Orissa High Court
Bhima Bhoi vs State Of Orissa on 27 January, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 70 of 2008
From judgment and order dated 30.01.2006 passed by the
learned Addl. Sessions Judge, Sonepur in S.T. No.28 of 2005.
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Bhima Bhoi ........ Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Pradip Kumar Dhal
For Respondent: - Mr. Jyoti Prakash Patra
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- 07.01.2016 Date of Judgment- 27.01.2016
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S. K. SAHOO, J.This is yet another case of unwanted and unintended pregnancy. The girl child who was shown this world by her unwed mother is not a sign of true love but of forced love. The victim of rape has to suffer tragedy throughout her life as she believed on the treacherous lover who left her on the doorstep of uncertainty to live a life of insecurity.
2The appellant Bhima Bhoi faced trial in the Court of learned Addl. Sessions Judge, Sonepur in Sessions Trial No. 28 of 2005 for offences punishable under sections 493, 417, 376 and 506 of Indian Penal Code. The appellant was acquitted of the charges under sections 493, 417 and 506 of Indian Penal Code. However, he was found guilty under section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for two years.
2. The prosecution case, as per the First Information Report lodged by the victim 'RB' is that she was aged about sixteen years and a resident of village Banjhipali under Binka Police Station in the district of Sonepur. She was extremely poor and working with her parents as binding labourers of Kundu leaves in different villages. One Contractor namely Jalu Hue who belonged to village Kaintara was doing Kendu leaves business. The appellant Bhima Bhoi who happened to be the nephew of the contractor Jalu Hue was also working as binding labourer of Kendu leaves along with his mother.
It is the further case of the prospection as per the First Information Report that in the month of Jyestha while the victim along with her parents and others were binding Kendu leaves in village Jabada, at that time the appellant along with his 3 mother and uncle were also present there and engaged in similar activities. On one night in the month of Jyestha, while the victim was sleeping inside a temporary shed (tent), at that time the appellant came and raped her forcibly. When the victim shouted, the appellant assured to marry her. With such assurance, the appellant used to keep sexual relation with the victim on number of occasions. Thereafter, the victim went to village Gulunda to work as a labourer and there also the appellant kept sexual relation with her. As the victim and the appellant belonged to same caste and the appellant had given assurance of marriage, the victim did not disclose about their illicit relationship before her parents. The appellant also threatened her not to disclose about their affair before anybody. Thereafter, the victim went to village Chulimal in connection with labour work where also the appellant kept sexual relation with her. Subsequently the victim came to village Mahulpali and while working there as a labourer, she realised that she was pregnant. She narrated about her pregnancy before the appellant who told her not to abort and again gave assurance for marriage. This time the victim disclosed about her affair with the appellant before her parents, uncle and others. The family members of the victim approached the appellant and confronted him about the pregnancy of the victim but the appellant pleaded his ignorance about such pregnancy. 4 In that connection, a meeting was convened on 28.10.2004 in village Kaintara by the parents of the victim. Numbers of persons from different villages were present in that meeting. In that meeting also, the appellant pleaded his ignorance and refused to marry the victim. As no settlement could be arrived at in the meeting, finding no way out, the victim accompanied her mother, uncle and elder brother to the Police Station and lodged the FIR.
3. The officer-in-charge of Binka Police Station namely, Kishore Kumar Panigrahi (P.W.8) reduced the oral report of the victim into writing and treated it as First Information Report and registered Binka P.S. Case No. 91 dated 06.11.2004 under sections 493 and 376 of Indian Penal Code and himself took up investigation of the case.
During course of investigation, P.W.8 examined the victim, her mother, elder brother and other witnesses, visited the spot, prepared the spot map Ext.3. He sent the victim to A.D.M.O., District Headquarters Hospital, Sonepur for her medical examination. He arrested the appellant on 06.11.2004 and sent him for his medical examination to Medical Officer, C.H.C., Binka and then forwarded him to Court on the same day. On 08.11.2014 the victim was sent to the District Headquarters Hospital, Bolangir for ossification test and subsequently he received the medical examination report of the accused. On 5 08.12.2004, the I.O. sent the victim to the Gynecologist of C.H.C., Binka for her medical examination. On 31.12.2004 the I.O. sent the X-ray plates of the victim to the Professor, F.M.T., V.S.S. Medical College and Hospital, Burla and collected the report. After completion of investigation, charge sheet was submitted against the appellant on 03.01.2005 under sections 493, 417 and 506 of Indian Penal Code.
