Orissa High Court
Rabi Munda vs State Of Odisha on 13 September, 2021
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 12 OF 2018
From judgment and order dated 10.11.2017 passed by the
Additional Sessions Judge -cum- Special Judge, Keonjhar in
Special Case No.185/61 of 2016-14.
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Rabi Munda ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Chittaranjan Sahu
For Respondent: - Mr. D.K. Pani
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: 02.09.2021 Date of Judgment: 13.09.2021
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S.K. SAHOO, J. The appellant Rabi Munda faced trial in the Court of
learned Additional Sessions Judge -cum- Special Judge, Keonjhar
in Special Case No.185/61 of 2016-14 for commission of offences
punishable under section 376(2)(i) of the Indian Penal Code and
section 4 of the Protection of Children from Sexual Offences Act,
// 2 //
2012 (hereafter referred to as 'POCSO Act') on the accusation
that he committed rape on the victim, a girl aged about twelve
years on 02.08.2014 at about 12 noon in Chiragunidhoda forest
at village Uchumadihi under Nayakote police station in the
district of Keonjhar.
The learned trial Court vide impugned judgment and
order dated 10.11.2017 found the appellant guilty of the
offences charged and sentenced him to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.5,000/-
(rupees five thousand), in default, to undergo further rigorous
imprisonment for one year for the offence under section
376(2)(i) of the Indian Penal Code and he was further sentenced
to undergo rigorous imprisonment for seven years and to pay a
fine of Rs.3,000/- (rupees three thousand), in default, to
undergo further rigorous imprisonment for one year for the
offence under section 4 of the POCSO Act and both the
sentences were directed to run concurrently.
2. The prosecution case, as per the first information
report lodged by the father of the victim, namely, Shyama
Sundar Majhi (P.W.6), in short, is that on 02.08.2014 at about
12 noon, while the victim (P.W.4), who was a minor girl aged
about twelve years had been to nearby Chiragunidhoda forest for
// 3 //
grazing goats and she was grazing goats, at that time, the
appellant suddenly came near the victim finding her alone, made
her lie on the ground, torn her frock and undergarments and
forcibly committed rape on her. The victim (P.W.4) raised hullah
and on hearing her hullah, when one Sabita Barik (P.W.2) and
others who were working in the nearby cultivable fields rushed to
the spot, on seeing them, the appellant fled away. The victim
was feeling pain on her private parts.
The victim (P.W.4) narrated about the occurrence
before her brother Ganesh, who in turn intimated the same to
his father (P.W.6) and his mother (P.W.7) over phone. After the
parents of the victim returned, they came to know about the
occurrence from the victim. Since it was late night, on the next
day i.e. on 03.08.2014 P.W.6 came to Nayakote police station in
the district of Keonjhar and lodged the written report which was
scribed by one Mangulu Palei (P.W.1) of village Dudhapasi as per
his instruction, who read over and explained the report to P.W.6
and after he found it to be correct, he signed on the report.
3. P.W.10 Rashmi Ranjan Dash, who was the Sub-
Inspector of police of Nayakote police station and also in-charge
of I.I.C. in his absence, on receipt of the written report from
P.W.6, registered the same as F.I.R. (Ext.1) in Nayakote P.S.
// 4 //
Case No.34 dated 03.08.2014 under section 376 of the Indian
Penal Code and section 4 of the POCSO Act against the
appellant. He took up investigation of the case and during course
of investigation, he examined the informant (P.W.6), the victim
(P.W.4) and others. He proceeded to the spot and prepared the
spot map (Ext.7). The victim was sent to District Headquarters
Hospital, Keonjhar for medical examination along with her
wearing apparels for examination. On 04.08.2014, he seized the
wearing apparels of the victim and prepared the seizure list vide
Ext.8. On the same day, he made prayer for recording of
statement of the victim under section 164 Cr.P.C. and
accordingly, the same was recorded by the Magistrate on
05.08.2014. The appellant was arrested on 04.08.2014 and on
the next day i.e. on 05.08.2014, he was sent for medical
examination to C.H.C., Banspal and then forwarded to the Court
on the same day. On 08.08.2014, the I.O. (P.W.10) received the
medical examination report of the appellant and on 13.08.2014
he received the medical examination report of the victim. He
seized three numbers of sealed vials containing biological sample
of the appellant, wearing apparels of the appellant and the
command certificate as per seizure list vide Ext.9. The
Investigating Officer visited the school where the victim had
// 5 //
taken her admission in Standard-I and seized the school
admission register from the Headmaster as per seizure list vide
Ext.11, which reflected the date of birth of the victim to be
15.04.2005. The school admission register was handed over to
the Headmaster of the school on executing zimanama vide Ext.3.
