Batakrushna Sethy vs State Of Orissa
2021 Latest Caselaw 12155 Ori

                        IN THE HIGH COURT OF ORISSA, CUTTACK

                                        JCRLA No. 4 Of 2010

        From the judgment and order dated 20.10.2009 passed by the
        Asst. Sessions Judge -cum- Chief Judicial Magistrate, Nayagarh
        in S.T. Case No.5/199 of 2008/2007.
                              -----------------------------

               Batakrushna Sethy                      ........                               Appellant

                                                    -Versus-

               State of Orissa                        ........                               Respondent



                      For Appellant:                     -             Mr. Pratyush Ranjan
                                                                       (Amicus curiae)


                      For State:                         -             Mr. Jyoti Prakash Patra
                                                                       Addl. Standing Counsel
                                           -----------------------------

        P R E S E N T:

                          THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 25.11.2021

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S.K. SAHOO, J. "Sochanti Jamayo Yatra Vinasyatyasu Tat Kulam

Na Sochanti Tu Yatraita Vardhate Tad Hi Sarvada"

-Manusmriti Verse 3.57

The meaning of this Sanskrit Shloka is that the family

in which the women folks live in grief, that family perishes very // 2 //

soon, but the family where they are not unhappy is always

prosperous.

It is said that fathers are role models for the

daughters and they lay a foundation of security, trust and love

for the daughters. In early stages of life, a father helps the

daughter in her emotional and mental development. A girl

develops confidence and self-esteem, if she has a good bond

with her father. The girls have a better career and become more

successful in life because of the early influence of their fathers.

Daughters tend to judge all the other men who come into their

lives later based on the example their fathers set for them. In

every stage of her life, a loving father makes his daughter feel

good about her as he helps her to grow into a good woman. The

absence of a father creates a void in the daughter's life and sets

her a feeling of anxiety and trouble in trusting men in general.

Hon'ble Mr. Justice H.K. Sema of Supreme Court of

India speaking for the Bench in the case of State of Himachal

Pradesh -Vrs.- Asha Ram reported in (2005) 13 Supreme

Court Cases 766 observed as follows:

"There can never be more graver and heinous crime than the father being charged of raping his own daughter. He not only delicts the law but it is a betrayal of trust. The father is the

// 3 //

fortress and refuge of his daughter in whom the daughter trusts. Charged of raping his own daughter under his refuge and fortress is worse than the gamekeeper becoming a poacher and treasury guard becoming a robber."

2. The appellant Batakrushna Sethi faced trial in the

Court of the Assistant Sessions Judge -cum- Chief Judicial

Magistrate, Nayagarh in S.T. Case No.5/199 of 2008/2007 for

commission of offences punishable under sections 341, 376 and

506 of the Indian Penal Code and vide impugned judgment and

order dated 20.10.2009, though the learned trial Court acquitted

him of the charge under section 506 of the Indian Penal Code

but found him guilty of the offences under sections 341 and 376

of the Indian Penal Code and sentenced to undergo R.I. for ten

years and to pay a fine of Rs.20,000/- (rupees twenty

thousand), in default, to undergo R.I. for a further period of two

years under section 376(1) of the Indian Penal Code and to

undergo S.I. for a period of one month under section 341 of the

Indian Penal Code and the substantive sentences were directed

to run concurrently.

3. The prosecution case, in short, is that the victim,

who was aged about fourteen years at the time of occurrence,

lodged a written report (Ext.1) before the A.S.I. of Police of

// 4 //

Chandapur Outpost under Ranpur police station in the district of

Nayagarh on 27.08.2007 stating therein that on 24.08.20007 at

about 11 p.m., when she was sleeping with her paternal

grandmother, the appellant who is her father insisted his mother

to leave her with him so that she would rise early and prosecute

her studies at dawn. When the victim's grandmother expressed

her reluctance, the appellant kicked the door of the room as the

same was closed from inside and as per the insistence of the

appellant, his mother had to leave the victim to go with him to

another room where the mother and younger sister of the victim

were sleeping. When the victim slept beside her mother, the

appellant forcibly slept in between her and her mother.

