Orissa High Court
Jugal Kishore Parichha vs State Of Odisha on 29 November, 2021
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No.526 Of 2016
From the judgment and order dated 15.09.2016 passed by the
Sessions Judge -cum- Special Judge, Kandhamal, Phulbani in
G.R. Case No.28 of 2014.
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Jugal Kishore Parichha ........ Appellant
-Versus-
State of Odisha ........ Respondent
For Appellant: - Mr. Manas Chand
For State: - Mr. Arupananda Das
Addl. Government Advocate
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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: 29.11.2021
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S.K. SAHOO, J. The appellant Jugal Kishore Parichha faced trial in
the Court of the learned Sessions Judge -cum- Special Judge,
Kandhamal, Phulbani in G.R. Case No.28 of 2014 for commission
of offences punishable under sections 342, 376(2)(f)/511 and
506 of the Indian Penal Code read with sections 6/18 of the
Protection of Children from Sexual Offences Act, 2012 (hereafter
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'POCSO Act') and the learned trial Court vide impugned
judgment and order dated 15.09.2016 though acquitted the
appellant of the charges under sections 342 and 506 of the
Indian Penal Code, however found him guilty under sections
376(2)(f)/511 of the Indian Penal Code and sections 6/18 of the
POCSO Act and sentenced him to undergo R.I. for ten years on
each count under sections 376(2)(f)/511 of the Indian Penal
Code and sections 6/18 of the POCSO Act and the substantive
sentences were directed to run concurrently.
2. The prosecution case, in short, as per the first
information report lodged by Babita Nayak (P.W.2), the mother
of the victim is that when she had been to her father's place at
Nandagiri since seven days prior to the lodging of F.I.R. and
staying there, the victim was staying with her father (appellant)
at her paternal place in village Raikia. On 24.04.2014 in the
evening hours at about 7.00 p.m., the victim telephoned her and
requested her to take her back and she was not willing to stay in
her house with the appellant. The informant brought the victim
with her to her paternal place at Nandagiri on 25.04.2014, where
the victim disclosed before her that the appellant took her inside
one room in the backside of the house, locked the door and he
himself became naked, pushed the victim on the floor and when
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the victim shouted, the appellant gagged her mouth by means of
a cloth for which she could not shout. The appellant also
threatened her with dire consequence and torn the clothes of the
victim. The victim gave pushes to the appellant and fled away
from that room. The informant changed the clothes of the victim.
On the basis of such first information report before
the Inspector in-charge of Raikia police station, Raikia P.S. Case
No.26 dated 27.04.2014 was registered under sections 342, 354,
506 of the Indian Penal Code and the Inspector in-charge of
Raikia police station directed A.S.I. Laxman Mallick (P.W.5) to
take up investigation.
During course of investigation, P.W.5 examined the
informant and other witnesses including the victim, visited the
spot, prepared the spot map (Ext.4), seized the wearing apparels
of the victim on production of P.W.2 as per seizure list Ext.3,
arrested the appellant on 27.04.2014 and forwarded him to
Court on 28.04.2014. The Investigating Officer also issued
requisition to the Headmistress of ST Catherin Girls High School
in order to cause production of the age proof certificate of the
victim. Accordingly, the Headmistress furnished the information
by way of a letter marked as Ext.5. Subsequently, the
Investigating Officer made a prayer to the Special Court to add
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offence under section 8 of the POCSO Act. The statement of the
victim was recorded under section 164 Cr.P.C. Another prayer
was made to the Special Court to add offences under sections
376/511 of the Indian Penal Code and then P.W.5 handed over
the charge of investigation to the Inspector in-charge Birala
Chandra Sahis (P.W.4) on 20.07.2014 who examined two
witnesses and on completion of investigation, submitted charge
sheet against the appellant under sections 376/511/506 of the
Indian Penal Code read with section 8 of the POCSO Act.
3. During course of trial, in order to prove its case, the
prosecution has examined as many as six witnesses.