The Investigating Officer sent the material objects to the
Director, State Forensic Science Laboratory, Rasulgarh,
Bhubaneswar for chemical examination through Court. On
02.09.2014, as per the order of his superior, P.W.10 handed
over the charge of investigation of the case to Mr. B.K. Bihari
(P.W.8), Inspector in-charge of Nayakote police station, who re-
examined the victim, her parents and other witnesses. On
29.09.2014, on completion of investigation, P.W.10 submitted
charge sheet against the appellant under section 376(2)(i) of the
Indian Penal Code read with section 4 of the POCSO Act.
4. After submission of charge sheet, the leaned Special
Judge, Keonjhr framed the charges against the appellant on
25.09.2015 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.
// 6 //
5. The defence plea of the appellant is one of denial and
it is pleaded that he had been falsely implicated in the case.
6. During course of trial, in order to prove its case, the
prosecution has examined as many as ten witnesses.
P.W.1 Mangulu Palei was the scribe of the F.I.R.
(Ext.1).
P.W.2 Sabita Barik is a post-occurrence witness and
she has stated that while she was working in a nearby field, on
hearing the cries of a girl, she along with others came there and
found the victim was present there. She further stated that she
had not seen anything else for which she was declared hostile by
the prosecution.
P.W.3 Dr. Nibedita Nayak, who was working as
Medical Officer, District Headquarters Hospital, Keonjhar
examined the victim (P.W.4) on police requisition and proved the
medical examination report vide Ext.2.
P.W.4 is the victim, who supported the prosecution
case and stated about the commission of rape on her by the
appellant.
P.W.5 Kartikeswar Mahanta was the Headmaster of
the school, where the victim was prosecuting her studies and he
is a witness to the seizure of school admission register vide
// 7 //
seizure list Ext.4 and he took zima of that register vide
zimanama (Ext.3).
P.W.6 Shyam Sundar Majhi is the father of the
victim, who is the informant of the case.
P.W.7 Basanti Majhi is the mother of the victim, who
stated that after enquiring about the matter from the victim, she
informed the matter to her husband (P.W.6).
P.W.8 Bijay Kumar Bihari was the Investigating
Officer of the case, who submitted charge sheet.
P.W.9 Dr. Rati Ranjan Mohanta was working as the
Medical Officer, Banspal C.H.C., who medically examined the
appellant on police requisition and noticed one injury on the ring
finger of left hand of the appellant and proved the medical
examination report vide Ext.6.
P.W.10 Rashmi Ranjan Dash, the S.I. of Police of
Nayakote Police Station, was the initial Investigating Officer of
the case.
The prosecution exhibited thirteen numbers of
documents. Ext.1 is the F.I.R., Ext.2 is the medical examination
report of the victim, Ext.3 is the zimanama, Ext.4 is the entry in
the school admission register in Folio no.3 and sl. no.3/2058
dated 12.04.2011, Ext.5 is the 164 Cr.P.C. statement of the
// 8 //
victim, Ext.6 is the medical examination report of the appellant,
Ext.7 is the spot map, Exts.8, 9 and 11 are the seizure lists,
Ext.10 is the 164 Cr.P.C. statement of the victim, Ext.12 is the
forwarding report for chemical examination and Ext.13 is the
command certificate.
No witness was examined on behalf of the defence.