Thereafter, the appellant started squeezing the breasts of the

victim and inserted his hands inside her Punjabi. When the

mother of the victim objected to such indecent act of the

appellant, he kicked her threatening to kill her if she would ever

protest. The appellant then made the victim naked by

unfastening her 'Churidar'. When the victim protested, the

appellant intimidated her to assault her if she would cry. After

taking off the 'Churidar' and the panty of the victim and rolling

up her 'Semiz' upto her neck, the appellant started squeezing

her breast and inserted his penis inside her vagina lifting her

thighs up. The appellant committed rape on the victim for four to

// 5 //

five times at half an hour intervals in that night. It is further

stated by the victim in her written report that the appellant also

committed rape on her on 25.08.2007 and 26.08.2007 night by

intimidating her and also threatened her not to disclose about it

to anyone.

4. On receipt of the written report, the A.S.I. of

Chandapur Outpost made S.D. entry, sent the written report to

the officer in charge, Ranpur police station for registration of the

case and accordingly, Ranpur P.S. Case No.183 dated

27.08.2007 was registered under sections 376 and 506 of the

Indian Penal Code against the appellant.

The officer in charge of Ranpur police station then

handed over the charge of investigation to A.S.I. of Police,

Chandapur Outpost namely Sangram Keshari Paikarai (P.W.8)

who during course of investigation, examined the victim and

other witnesses, arrested the appellant on 27.08.2007, sent

requisition for medical examination of the appellant as well as

the victim (P.W.3), seized the seminal fluid of the appellant and

the vaginal swab of the victim along with pubic hair of the

appellant collected by the Medical Officer, seized the wearing

apparels of the appellant as well as the victim under seizure list

(Exts. 4 & 5) and sent all the exhibits to S.F.S.L., Rasulgarh for

// 6 //

chemical examination and forwarded the appellant to Court. He

also visited the spot and prepared the spot map marked as Ext.6

and on completion of investigation, charge sheet was submitted

on 17.10.2007 against the appellant under sections 376, 341

and 506 of the Indian Penal Code.

5. During course of trial, in order to prove its case, the

prosecution examined eight witnesses.

P.W.1 Ahalya Sethi is the mother of the victim, P.W.2

Radhamani Sethi is the mother of the appellant, P.W.3 is the

victim, who is also the informant in the case, P.W.4 Nrusingha

Sethi is the father of the appellant, P.W.5 Dr. Sadananda Mishra

medically examined the appellant on police requisition and

submitted the report vide Ext.2, P.W.6 Dr. Govinda Chandra

Panigrahi medially examined the victim on police requisition and

submitted his report vide Ext.3, P.W.7 Bapi Sethi is the younger

brother of the appellant and P.W.8 Sangram Keshari Panigrahi

was the then A.S.I. of Chandapur Outpost who is the

Investigating Officer of the case. Out of the eight witnesses,

P.W.1, P.W.2, P.W.4 and P.W.7 did not support the prosecution

case for which they were declared hostile.

The prosecution exhibited ten documents. Ext.1 is

the written F.I.R. lodged by P.W.3, Ext.2 is the medical report of

// 7 //

the doctor (P.W.5) in respect of the appellant, Ext.3 is the medial

report of the doctor (P.W.6) in respect of the victim, Exts.4, 5, 7

and 8 are the seizure lists, Ext.6 is the spot map, Ext.9 is the

forwarding report of the material objects and Ext.10 is the

chemical examination report.

6. The defence plea of the appellant is one of denial and

it is stated, inter alia, that being persuaded by his co-villager

Nakula Pradhan, he has been falsely implicated in this case.

7. The learned trial Court assessing the oral as well as

documentary evidence on record, has been pleased to hold that

there was no reason to disbelieve the sole testimony of the

prosecutrix as no daughter would ever lie on a vital issue of this

nature against her own father. It was further held that in the

night of 25.08.2007 and 26.07.2007, the appellant wrongfully

restrained the victim, committed incestual acts i.e rape on her in

presence of her mother. It was further held that P.W.1 had

resorted to fake and concocted story to get her husband

(appellant) escape from criminal liability and thereby sacrificing

the cause of her own daughter (victim). However, the learned

trial Court did not find any material relating to criminal

intimidation and acquitted the appellant of the charge under

section 506 of the Indian Penal Code. The learned trial Court did

// 8 //

not give any importance to the defence contention regarding

delay in lodging of the first information report and held the

appellant guilty under sections 341 and 376 of the Indian Penal

Code.