P.W.1 is the victim, P.W.2 Babita Nayak is the
informant, who is also the mother of the victim, P.W.3 Mayajini
Pradhan was the Home Guard of Raikia police station, who
accompanied the Investigating Officer near the house of P.W.2
where seizure of the wearing apparels of the victim was made on
production by P.W.2 as per seizure list Ext.3, P.W.4 Birala
Chandra Sahis and P.W.5 Laxman Mallick are the two
Investigating Officers and P.W.6 Smt. Gitarani Samantaray is the
Headmistress of ST Catherin Girls High School, who on the
written requisition of the Investigating Officer produced a letter
relating to the date of birth of the victim based on the entry
// 5 //
made in the school admission register and she also proved the
admission register of the victim showing her date of birth as
21.07.2002.
The prosecution exhibited ten documents. Ext.1 is
the 164 Cr.P.C. statement of the victim (P.W.1), Ext.2 is the
F.I.R., Ext.3 is the seizure list in respect of seizure of tore shirt
of P.W.1, Ext.4 is the spot map, Ext.5 is the letter of
Headmaster, ST. Catherine's Girls' High School, Raikia, Ext.6 is
the prayer of P.W.5 to add offence under section 8 of the POCSO
Act, Ext.7 is the prayer of P.W.5 to record the statement of
victim, Ext.8 is the prayer of P.W.5 to add offences under
sections 376/511 of the Indian Penal Code, Ext.9 is the
requisition to the school of the victim to furnish her date of birth
and Ext.10 is the admission register of ST. Catherine's Girls' High
School, Raikia.
4. The defence plea of the appellant is one of denial and
it is stated that on the date of occurrence, the victim along with
two other children had been to see dance ceremony without
taking any consent from the appellant for which the appellant
punished her and for such reason, a false case has been foisted.
Two witnesses have been examined on behalf of the
defence.
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D.W.1 Bimal Kishore Parichha is the uncle of the
appellant and he stated that he was residing in one campus with
the appellant and he had seen the victim on 24.04.2014 in
between 4.00 p.m. to 5.00 p.m., but the victim stated nothing
about the incident before him and that he came to know about
the incident only on 27.04.2014.
D.W.2 Madhabananda Das, who was the Headmaster
of Saraswati Sisu Vidya Mandir, Raikia, who proved the invitation
card vide Ext.A to show that a function was being held on
24.04.2014 in the school.
The defence also exhibited two documents. Ext.A is
the invitation card of Saraswati Sisu Vidya Mandir, Raikia and
Ext.B is the Itihas Panji for the year 2013-14.
5. The learned trial Court after assessing the oral as
well as documentary evidence on record came to hold that there
are no contradictions in the evidence of the victim and absence
of injury on her wrist did not affect her credible evidence and
that from the evidence on record, it is clear that the appellant
had intended to sexually ravish the victim but for her escape at
the nick of the moment, it was not possible on the part of the
appellant to be successful in committing the crime. Learned trial
Court further held that there are no materials on record that the
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appellant threatened the victim in any manner causing alarm and
accordingly, the appellant was acquitted of the charge under
section 506 of the Indian Penal Code. Learned trial Court did not
accept the defence plea and did not give any emphasis on the
aspect of delay in lodging the first information report. Learned
trial Court relied on the evidence of the victim (P.W.1) and her
mother (P.W.2) and came to hold that the prosecution has
successfully established the charges under sections
376(2)(f)/511 of the Indian Penal Code and sections 6/18 of the
POCSO Act.
6. Mr. Manas Chand, learned counsel appearing for the
appellant argued that the victim's evidence does not appear to
be truthful one and there is delay in lodging the first information
report and the doctor has not been examined and no
independent witness has been examined to corroborate the
prosecution version and therefore, benefit of doubt should be
extended in favour of the appellant.
