Orissa High Court
Rajesh Mund Alias Bulu vs State Of Orissa on 18 April, 2016
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 37 of 2016
Application under section 439 of the Code of Criminal Procedure,
1973.
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Rajesh Mund @ Bulu ........ Petitioner
- Versus-
State of Orissa ........ Opp. Party
For Petitioner: - Mr. Ashwini Kumar Das
Jagruti Barik
For Opp. Party: - Mr. Prem Kumar Pattnaik
(A.G.A)
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S. K. SAHOO
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Date of Argument- 11.04.2016 Date of order- 18.04.2016
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S. K. SAHOO, J.The petitioner Rajesh Mund @ Bulu is an accused in Kegaon P.S. Case 116 of 2015 which corresponds to C.T. Case No. 353 of 2015 pending in the Court of Special Judge, Kalahandi, Bhawanipatna in which charge sheet has been submitted under sections 366-A, 372 and 373 of the Indian Penal Code read with sections 4, 5 and 6 of the Immoral Traffic 2 (Prevention) Act, 1956 (hereafter '1956 Act') and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter 'POCSO Act').
The bail application of the petitioner has been rejected by the learned Special judge, Kalahandi, Bhawanipatna vide order dated 29.09.2015.
2. The prosecution case, as per the First Information Report lodged by one Chema Majhi of village Bagdori before the Inspector-in-Charge of Kegaon Police Station on 15.08.2015 is that on 14.08.2015 at about 10 a.m., three unknown girls came with two unknown persons in two motor cycles to the house of co-accused Dulamani Bihari of village Bagdori and thereafter they took those girls towards the hilly area and engaged those girls in prostitution. It is further stated that previously some unsocial persons also brought minor girls and engaged them in prostitution for which the girls and women of the village were facing a lot of problem and even the parents and guardians of the girls were not allowing them to go to school. The petitioner and other two co-accused persons were named as accused in the First Information Report, in which number of co-villagers put their signatures as witnesses.
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On receipt of FIR, Kegaon P.S. Case No. 116 dated 15.08.2015 was registered under sections 4, 5 and 6 of 1956 Act. The Inspector-in-Charge, Kegaon Police Station namely Smt. Smita Kenke herself took up investigation of the case. During course of investigation, she visited the spot, examined the informant and other witnesses, arrested the petitioner and other co-accused persons. The victims were rescued and they were sent for medical examination. The accused persons were also medically examined and forwarded to Court on 15.08.2015. As prima facie case was established, charge sheet was submitted on 13.12.2015 against the petitioner and others.
3. During course of investigation, the petitioner moved an application for bail before the learned Special Judge, Kalahandi, Bhawanipatna which was rejected on the ground that 161 Cr.P.C. statements of the victims indicate their age to be 12 and 14 years and the petitioner was identified in the T.I. parade and the accused persons kept the victims girls in a house and sexually assaulted them and moreover the investigation was under progress.
4. The learned counsel for the petitioner Mr. Ashwini Kumar Das contended that the 161 Cr.P.C. statements of the victims contradict their 164 Cr.P.C statements. In the 161 Cr.P.C. 4 statements, the victims have not stated about any sexual assault on them whereas in their 164 Cr.P.C. statements they have stated so specifically. It is the further contention that in view of such discrepancies, the statements have got no evidentiary value and cannot be acted upon and therefore taking into account the period of detention of the petitioner in judicial custody, the bail application should be favourably considered.
Mr. Prem Kumar Pattnaik, learned Additional Government Advocate appearing on behalf of the State
vehemently opposed the prayer for bail and submitted that in view of the statements of the victims recorded under section 164 Cr.P.C., prima facie case for the offences in which charge sheet was submitted is clearly established and since the petitioner has been identified in the T.I. parade, in a case of this nature where the victim girls are minors and the accused persons repeatedly committed gang sexual assault on them, the petitioner should not be released on bail.
5. Adverting to the contentions raised by the learned counsels for the respective parties and on perusal of the 164 Cr.P.C. statements of the victim girls, one of the victim girls is found to be aged about 15 years while the other is aged about 16 years as on the date of recording of their statements by the 5 Magistrate. One of the victims has stated that about two months back, one Sanjana Didi brought her to her house to provide her with some works and kept her in her house. She induced the victim for prostitution and when the victim was not inclined, she was assaulted. Sanjana Didi brought her and the other victim in a bus to Junagarh where she telephonically contacted some persons and forcibly asked the victims to consume liquor and thereafter the victims were taken to a jungle and they were induced for prostitution with three persons and one of those persons forcibly raped the victim after removing her clothes and thereafter for four days the victim was raped continuously. The other victim has stated about commission of gang rape on her by some unknown persons.
