion that the age of the victim has not
been challenged and the victim was under sixteen years of age
at the time of the occurrence.
Delay in lodging of F.I.R.:
So far as the delay in lodging of F.I.R. is concerned,
the evidence of the victim indicates as to how she was
threatened by the appellant to be killed after the first incident, in
case she tried to disclose the occurrence before others. She
stated that after the appellant ceaselessly repeated the heinous
act, when she disclosed the occurrence before her mother
(P.W.2), there was a quarrel between P.W.2 and the appellant
and again after seven months of the said incident, there was
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another attempt made by the appellant to have sex with her
which was witnessed by P.W.2 and as per the advice of P.W.2,
she lodged the F.I.R.
In a case of this nature where the perpetrator of the
crime is none else than the father of the prosecutrix, the
reputation and prestige of the family so also the future of the
prosecutrix were at stake, it was not at all unnatural on the part
of the family members to have deliberations among themselves
before lodging the F.I.R.. Delay in lodging the F.I.R. in such
cases is a normal phenomenon as held by the Hon?ble Supreme
Court so also by different High Courts including this Court in
umpteen number of decisions and therefore, the contention
raised by the learned Amicus Curiae appearing for the appellant
that on account of seven months delay in lodging of the F.I.R.
after the first incident, the prosecution case is to be viewed with
suspicion, cannot be accepted. Delay in such cases does not
necessarily indicate that the F.I.R. was tainted or it was
deliberate or intentional to falsely implicate the appellant in the
commission of the crime.
The Highest Court of the land has accorded much
sensitivity to the issue of sexual exploitation of children and has
time and again called for special approach to be adopted to deal
with such unfortunate cases. It is deemed apposite to reproduce
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the following observations made by the Hon?ble Supreme Court
in the case of State of Rajasthan -Vrs.- Om Prakash
reported in (2002) 5 Supreme Court Cases 745:
<19. Child rape cases are cases of perverse lust
for sex where even innocent children are not
spared in pursuit of the sexual pleasure. There
cannot be anything more obscene than this. It is
a crime against humanity. Many such cases are
not even brought to light because of social
stigma attached thereto. According to some
surveys, there has been steep rise in the child
rape cases. Children need special care and
protection. In such cases, responsibility on the
shoulders of the courts is more onerous so as to
provide proper legal protection to these children.
Their physical and mental immobility call for
such protection. Children are the natural
resource of our country. They are country's
future. Hope of tomorrow rests on them. In our
country, a girl child is in a very vulnerable
position and one of the modes of her
exploitation is rape besides other mode of
sexual abuse. These factors point towards a
different approach required to be adopted.=
Even after more than seven decades of
independence, unfortunately the women of this country and
more particularly, the minor girls have not got true freedom from
the vulture like lust of perpetrators of sex crimes. However, the
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crimes are not end in themselves, rather those have spiraling
effect on not only the psyche of prosecutrix but also on her and
her family?s social repute. These factors often impede the
hapless victims to come forward, report the crime and surrender
the hopes of justice to the judicial system. Their compulsions
should be acknowledged by the Courts in an empathetic manner
and the judicial institutions must ensure that bare technicalities
of criminal jurisprudence do not become shackles of victimhood,
forcing the victims to silently digest their pain. Hence, delay in
lodging F.I.R. in cases of child rape should be taken with much
sensitivity and the concerned Courts must judiciously weigh all
the surrounding factors which led to such delay. It is nothing but
adding a pinch of salt to her injury to discard the otherwise
meritorious case of the prosecutrix merely because she failed to
knock at the portals of justice in a time-bound manner.
Analysis of the Evidence:
The victim being examined as P.W.3 has stated that
in the evening hours on the first day of occurrence, when she
was engaged in cooking for dinner, the appellant came to her
and moved his hands all over her body including her breasts and
private parts for which she wept and the appellant left her. She
further stated that the appellant threatened her to kill by
throttling in case she would disclose the incident before anybody.
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She also did not disclose before her mother (P.W.2), who
returned home in the evening hours, on account of such threat.
She further stated that in that very night, the appellant removed
her dress and pierced his finger into her private parts for which
when she wept, he left her. She further stated that two to three
days thereafter, again the appellant touched her private parts by
removing her clothes for which she reported the incident to her
mother (P.W.2) and a quarrel ensued between P.W.2 and the
appellant. After seven months of such incident, again the
appellant made an attempt to rape her and P.W.2 witnessed the
incident. In the cross-examination, the victim has stated that
there are four rooms in their house and the members of the
family sleep together in one room. She further stated that since
she cried slowly on the fateful night, her mother (P.W.2) who
was sleeping in that room could not hear it. She further stated
that out of fear, she could not disclose the incident to her mother
(P.W.2) when she asked as to why she was weeping in the last
night. A contention was raised by the learned Amicus Curiae
appearing for the appellant that in the 164 Cr.P.C. statement,
the victim (P.W.3) has not stated about commission of rape and
therefore, her evidence in Court in that respect cannot be
accepted. However, such argument does not hold water
inasmuch as the statement of the victim recorded under section
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164 Cr.P.C. has not been confronted to her even though the
same has been marked as Ext.4.