7. The learned trial Court on analyzing the oral as well
as documentary evidence on record, particularly the entry
relating to the date of birth of the victim in the school admission
register and in view of Rule 12(3)(b) of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 (hereafter referred to as
'2007 Rules') and the ratio laid down by the Hon'ble Supreme
Court in the case of State of Madhya Pradesh -Vrs.- Anoop
Singh reported in (2015) 7 Supreme Court Cases 773 has
been pleased to hold that the age of the victim was below twelve
years at the time of occurrence. The learned trial Court accepted
the evidence of the prosecutrix that she was ravished by the
appellant and that her evidence has remained unchallenged. It
was further held that the evidence of the father (P.W.6) and
mother (P.W.7) of the victim corroborated the evidence of the
victim relating to the occurrence. It is further held taking into
account the evidence of the Medical Officer (P.W.9) who
// 9 //
examined the appellant and opined that the appellant was found
capable of having sexual intercourse and that there was an
injury found on the ring finger on his left hand, that the
prosecution has successfully established the charges under
section 376(2)(i) and section 4 of the POCSO Act against the
appellant.
8. Mr. Chittaranjan Sahu, learned counsel for the
appellant submitted that the prosecution has not adduced any
clinching evidence to show that the victim was aged about twelve
years at the time of occurrence and the conclusion arrived at by
the learned trial Court in that respect is faulty. The evidence of
the victim relating to commission of rape on her is not getting
corroboration from the evidence of the doctor (P.W.3), who
examined her on the next day of the occurrence. Highlighting
that the imposition of sentence by the learned trial Court both for
the offence under section 376(2)(i) of the Indian Penal Code as
well as section 4 of the POCSO Act is impermissible in view of
section 42 of the POCSO Act, he urged that benefit of doubt
should be extended in favour of the appellant.
Mr. D.K. Pani, learned Additional Standing Counsel
for the State, on the other hand, supported the impugned
judgment and contended that on the basis of the entry made in
// 10 //
the school admission register, it is apparent that the victim was
below twelve years of age at the time of occurrence, which has
been rightly held by the learned trial Court. He argued that even
if no birth certificate has been proved, but the entry in the school
admission register cannot be overlooked and when not only the
victim but her parents have consistently stated that at the time
of occurrence the age of the victim was below twelve years and
nothing substantial has been brought out in the cross-
examination to disbelieve such evidence, no fault can be found
with the conclusions arrived at by the learned trial Court. He
further argued that the victim has categorically stated about the
commission of rape on her by the appellant while she had been
to graze goats in the forest area and after the occurrence, she
immediately disclosed about the same before her brother as well
as her mother and there has been prompt lodging of the first
information report and in such a scenario, even though the
medical examination report indicated that there was no sign and
symptoms of recent sexual intercourse found on her genitalia, it
cannot be a ground to discard the prosecution case as the
medical evidence is merely an opinion of the expert. The learned
counsel further argued that even though the learned trial Court
should not have sentenced the appellant both for the offence
// 11 //
under section 376(2)(i) of the Indian Penal Code and section 4 of
POCSO Act in view of the provision under section 42 of the
POCSO Act, but the higher punishment prescribed for the offence
under section 376(2)(i) of the Indian Penal Code is to be taken
into account, which prescribes the minimum punishment for ten
years and therefore, the appeal should be dismissed.
9. Let me first discuss the evidence on record relating
to the age of the victim at the time of occurrence and whether
the prosecution has been able to prove that the prosecutrix was
a child as per section 2(d) of the POCSO Act and more
particularly she was below sixteen years of age at the time of
incident.
In the case of Anoop Singh (supra), the Hon'ble
Supreme Court considering Rule 12(3) of 2007 Rules held that
the birth certificate and the middle school certificate can be used
for determining the age of the prosecutrix as per Rule 12(3)(b).
It was further held that the High Court should have relied firstly
on the documents as stipulated under Rule 12(3)(b) and only in
its absence, the medical opinion should have been sought for.
The learned trial Court has followed Rule 12(3)(b) of
2007 Rules and relied upon the admission register of the victim
// 12 //
to hold that the age of the victim was below twelve years at the
time of occurrence.