On perusal of the 161 Cr.P.C. statements of the victim girls, it is found that they have stated their age to be 12 years and 14 years but they have not stated about the commission of sexual assault on them by anybody.
The medical examination report of one of the victim indicates that as per ossification test, her age was 15 to 16 years but no bodily injury was detected on her body suggesting forcible sexual intercourse and there was also no sign of recent sexual intercourse but there was rupture of hymen with old tear present 6 which was admitting two fingers easily. The other victim was also medically examined and no bodily injury was noticed suggesting forcible sexual intercourse and there is no sign or symptoms of recent sexual intercourse.
The petitioner after his arrest was also sent for medical examination and it was found that he was capable of committing sexual intercourse but no sign or symptoms of sexual intercourse or any bodily injury suggesting forcible sexual intercourse was noticed.
It further appears that the petitioner has been correctly identified in the T.I. parade by the minor victim girls.
6. Considering of the materials available on record, it is prima facie found that both the victims are minors as on the date of occurrence though there are little variations in their age in the two statements recorded under section 161 Cr.P.C. and 164 Cr.P.C. Even though they have not stated about the commission of sexual assault in their 161 Cr.P.C. statements but they have categorically stated about commission of such offence in their 164 Cr.P.C. statements. Moreover, the petitioner has been identified in the T.I. parade by the victims. Even though there are contradictions in the statements of the victims recorded under 7 section 161 Cr.P.C. vis-a-vis 164 Cr.P.C. but at this stage, it would not be proper to discard the 164 Cr.P.C. statements relying upon the 161 Cr.P.C. statements as contended by the learned counsel for the petitioner.
Sections 24 and 26 of the POCSO Act lay down certain procedural formalities to be maintained by the police officer while recording the statement of the child. The investigating agency should be sensitive in such matters. It seems that the whole idea of the legislature while laying down such procedure is that the child who has already been victimized by the perpetrator of the crime should not face any uncomfortable situation or mental trauma during such recording of statement. Recording of the statement of the child at his residence or at a place where he usually resides or at the place his choice and that to in presence of his parents or any other person in whom the child has trust or confidence is the requirement of law. Similarly, the statement of the child should be recorded as far as practicable by the woman police officer not below the rank of sub-inspector and the concerned police officer should not be in uniform while recording the statement. Every possible steps should be taken to record such statement by audio-video electronic means. The police officer should also take 8 the assistance of a translator or an interpreter, if necessary while recording the statement of the child. Every endeavor should be made by the police officer while examining the child that the child shall not come in contract with the accused in any way. In case the child is having mental or physical disability, the police officer should seek the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in the field. According to my humble view, the police officer should specifically mention the compliance of the provisions under section 24 and 26 of the POCSO Act in the case diary while recording the statement of the child victim. Such provisions are made for the benefit of the victim and not for the benefit of the accused. Any procedural infirmity in recording of such statement of the child victim by the police officer would not be a ground for rejection of such statement if it is otherwise cogent and coherent. Such infirmity will also not vitiate the trial nor can the accused claim acquittal on that ground. If the Trial Court is of the opinion that the police officer while recording the statement of the child victim has deliberately flouted the provisions prescribed under POCSO Act, in appropriate cases the Court can recommend for initiation of departmental proceeding against such erring police officer.
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In this case there is nothing on record to show that the procedural formalities as prescribed under the POCSO Act were maintained by the police officer while recording the statements of the child victims. However, the learned Magistrate while recording the statements of the victims has conducted the competency test by putting some questions to them and after being satisfied that the victims are competent and understand the duty to tell the truth and give rational answers to the questions put to them has recorded their statements under section 164 Cr.P.C. Therefore, at this stage the statements of the victims recorded under section 164 Cr.P.C. can be safely relied upon.
So far as the discrepancies are concerned, the Trial Court would be in a better portion to assess the evidentiary value of the statements of the victims after they are examined, cross- examined with reference to their previous statements and medical examination reports.
Taking into account the surrounding circumstances under which the poor minor girls on the false pretext of providing with some works were taken from their respective houses and induced for prostitution against their will and sexually ravished for days together, the nature and gravity of the offences, the 10 punishment prescribed for such offences, the psychological impact that might have been created upon the victims and the deleterious and deadly effect of such crime on the society, I am not inclined to grant bail to the petitioner.
Accordingly, the bail application filed by the petitioner sans merit and stands dismissed.
I wish to clarify that the learned Trial Court shall not be influenced by any observations made in this order as I have not expressed any opinion on the merits of the case.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 18th April, 2016/ Sukanta