Law is well settled that not only the attention of the
witness is to be drawn to the previous statement in writing or
reduced to writing for the purpose of giving reasonable
opportunity to the witness to explain the contradiction, but also
the same has to be proved through the I.O. who has taken down
the same if it is a statement recorded under section 161 Cr.P.C.
and similarly the 164 Cr.P.C. statement contradictions, if any,
has to be put to the victim to enable her to explain the same.
In the case of State of Delhi -Vrs.- Shri Ram
Lohia reported in A.I.R. 1960 Supreme Court 490, it is held
that statements recorded under section 164 Cr.P.C. are not
substantive evidence and cannot be made use of except to
corroborate or contradict the witness and admission by a witness
that his statement was recorded under section 164 Cr.P.C. and
that what he had stated there was true would not make the
entire statement admissible much less that any part of it could
be used as substantive evidence in the case.
It is pertinent to cite a recent judgment delivered by
this Court in the case of Bapun Singh -Vrs.- State of Odisha
(JCRLA No. 57 of 2019 disposed of on 19.07.2023) where
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the probative value of statements recorded under section 164 of
the Cr.P.C. was analyzed in the following words:
<Law is well settled that the statement of a
witness recorded under section 164 Cr.P.C. is
not substantive evidence. Substantive evidence
is one which is given by witness in Court on oath
in presence of the accused. Statement of a
witness under section 164 of the Code is
recorded in absence of accused and as such it is
not substantive evidence. The statement of a
witness under section 164 Cr.P.C. is recorded
being sponsored by the investigating agency.
During course of trial, if the witness does not
support the prosecution case and declared
hostile by the prosecution then the prosecution
with the permission of the Court can confront his
previous statement made before the Magistrate
to him. A statement recorded under section 164
Cr.P.C. can be used either for corroboration of
the testimony of a witness under section 157 of
the Evidence Act or for contradiction thereof
under section 145 of the Evidence Act. The
mandate of law is that there should be
substantial compliance of the requirements
under section 145 of the Evidence Act and the
purpose of second part of section 145 is to give
reasonable opportunity to the witness to explain
the contradictions after his attention is drawn to
them in a fair and reasonable manner. The
Court must ensure that if there is contradiction
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between the previous statement in writing and
statement made in the Court then that portion is
brought to the attention of the witness and he is
given reasonable opportunity to explain the
contradictions.=
In the case in hand, on a perusal of the 164 Cr.P.C.
statement, which has been marked as Ext.4, made by none else
than the victim herself, she has stated as to how the appellant
outraged her modesty and attempted to commit rape on her on
different dates after disrobing her in absence of other family
members. She has further stated that her father (appellant), on
a number of occasions, has misbehaved with her (KHARAP
BYABAHARA KARUTHILE). Since the previous statement of the
victim has not been confronted to her by the learned defence
counsel and the victim has got no opportunity to explain the
same, I am not inclined to accept the contention raised by the
learned Amicus Curiae appearing for the appellant that in view of
the absence of specific statement under section 164 of the
Cr.P.C. indicating insertion of finger into her private parts, the
appellant should be acquitted of the charge under section 376 of
the I.P.C.
It is correct that the doctor (P.W.1) who examined
the victim did not notice any injury on her person and did not
find any sign or symptoms of recent penetrative sexual assault,
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however the time gap between the commission of rape and the
date of medical examination of the victim is a factor which is to
be taken into account in this case and therefore, the evidence of
the victim cannot be disbelieved or discarded only basing upon
findings of the doctor.
Coming to the overt act committed by the appellant
as per the statement of the victim which also gets corroboration
from the evidence of her mother (P.W.2) that the victim
disclosed before her that the appellant had on the first date, in
the evening hours, moved his hand all over her body including
her breasts and private parts and, in that night, she removed her
dress and pierced his finger into her private parts and two to
three days thereafter, the appellant touched her private parts by
removing her clothes and after seven months of the said
incident, the appellant attempted to rape the victim which was
witnessed by her mother (P.W.2), is clinching and trustworthy
and the evidence in that respect adduced by the prosecution has
not been shaken at all.
Section 354 of the I.P.C. prescribes punishment for
assault or criminal force to woman with intent to outrage her
modesty and section 354A(2) prescribes punishment for the
offence, inter alia, specified in clause (i) of sub-section (1) of the
said section for physical contact and advances involving
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unwelcome and explicit sexual overtures. Section 354B of the
I.P.C. prescribes punishment for assault or use of criminal force
to woman with intent to disrobe. The evidence of the victim
(P.W.3) has remained unshaken that the appellant not only
outraged her modesty by making physical contact and
unwelcome explicit sexual overtures but also disrobed her.
Therefore, the ingredients of the offence under section 354,
354A(2) and 354B of the I.P.C. are attracted against the
appellant.