4. 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 sections 493, 417, 376 and 506 of Indian Penal Code on 15.09.2005 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
5. In order to prove its case, the prosecution examined ten witnesses.
P.W.1 Santosh Bhoi is the brother of the victim and he stated about the disclosure made by the victim regarding commission of rape on her by the appellant at village Jabada and thereafter raped her repeatedly with assurance of marriage for which she became pregnant. He further stated about the meeting that was convened in the village where the appellant refused to 6 marry the victim. He proved the First Information report Ext.1 lodged by P.W.2.
P.W. 2 is the victim who narrated about the incidents relating to commission of rape on her by the appellant on number of occasions with assurance of marriage. She also stated about the village meeting and about the lodging of the First Information Report by her. She further stated that she had given birth to a female child.
P.W.3 Nabin Amat stated about the proceedings of the meeting that took place on 28.10.2004 during the evening hours.
P.W.4 Lalu Nayak also stated about the proceedings of the village meeting.
P.W.5 Hara Bhoi is the mother of the victim who stated about the disclosure made by the victim regarding commission of rape by the appellant. She also stated about the convening of a meeting in the village. She also stated that the victim gave birth to a female child.
P.W.6 Bira Bhoi is a co-villager of the appellant who also stated about the proceedings of the village meeting.
P.W.7 Dr. Padmahansa Dora was the Medical Officer attached to District Headquarters Hospital, Sonepur who 7 examined the victim on 07.11.2004 on police requisition and proved the Medical Examination Report Ext.2.
P.W.8 Kishore Kumar Panigrahi who was the officer- in-charge of Binka Police Station is the Investigating Officer.
P.W.9 Dr. Ananta Kumar Behera was the O & G Specialist, C.H.C., Binka who examined the victim on police requisition on 08.12.2004 and found the victim to be pregnant by eight months. He proved his report Ext.5/2.
P.W.10 Dr. Birendra Dharua was the Pediatric Specialist attached to Binka C.H.C. who examined the appellant on 06.11.2004 and proved his report Ext.7.
No witness was examined on behalf of the defence. The prosecution exhibited ten documents. Ext.1 is the F.I.R., Ext.2 is the report of the doctor P.W.7, Ext.3 is the spot map, Exts.4, 5 and 6 are the medical requisitions, Ext.6/2 is the ossification test report, Ext.7 is the medical examination report of the appellant and Exts. 8, 9 and 10 are the X-ray plates of the victim.
6. The defence plea of the appellant was one of denial and it was pleaded that he had not committed rape on the victim promising to marry her.
7. The learned Trial Court found the evidence of the victim to be quite clear, consistent, convincing, credible and 8 above reproach and was of the view that it was not suffering from any inherent infirmity and improbability. The learned Trial Court further held that the victim consented under misconception of fact which arose out of fraud practiced on her. The learned Trial Court also accepted the version of the victim that she was subjected to repeated rape by the appellant. The learned Trial Court further held that the ingredients of the offences under sections 493, 417 and 506 of Indian Penal Code are not made out and accordingly acquitted the appellant of such charges but found him guilty under section 376 of Indian Penal Code.
8. Mr. Pradip Kumar Dhal, learned counsel appearing on behalf of the appellant submitted that the statement of the victim that she was forcibly raped on the date of occurrence inside the tent on the first occasion is not at all acceptable inasmuch as she was sleeping in a common tent where the victim and an old lady and the sister of the appellant were also sleeping. According to the learned counsel for the appellant, there are sufficient materials on record to indicate that the victim was a consenting party even to the first incident of alleged rape. The learned counsel further urged that there was inordinate delay in lodging First Information Report and no explanation has been offered for such delay and therefore the prosecution case should be disbelieved. The learned counsel further submitted that the 9 Investigating Agency has not conducted any DNA test to ascertain the paternity of the child which is fatal to the prosecution case and therefore the appellant should be given benefit of doubt. The learned counsel relied upon the ratio laid down in case of Kaini Rajan -Vrs.- State of Kerala reported in (2013) 56 Orissa Criminal Reports (SC) 684 and Deepak Gulati -Vrs.- State of Haryana reported in (2013) 55 Orissa Criminal Reports (SC) 891.