8. Mr. Pratyush Ranjan, learned Amicus Curiae

appearing for the appellant contended that the victim herself is

the informant in this case and she wrote the first information

report in her own hand where she stated that rape was

committed on her by the appellant in the night on three days i.e.

on 24.08.2007, 25.08.2007 and 26.08.2007, but strangely in her

evidence, she has stated that the occurrence took place only on

two days. It is further argued that the surrounding circumstances

under which the appellant stated to have committed rape on the

victim appears to be an improbable feature inasmuch as the

mother of the victim and other children of the appellant were

very much present in the room where rape was allegedly

committed and even the mother of the victim was awake and

she stated to have protested against the incestuous activity of

the appellant. It is argued that three of the family members of

the victim being examined as P.W.1, P.W.2 and P.W.4, who are

the mother, grandmother and grandfather of the victim

respectively, have not supported the prosecution case for which

// 9 //

they were declared hostile. Even the doctor (P.W.6), who

examined the victim on 27.08.2007 found no external injury on

her person and stated that the victim was not capable of being

subjected to intercourse as even the tip of the index finger was

found not admissible into her vaginal opening without causing

pain and there was no injury on her private part. The appellant

was also examined on the very day by the doctor (P.W.5), who

noticed no injury on the private part or any portion of the body

and therefore, the rape on the victim is not acceptable. There is

also delay in lodging F.I.R. and as such the impugned judgment

and order of conviction is not sustainable in the eye of law and

benefit of doubt should be extended in favour of the appellant.

Mr. Jyoti Prakash Patra, learned Addl. Standing

Counsel appearing for the State, on the other hand, supported

the impugned judgment and submitted that there was no earthly

reason on the part of a daughter to implicate her father in a case

of rape. The evidence of the victim is very clear, cogent,

clinching and trustworthy and even though other family

members have not supported the prosecution case for obvious

reasons to save the appellant, but that cannot be a ground to

discard the evidence of the victim. It is argued that the medical

evidence in a case of rape is not always a decisive factor to

believe or disbelieve the victim of rape particularly where the

// 10 //

victim's evidence has remained unshaken. He further argued that

the defence has put forth different pleas for false implication of

the appellant in the case, which is inconsistent. It is argued that

the victim was constantly pressurised by her family members not

to lodge F.I.R. against the appellant and therefore, delay in

lodging F.I.R. is inconsequential and as such, no weight has to

be attached to such plea and the impugned judgment and order

of conviction should not be interfered with.

9. Adverting to the contentions raised by the learned

counsel for the respective parties, it is not disputed that the

appellant is the father of the victim and they were residing

together under one roof and other family members who are the

witnesses in the case like P.W.1, P.W.2 and P.W.4 were also

residing with them. The occurrence stated to have taken place in

the night inside the bed room and therefore, there is no chance

of any other outsider deposing about the same.

Now, it is to be seen how far the prosecution has

succeeded in establishing its case.

Law is well settled that the testimony of a victim in

cases of sexual offences is vital and unless there are compelling

reasons which necessitate looking for corroboration of a

statement, the Courts should find no difficulty to act on the

testimony of the victim of a sexual assault alone to convict the

// 11 //

accused. No doubt, her testimony has to inspire confidence. The

deposition of the victim has to be taken as a whole and since she

is not an accomplice and her evidence stands at a higher

pedestal than an injured witness, seeking corroboration to her

statement is not always necessary. Wherever the Court finds it

difficult to accept her version, it may seek corroboration from

some evidence which lends assurance to her version. The

evidence of the victim of rape should not be viewed with the aid

of spectacles fitted with lenses tinged with doubt, disbelief or

suspicion. (Ref: (2003) 8 Supreme Court Cases 551,

Bhupinder Sharma -Vrs.- State of Himachal Pradesh).

The victim (P.W.3) was a minor girl at the time of

occurrence. When she deposed in Court on 05.01.2009, she

stated her age to be fifteen years. P.W.1, P.W.2 and P.W.4 have

also stated that the victim was minor at the time of occurrence.