Similarly in view of the definition of >rape? under
section 375 of the I.P.C., the insertion of finger into the vagina
of a woman would also attract the ingredients of the offence. The
appellant being the father of the victim, who was a minor girl,
and having been in a position of control and dominance over her,
committed rape on her. However, since the victim has stated
that only on one occasion, the appellant has inserted his finger
into her private part, therefore, I am of the humble view that the
ingredients of the offence under section 376(2)(n) of the I.P.C.,
which deals with punishment for commission of rape repeatedly
on the same woman, would not be attracted.
Section 376(2)(f) provides punishment for a person
who being a relative, guardian or teacher of, or in a position of
trust or authority towards the woman, commits rape on such
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woman. In this case, the appellant being the father did not
hesitate to commit such preposterous and bestial act upon her
minor daughter. The victim was completely helpless as her
father, who is naturally entrusted with the noble duty of caring
and protecting her, could not have control over his lust and tried
to quench the sexual thirst by exploiting her. This degrading act
of the appellant stupefies the judicial conscience of this Court as
it is unthinkable to even comprehend that in a country where
women are traditionally viewed as an incarnation of the God and
daughters are worshipped as >Devi?, such heinous acts are being
committed by a father. A daughter needs a father to be the
standard against which she will judge all men. When the father
who is the creator of the girl child and supposed to act as her
protector, takes the role of the predator, it would be sheer
betrayal of someone?s trust and faith and has got serious impact
on humanity. In this context, it is worthwhile to quote the
Sanskrit shloka, " " which means that
the Almighty God resides where women are worshipped. Where
women are honoured, divinity blossoms there. It highlights the
importance of how women should be treated with dignity and
respect. There is no doubt that being in a position of authority
and trust, the appellant misused his position and sexually
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exploited his innocent minor daughter and raped her. Thus, the
ingredients under section 376(2)(f) are made out in this case.
376(2)(i) of the I.P.C. prescribes punishment for
commission of rape on a woman when she is under sixteen years
of age. As it has already been held that the victim was under
sixteen years of age at the time of the occurrence, the
ingredients of the offence under 376(2)(i) of the I.P.C. are
attracted against the appellant.
Section 376(2)(k) of the I.P.C. prescribes
punishment to a person who being in a position of control or
dominance over a woman, commits rape on such woman and
since the appellant being the father of the minor victim was in a
position of control and dominance over the victim, committed
rape on her, the ingredients of the offence under section
376(2)(k) of the I.P.C. are also attracted against the appellant.
Section 6 of the POCSO Act prescribes punishment
for >aggravated penetrative sexual assault? which has been
defined under section 5 of the POCSO Act and section 5(n) states
that:
<whoever, being a relative of the child through
blood or adoption or marriage or guardianship or
in foster care or having a domestic relationship
with a parent of the child or who is living in the
same or shared household with the child,
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commits penetrative sexual assault on such
child is said to commit aggravated penetrative
sexual assault.=
Section 10 of the POCSO Act prescribes punishment
for >aggravated sexual assault? and the same has been defined
under section 9 of the POCSO Act and section 9(p) states that:
<whoever, being in a position of trust or
authority of a child, commits sexual assault on
the child in an institution or home of the child or
anywhere else is said to commit aggravated
sexual assault.=
In view of the foregoing discussions, I am of the
humble view that there is no infirmity or illegality in the
impugned judgment and the learned trial Court has rightly found
the appellant guilty under sections 354/354A(2)/354B/376(2)
(f)(i)(k) of the I.P.C. and sections 6 and 10 of the POCSO Act.
The punishment imposed by the learned trial Court for the
offences under sections 354B/376(2)(f)(i)(k) of the I.P.C. and
section 10 of the POCSO Act cannot be said to be on the higher
side, in fact the punishment which has been imposed on the
appellant is R.I. for ten years for the offences under section
376(2)(f)(i)(k) of the I.P.C. and the same is the minimum
punishment prescribed for such offences. While acquitting the
appellant under section 376(2)(n) of the I.P.C., the conviction of
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the appellant under sections 354/354A(2)/354B/376(2)(f)(i)(k)
of the I.P.C. and sections 6 and 10 of the POCSO Act and the
sentence under sections 354B/376(2)(f)(i)(k) of the I.P.C. and
section 10 of the POCSO Act passed by the learned trial Court
stand confirmed.
Accordingly, the Jail Criminal Appeal being devoid of
merits stands dismissed.
Trial Court Records with a copy of this judgment be
sent down to the learned Court concerned forthwith for
information and necessary action.
Before parting with the case, I would like to put on
record my appreciation to Mr. Rajib Lochan Pattnaik, the learned
Amicus Curiae for rendering his valuable help and assistance
towards arriving at the decision above mentioned. The learned
Amicus Curiae shall be entitled to his professional fees which is
fixed at Rs.7,500/- (rupees seven thousand five hundred only).
This Court also appreciates the valuable help and assistance
provided by Mr. Manoranjan Mishra, learned Additional Standing
Counsel.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 2nd August 2023/Sipun Page 27 of 27