Mr. Jyoti Prakash Patra, learned Additional Standing Counsel appearing on behalf of the State on the other hand supported the impugned judgment and contended that the delay in lodging First Information Report in a case of rape cannot be a ground to give benefit of doubt to the appellant. He further submitted that the victim was not only a minor at the time of occurrence but she was also under sixteen years of age at the time of deposition and therefore her consent is no consent in the eye of the law. He further contended that since the evidence of the prosecutrix is inspiring confidence and there are other corroborating evidences in the form of disclosure of incident by the victim before others and her pregnancy etc., the learned Trial Court has rightly found the appellant guilty under section 376 of Indian Penal Code.
10Age of the victim
9. Adverting over the age of the victim at the time of the first incident, the victim has stated her age to the fifteen years at the time of her deposition which was dated 5th of October, 2005. The first incident according to the victim took place about a year back at village Jabada during the mid-night. Thus as per the statement of the victim given in Court, she was less than fifteen years of age at the time of occurrence. She has mentioned her age to be sixteen years in the First Information Report which was lodged about seven months after the first incident.
The learned counsel for the appellant urged that the mother of the victim has been examined as P.W.5 but she has not stated anything regarding the age of the victim. No other witnesses have stated regarding the age of the victim. No other documents like birth certificate, educational certificate etc. has been produced by the prosecution relating to the proof of age of the victim and therefore it cannot be said that the victim was a minor.
Even though the documentary evidence like birth certificate has not been produced but since the victim belonged to a remote rural area and she and her family members were working as binding labourers of Kundu leaves, it would not be 11 proper to reject the testimony of the victim relating to her age for non-production of birth certificate. There is also no material that the victim was ever reading in any school and therefore one should not expect any educational certificate relating to the proof of her age. Though there is little variance in the age as given in the FIR and in the Court but since there is no specific challenge to the evidence of the victim relating to her age given in Court, taking note of all the surrounding circumstances, I am of the view that the victim was under sixteen years of age at the time of first incident of rape.
During course of investigation, the victim was sent for medical examination and her X-ray was conducted at District Headquarters Hospital, Bolangir for the purpose of ossification test and the X-ray plates bearing Nos. 2361, 2362, 2363 dated 08.11.2004 were produced before the Professor, F.M.T., V.S.S. Medical College & Hospital, Burla, Sambalpur for determining the age for the victim girl. The Professor and H.O.D. of F.M.T., after examining the X-ray plates produced by the Investigating Officer, opined the age of the victim to be 18 to 19 years at the time of his examination i.e. on 31.12.2004.
No doubt, the doctor relying on the X-ray plates has given the ossification test report of the victim and opined her age to be 18 to 19 years but since the technician who stated to have 12 conducted the X-ray examination of the victim and prepared the X-ray plates at District Headquarters Hospital, Bolangir has not been examined in Court and even the X-ray report has not been proved in the case, it would be difficult to accept the ossification test report findings under Ext.6/2 particularly when the doctor who has given such report has also not been examined.
The facts narrated above indicate a very pathetic state of affairs relating to the manner in which the investigation has been conducted and also the manner in which the Public Prosecutor has failed to bring relevant materials on record in connection with the age proof of the victim. The investigating officer should have cited the technician who had prepared the X- ray at District Headquarters Hospital, Bolangir as a witness. He should have also collected the X-ray reports. However, if the investigation was faulty, it was not the fault of the victim or the witnesses. In the case of a defective investigation, the Court has to be circumspect in evaluating the evidence more carefully and it would not be right in acquitting an accused solely on account of the defective investigation as to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
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Similarly the Public Prosecutor has not examined Dr. Abhiram Behera, Professor and H.O.D., Department of F.M.T., Burla, Sambalpur who prepared the ossification test report under Ext. 6/2 during trial though shown as a charge sheet witness and it is the Investigating Officer who has proved the report. Public Prosecutor should not act mechanically in the discharge of his statutory function which would give undue advantage to the accused.