There is no challenge to the age of the victim by the defence.

Even the doctor (P.W.6), who examined her, has stated that he

calculated the age of the victim to be sixteen years on the basis

of her dental examination and he referred the victim to D.H.H.,

Nayagarh for ossification test, but no ossification test report has

been proved in the case.

The victim (P.W.3) stated in her evidence that in the

night when the first occurrence took place, she was asleep with

// 12 //

her paternal grandmother (P.W.2) in one of the rooms of her

house and at that time, the appellant knocked at the door of the

room and insisted that she should sleep with her mother so that

she could easily continue her study early in the morning at the

dawn. The appellant took her from that room and left her in the

room where the victim's mother was asleep. When the victim

slept beside her mother in that room, the appellant forcibly slept

in between the victim and her mother (P.W.1). The appellant

started misbehaving with the victim to which P.W.1 objected but

the appellant told to P.W.1 that the victim would be his daughter

during the day time and wife during the night and then the

appellant forcibly committed rape on her in spite of objection of

P.W.1. The victim further stated that at the time of committing

rape, the appellant gagged her mouth with his hands. On the

next morning, the mother (P.W.1) and grandmother (P.W.2) of

the victim advised her not to disclose about the incestuous act of

the appellant before anybody, otherwise it would be a shame for

the family. The victim further stated that in the next night, again

the appellant insisted her to sleep in one room where P.W.1 was

sleeping, to which she protested but the appellant prevailed over

such objection, for which she had to sleep with her mother and

again the appellant committed rape on her in that night for which

she came back to the room of her grandmother and slept till the

// 13 //

morning and she also narrated everything before her

grandmother. The victim further stated that in the next morning,

her paternal grandfather took her to the house of one Nakula

Pradhan of her village and there she narrated the entire incident

before Nakula Pradhan who came to their house in the evening

and confronted to the appellant about the incident and when the

appellant denied the allegation, Nakula Pradhan slapped him and

left the house and then on the next day, the victim being

accompanied with her mother lodged the first information report.

The victim proved her written report, which has been marked as

Ext.1. In the cross-examination, the victim has stated that inside

the room in which she was raped by the appellant, her sister and

two brothers, who were aged about nine, seven and four years

were sleeping on the floor. It has been confronted to the victim

and proved through the Investigating Officer (P.W.8) that she

had not stated in the first information report that in the first

night, the appellant expressed that she would be his daughter in

the day time and wife in the night. In my humble view, such

minor contradiction no way shatters the evidence of the victim,

which appears to be clear, clinching and trustworthy and nothing

has been brought out in the cross-examination as to why the

victim would tell falsehood against the appellant, who is none

else than her father. Undue importance cannot be attached to

// 14 //

minor discrepancies which are immaterial and of no

consequence. Trivial discrepancies ought not to obliterate an

otherwise acceptable evidence.

P.W.2 stated that in the night of the incident, the

victim was sleeping with her and on the next morning, she

informed her that the appellant had kept lustful eyes on her. She

stated that she herself, P.W.1 and P.W.4 persuaded the victim

not to utter allegations against the appellant but the victim

defied their suggestions. Thus, it seems right from the

beginning, the victim was pressurised not to report the matter in

the police station by none else than her own family members.

Even though the evidence of the doctor (P.W.6), who

examined the victim is that there was no external injury on the

person of the victim and she was found not capable of being

subjected to intercourse as even the tip of the index finger was

found not admissible into her vaginal opening without causing

pain and that no injury was found in her private part, but in my

humble view, in the facts and circumstances of the case when

the solitary evidence of the victim appears to be trustworthy,

unblemished and is of sterling quality and there was no earthly

reason on the part of the victim to implicate her own father

falsely in a case of rape, merely on the evidence of the doctor,

the entire prosecution case cannot be disbelieved.

// 15 //

Even though in the very room where the rape was

committed, apart from P.W.1, three other children i.e. the sister

and two brothers of the victim were sleeping on the floor but in

view of the age of those three children, who were just nine

years, seven years and four years, it cannot be a ground to

disbelieve the prosecution case. P.W.1 being the mother of the

victim has also not supported the prosecution case and she was

declared hostile and cross-examined by the prosecution. Though

P.W.1 has stated that she accompanied the victim to lodge the

first information report, but she stated that she requested the

victim not to lodge the F.I.R. against the appellant. Even the

grandfather and grandmother of the victim have also not

supported the prosecution case and they were also declared

hostile. Therefore, there was tremendous pressure on the victim

not to lodge the F.I.R.