Mr. Arupananda Das, learned Additional Government
Advocate appearing for the State, on the other hand, supported
the impugned judgment and contended that the evidence of the
victim is very clear, cogent and trustworthy and there was no
reason on her part to falsely implicate the appellant, who is none
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else than her father. Moreover, her evidence gets corroboration
from the evidence of her mother before whom she disclosed
about the occurrence soon after the occurrence. It is further
stated that the victim herself has stated that she had not
sustained any bodily injury on account of fall and therefore, non-
examination of the doctor cannot be a ground to disbelieve the
prosecution case. It is further submitted that delay in lodging of
the first information report in a case of this nature has got no
importance at all as it takes time for the family members to
decide whether to lodge the first information report or not as it
involves prestige of the family and moreover, the appellant is
none else than the father of the victim. Learned counsel further
submitted that since it has been duly proved that the victim was
minor at the time of occurrence, no fault can be found in the
impugned judgment and therefore, the appeal should be
dismissed.
7. Adverting to the contentions raised by the learned
counsel for the respective parties, let me first deal with the age
of the victim at the time of occurrence. The victim (P.W.1) has
stated her age to be twelve years when she was examined on
22.10.2014 in Court. She specifically stated her date of birth to
be 21.07.2002. The occurrence took place on 24.04.2014. No
challenge has been made to the age aspect of the victim by the
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defence in her cross-examination. The mother of the victim being
examined as P.W.2 has also stated that the victim was twelve
years old at the time of occurrence and that her date of birth is
21.07.2002. The Headmistress of the school where the victim
was prosecuting her studies was examined as P.W.6 and she has
proved the school admission register, which has been marked as
Ext.10. From the relevant entries of Ext.10, the date of birth of
the victim is found mentioned as 21.07.2002. Thus, the oral as
well as documentary evidence is consistent that the date of birth
of the victim is 21.07.2002 and since the occurrence in question
took place on 24.04.2014, thus, the victim was twelve years as
on the date of occurrence.
Mr. Manas Chand, learned counsel for the appellant
has not challenged the age aspect of the victim. Therefore, I am
of the humble view that the prosecution has successfully
established that the victim was aged about twelve years at the
time of occurrence.
8. Now, coming to the evidence of the victim, who has
examined as P.W.1, she has stated that the occurrence took
place on 24.04.2014 at about 1.00 p.m. inside her house at
Raikia. On that day, she along with her father (appellant) and
younger brother was in the house. When she was outside the
house, the appellant called her and she entered into the room of
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the appellant. The appellant closed the door of the room and
then he opened his own pant and asked the victim to lick his
penis. The learned trial Court noticed the demeanour of the
victim that while she was deposing in Court, she was weeping.
The victim further stated that when she denied to lick the penis
of the appellant, the appellant pushed her and gagged her mouth
in a piece of cloth and also tied her hands. Then the appellant
pounced over her body and torn her dresses and opened her
pant and at that time, the victim managed to open the tie of her
hands and gave pushes to the appellant and escaped from his
clutches by opening the door of the room. The victim further
stated that she went to Raikia bazaar, made a telephone call to
her mother and requested her mother to take her back from the
house and on the next day of occurrence, her mother took her to
G.Udayagiri where she narrated the incident before her mother.
The victim further stated that during course of commission of
offence, the appellant threatened her that she would be killed if
she disclosed the incident before others. In the cross-
examination, the victim has stated that the houses of other
persons are situated nearer to the spot house and her younger
grandfather and grandmother and younger brothers were
present at the time of occurrence. She further stated that any
shout from her house would be audible to her neighbour. She
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further stated that her mother was absent from the house. The
victim further stated in the cross-examination that when the
appellant called her into a room, which is situated in the
backyard and closed the door, she called out for help and the
appellant gave a push for which she fell down on the ground but
she had not sustained any bodily injury on account of fall. She
further stated that she did not sustain any injury on her both
wrists and nobody had seen her while coming out of the spot
house after the incident. She further stated that she did not
disclose anything before her younger brother so also the other
persons present after the incident. The victim further stated that
the appellant abused her and her younger brother since they had
gone to watch drama at Sishu Mandir, Raikia without his
permission on 23.04.2014. She denied the specific suggestion
given by the defence that she went to see the drama at Sishu
Mandir, Raikia on 24.04.2014. The victim has well stood the test
of cross-examination and the defence has not succeeded in
demolishing her evidence.