In view of what has been narrated above, it is very difficult to place reliance on the findings regarding age of the victim as per the report under Ext.6/2.
Thus while not accepting the medical evidence, in view of the unchallenged testimony of the victim relating to her age, I am of the view that she was under sixteen years of age at the time of first incident of rape.
Delay in lodging FIR
10. The contention of the learned counsel for the appellant that for the inordinate delay in lodging the First Information Report, the prosecution case should be disbelieved cannot be accepted.
Delay in lodging FIR in a case of rape cannot be said to be an unusual phenomenon. Rape brings enormous shame to the victim and it is after much persuasion that a victim of rape 14 agrees to go to the police station to lodge a report. In a case relating to rural areas where there is tradition bound society, it would be quite unsafe to throw out the prosecution case merely on the ground that there was some delay in lodging FIR. The Court cannot shut its eyes to the trauma suffered by the prosecutrix due to the occurrence, the reluctance of the prosecutrix and her family members to go the police station for instituting a case, the concerns of the reputation of the victim and honour of entire family and various other significant factors while considering delay in lodging FIR in a case of rape.
In the case in hand, the victim was given assurance of marriage on a number of occasions by the appellant for which she kept mum without disclosing her illicit affair with the appellant before anybody. She became pregnant and thereafter when the appellant tried to play tricks, she disclosed before her mother. The meeting was convened to settle the issue but when the appellant disowned her affair with the victim, the FIR was lodged. Therefore, it cannot be said that the prosecution has not offered any satisfactory explanation for delay in lodging FIR or for that reason, the prosecution case should be disbelieved. Plea of consent
11. The contention of the learned counsel for the appellant that the victim was a consenting party and therefore 15 there should not have been a conviction under section 376 of Indian Penal Code is wholly unacceptable. The victim has stated that while during midnight she was sleeping inside the tent, the appellant entered inside the tent, gagged her mouth and had forcible sexual intercourse with her. She has further stated that when she tried to shout, the appellant asked her not to shout and promised to marry her. Since I have held the age of the victim to be under sixteen years of age as on the date of first incident of rape, her consent is immaterial and inconsequential in view of clause 'sixthly' of section 375 of Indian Penal Code.
In case of Satish Kumar Jayanti Lal Dabgar -Vrs.- State of Gujarat reported in (2015) 61 Orissa Criminal Reports 261, it is held as follows:-
"14. First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the Indian Penal Code would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows:
375. Rape--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
x x x x x x Sixthly - With or without her consent, when she is under sixteen years of age.16
Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
15. The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance."
Sequence of subsequent events
12. The victim has categorically stated that not only at the time of first incident but also on subsequent occasions, the appellant promising to marry her went on committing rape 17 repeatedly at different places like Gulunda, Chulimal and Mahulpali for which she became pregnant. The victim stated that at the time of first incident, when she told the appellant to disclose the matter, he promised to marry her as they belonged to same caste. She has further stated that she had never gone to the appellant but he used to come to her. She has further stated that she was not on visiting terms to the house of the appellant prior to the occurrence. She had further stated that she did not disclose about her pregnancy as the appellant had asked her not to divulge.
Unless there is voluntary participation by the victim of permissible age after exercise of intelligence based on the knowledge and full exercise of choice between resistance and assent, it cannot be consent in the eye of law. The victim was not only under sixteen years of age but she was given impression by the appellant that he would marry her and since both of them belonged to same caste, the victim perhaps believed that the marriage was possible. She must not have known the consequences of the act. Her non-resistance to the overtures of the appellant cannot be said to be free exercise of choice between resistance and assent and therefore her consent, if any, was in consequence of misconception of fact. The appellant had knowledge that the consent was given by the 18 victim in consequence of the misconception of fact and he deliberately made the promise of marriage from time to time with a view to elicit the assent of the victim. It seems that the appellant had never intended to marry her but he wanted to play with the life of the minor girl and then forget her. That is the exact reason why he followed the victim from place to place, kept physical relationship with her and when the victim became pregnant, the appellant disowned paternity and refused to marry the victim in the meeting.