The reasons given by the defence either by way of

suggestions to the victim or by way of bringing about the same

through the evidence of P.W.1 or taking the plea in the accused

statement, it appears to be inconsistent. The victim has been

suggested by the defence that she used to go regularly to the

house of Nakula Pradhan to see T.V. programme prior to the

occurrence and the appellant was opposing her frequent visit to

the house of Nakula Pradhan and since the appellant had

// 16 //

stopped her visiting the house of Nakula Pradhan, there was hot

exchange of words between the appellant and Nakula Pradhan

for which being persuaded by Nakula Pradhan, a false case has

been foisted. The victim has denied such suggestion. P.W.1 has

stated that the victim was playing truant while going to school

from the house every day and mixing with boys and when the

appellant had chastised her for the same and even did not allow

her to go to her school, the case has been instituted. In the 313

Cr.P.C. statement, the appellant however stated that once the

victim was talking with a boy in Ramachandi temple secretly and

after she returned home, he slapped her for which she has

foisted the case. Therefore, the defence plea is inconsistent.

So far as the delay in lodging the first information

report (Ext.1) is concerned, I find that the evidence of the victim

in Court is that the occurrence took place in the night on two

consecutive dates i.e. on 24.08.2007 and 25.08.2007 and on

26.08.2007 after the matter was reported to Nakula Pradhan, he

came to the house of the appellant in the evening hours,

confronted him about the occurrence and slapped him and on the

next day i.e. on 27.08.2007, the first information report was

lodged. Of course, Nakula Pradhan has not been examined to

substantiate the same. In the first information report, the victim

has stated that on 26.08.2007 night also she was raped by the

// 17 //

appellant, which of course she has not stated in her evidence but

in my humble view, this discrepancy cannot be a ground to

disbelieve her evidence. In a case of this nature, the family

members used to take time to decide as to whether to lodge the

first information report or not for the sake of prestige of family.

In the case in hand, when the appellant is none else than the

father of the victim and there was continuous pressure on the

victim by her own family members not to lodge the F.I.R., in my

humble view, delay in lodging the first information report can be

said to have been satisfactorily explained by the prosecution.

The crime committed by the appellant has a

deleterious effect on the civilized society. The perpetrator of the

crime being the father against his own daughter, it warrants a

strong deterrent judicial hand. Rape is a crime which is more

heinous than murder as it destroys the very soul of hapless

woman. The victim carries an indelible social stigma on her head

and deathless shame as long as she lives.

In view of the foregoing discussions, I find no

infirmity or illegality in the impugned judgment and order of

conviction passed by the learned trial Court and I am of the

humble view that the appellant has been rightly convicted under

sections 341 and 376 of the Indian Penal Code. In the factual

// 18 //

scenario, the sentence awarded by the learned trial Court cannot

be said to be excessive under any circumstances.

The appellant was taken into judicial custody in

connection with this case on 27.08.2007. Neither was he

released on bail during trial nor during pendency of the appeal.

Therefore, the appellant has already undergone the substantive

sentence as well as the default sentence that has been imposed

on him for non-payment of fine. Thus, the appellant shall be

released from custody forthwith, if his detention is not required

in any other case.

In view of the enactment of the Odisha Victim

Compensation Scheme, 2017 and the nature and gravity of the

offence committed and the family background of the victim, I

feel it necessary to recommend the case of the victim to District

Legal Services Authority, Nayagarh to examine the case of the

victim after conducting the necessary enquiry in accordance with

law for grant of compensation. Let a copy of the judgment be

sent to the District Legal Services Authority, Nayagarh for

compliance.

Trial Court record with a copy of this judgment be

communicated to the concerned Court forthwith for information

and necessary action.

// 19 //

Accordingly, the Jail Criminal Appeal stands

dismissed.

Before parting with the case, I would like to put on

record my appreciation to Mr. Pratyush Ranjan, 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).

...............................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 25th November 2021/PKSahoo/RKM