The evidence of the victim gets corroboration of the
evidence of her mother, who being examined as P.W.2 has
stated that on 24.04.2014 in the evening hours, she got a
telephone call from the victim and on 25.04.2014, she came and
took the victim with her to village Nandagiri where the victim
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disclosed before her that the appellant called her to a room and
when she went inside the room, the appellant closed the door
and put lock from inside and then the appellant opened his own
dress, gave a push to the victim for which she fell down on the
floor of the room and then appellant pounced over the victim and
when she raised shout, the appellant gagged her mouth with a
piece of cloth and tied her hands and the appellant further
threatened her not to disclose the incident before anybody or
else she would be killed and that the appellant also torn her
clothes and she managed to escape from the clutches of the
appellant. During cross-examination, P.W.2 stated that nobody
was present when the victim disclosed the incident before her
and that she did not report the matter before the police station
on the date of disclosure of the incident by the victim. She
further stated that whatever she deposed in the Court was on
the basis of what she heard from the victim. Nothing has been
elicited from the cross-examination of P.W.2 by the defence to
disbelieve her evidence.
Thus, the evidence of the victim (P.W.1) and her
mother (P.W.2) substantiates the prosecution case that on
24.04.2014, the appellant attempted to commit rape on the
victim, who was a minor girl. It is correct that no doctor has
been examined by the prosecution but there is no material that
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the victim was sent for her medical examination. It cannot be
forgotten that the victim herself has stated that she did not
sustain any bodily injury on account of fall and she did not
sustain any injury on her both wrists. In view of the factual
scenario, in my humble view non-examination of the doctor is
not at all fatal to the prosecution.
The evidence of the victim right from the beginning
when she disclosed before her mother, which is admissible as res
gestae under section 6 of the Evidence Act and her version as
has been stated by P.W.2 in the first information report and her
164 Cr.P.C. statement so also the evidence in Court are
consistent and there is no such contradiction to disbelieve the
prosecution case. The evidence adduced by the defence in
support of the defence plea no way falsifies the prosecution case.
As per the school invitation card (Ext.A), the function was to
start at 4.30 p.m. on 24.04.2014 and the evidence of the victim
is that the occurrence took place on 24.04.2014 at 1.00 p.m.
Even D.W.1 has stated that he had seen the victim at about 4.00
p.m. to 5.00 p.m. at her house on 24.04.2014 which falsifies the
defence plea that as the victim visited a dance programme
without the permission of the appellant, she was assaulted.
Thus, the learned trial Court has rightly not given any weight on
such evidence. The investigation has also been conducted in
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accordance with law and nothing has been pointed out by the
learned counsel for the appellant to show that there was any
kind of irregularity or illegality in the investigation.
9. No doubt the occurrence took place on 24.04.2014
and the matter was reported on 27.04.2014, but it appears that
the victim disclosed before her mother about the occurrence on
25.04.2014. In view of the relationship between the victim, the
informant and the appellant and the nature of accusation against
the appellant, in my humble view, it cannot be said that delay in
lodging the first information report has got any impact on the
truthfulness on the prosecution case as in a case of such nature,
delay is a normal phenomenon.
In view of the aforesaid discussions, I am of the
humble view that the learned trial Court has rightly found the
appellant guilty under sections 376(2)(f)/511 of the Indian Penal
Code so also sections 6/18 of the POCSO Act. However, the
learned trial Court seems to have imposed sentence for both the
offences i.e. under sections 376(2)(f)/511 of the Indian Penal
Code so also sections 6/18 of the POCSO Act, which is not
permissible in view of section 42 of the POCSO Act. Accordingly,
the sentence of R.I. for ten years, which has been imposed for
the offence under sections 376(2)(f)/511 of the Indian Penal
Code by the learned trial Court is maintained.
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Accordingly, the Criminal Appeal stands dismissed.
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, Kandhamal, Phulbani 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,
Kandhamal, Phulbani for compliance.
Trial Court record with a copy of this judgment be
communicated to the concerned Court forthwith for information
and necessary action.
...............................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 29th November 2021/RKMishra