Let us now see the ratio of the decisions cited by the learned counsel for the appellant. In case of Kaini Rajan -Vrs.- State of Kerala reported in (2013) 56 Orissa Criminal Reports (SC) 684, it is held as follows:-
"12. ......An inference as to consent can be drawn if only best on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be 19 ascertained only on a careful study of all relevant circumstances."
In case of Deepak Gulati -Vrs.- State of Haryana reported in (2013) 55 Orissa Criminal Reports (SC) 891, it is held as follows:-
"18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of 20 the accused was mala fide, and that he had clandestine motives."
The ratio of the aforesaid citations are not applicable to the facts of the present case inasmuch as the victim in the present case is under the age of sixteen years which was not the case in the cited decisions.
Medical Evidence
13. The victim was examined on 07.11.2004 by the doctor (P.W.7) at District Headquarters Hospital, Sonepur who referred her case to Gynecologist for confirmation of pregnancy. She collected sample of pubic hair and vaginal swab for chemical examination. The victim was further examined by the doctor (P.W.9) on 08.12.2004 who found the victim girl to be pregnant by eight months. The appellant was also examined by the doctor (P.W.10) on 06.11.2004 and he was opined to be capable of committing sexual intercourse.
14. Coming to the contention of the learned counsel for the appellant regarding conducting of DNA test to establish the paternity of the child, it is the settled principle of law that DNA test in a matter relating to paternity of the child should not be directed by the Court as a matter of course or in a routine manner, whenever such a request is made. In this case, nobody has made any request for conducting such test. Moreover, the 21 paternity of the child is not the issue in this case rather the issue is whether the appellant raped the victim on number of occasions.
The evidence of the victim is clinching and trustworthy and her evidence gets corroboration from the testimonies of other witnesses as well as medical evidence and therefore, I am of the view that the learned Trial Court has rightly convicted the appellant under section 376 of Indian Penal Code. Since the appellant has been sentenced to undergo imprisonment for seven years which is the minimum sentence prescribed for such offence at the time of occurrence and there is no adequate and special reasons to impose lesser sentence than the minimum as prescribed, in my humble view, the verdict of conviction and sentence of imprisonment and fine imposed on the appellant warrants no interference.
15. The learned Additional Standing Counsel on instruction submitted a letter dated 20.01.2016 written by the Inspector-in-Charge, Binka Police Station addressed to the learned Advocate General, Odisha, Cuttack wherein it is mentioned that the victim has got a eleven years daughter namely, Binodini Bhoi who is reading in Class-VI and the victim is staying separately from her parents at village Banjipali with her minor female child and maintaining her livelihood by doing 22 labour work. It is also mentioned that the appellant has encroached some government land of his village and constructed a house and staying with his wife and minor child and maintaining his livelihood by doing labour work.
Before parting with the case, in view of the precarious condition of the victim of rape who is now maintaining her minor daughter doing labour work, it is felt necessary to recommend the case of the victim to the District Legal Services Authority, Sonepur to examine the case of the victim after conducting necessary enquiry in accordance with law for grant of compensation under the "The Odisha Victim Compensation Scheme, 2012". Let a copy of this order be sent to District Legal Services Authority, Sonepur for compliance.
16. In view of the aforesaid premised reasons, I am of the considered view that the impugned judgment and order of conviction and the sentence passed there under by the learned Trial Court does not suffer from any infirmity and therefore, I am not inclined to interfere with the same.
17. Resultantly, the jail criminal appeal, being devoid of merit, stands dismissed.
18. The appellant seems to have initially produced before the Court after arrest during investigation on 06.11.2004 and he 23 was released on bail on 24.02.2005. After the judgment of the learned Trial Court pronounced on 30.01.2006, he was again remanded to custody and he was granted bail by this Court in this appeal on 01.02.2011. Thus the appellant has remained in custody for about five years and three and half months. The bail bonds of the appellant stand cancelled and he is directed to surrender forthwith before the learned Trial Court within one week to serve out the remaining period of his sentence, failing which the learned Trial Court shall take appropriate steps for his arrest.
Lower Court's record with a copy of this judgment be communicated to the learned Trial Court forthwith for information and necessary action.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The, 27th January, 2016/Sisir