Rule 12 of 2007 Rules deals with the procedure to be
followed in the determination of age. Rule 12(3)(a) gives
topmost preference to the matriculation or equivalent certificate
in that respect and in its absence, the date of birth certificate
from the school first attended other than a play school and if the
same is also not available, the birth certificate given by a
corporation or a municipal authority or a panchayat can be taken
into account.
Rule 12(3)(b) of the 2007 Rules states, inter alia,
that only in absence of either (i), (ii) or (iii) of clause (a), the
medical opinion will be sought for from a duly constituted
Medical Board, which would declare the age of the juvenile or
child. In case, the exact assessment of age cannot be done, the
Court for the reasons to be recorded, if consider necessary, give
benefit to the child or juvenile by considering his/her age on
lower side within the margin of one year.
In the case in hand, when the learned trial Court has
not sought for the medical opinion from a duly constituted
Medical Board to determine the age of the victim, it should not
have mentioned that following Rule 12(3)(b) of 2007, he came
// 13 //
to determine the age. On the other hand, the learned trial Court
has relied upon the entry made in the school admission register
which comes within clause (a)(ii)of Rule 12(3). Thus, the finding
is quite confusing.
The victim being examined as P.W.4 has stated her
age to be twelve years as on the date of deposition, which was
recorded on 02.12.2015. The occurrence in question stated to
have taken place on 02.08.2014. However, in the cross-
examination, the victim stated that she could not state her date
of birth or her exact age. However, she stated that she was
admitted in the school and was reading for some days.
The father of the victim being examined as P.W.6
has also stated that at the time of occurrence, her daughter was
twelve years of age but in the cross-examination, he stated that
at the time of admission of the victim, he had not given the birth
certificate, but stated about her date of birth on guess work. He
denied the suggestion that the victim was aged about twenty two
to twenty three years.
The mother of the victim being examined as P.W.7
has also stated that the age of the victim was twelve years at
the time of occurrence. In the cross-examination, she however
stated that she had not prepared the birth certificate or
// 14 //
horoscope of her children and she was telling the age of her
children on assumption, but it is almost correct. She stated that
at the time of admission of the victim in the school, they stated
about her age on assumption.
The Headmaster of the school where the victim had
taken admission was examined as P.W.5 and he proved the
entry made in the school admission register relating to the date
of birth of the victim, which was 15.04.2005. He also stated that
no horoscope or birth certificate of the student was filed at the
time of admission. However, he stated that the victim studied in
the school for one year and thereafter, she did not attend the
school and on 08.04.2014, T.C. was issued in her favour and
that he could not say whether the date of birth of the victim
which was recorded as 15.04.2005 in the school admission
register on the basis of the statement of her father was correct
or not.
The doctor (P.W.3), who examined the victim has
stated that she advised for ossification test to ascertain the age
of the victim. However, there is no material on record to show
that any ossification test was conducted to determine the age of
the victim.
// 15 //
The Investigating Officer (P.W.10) has stated that his
investigation did not reveal that basing on which document, the
date of birth of the victim was entered in the School Admission
Register. He admitted that he had not seized birth certificate or
horoscope of the victim as those documents were not available.
From the aforesaid evidence adduced by the
prosecution, it is apparent that no horoscope of the victim was
prepared and she was also having no birth certificate. The entry
of the school admission register relating to her date of birth was
made as per the version of her father (P.W.6), who himself
stated that he stated about the date of birth of the victim by
guesswork. The mother of the victim has also stated in the
similar manner. When no documentary evidence like horoscope
and birth certificate is available and the entry in the school
admission register has been made on the basis of guesswork or
assumption, in such a scenario, it is very difficult to give due
importance to such entry made in the school admission register
to determine the age of the victim. When the doctor (P.W.3)
advised for the ossification test to be conducted to ascertain the
age of the victim, it is quite strange that the Investigating Officer
took no step in that regard, which raises a question mark on the
fairness of investigation. It is the duty of the prosecution in a
// 16 //
case of this nature to prove the age of the victim and the Court
can take recourse to Rule 12(3) of 2007 Rules to determine the
age, as once the victim is found be a child or her age is found to
be below sixteen years at the time of occurrence, the
punishment prescribed for the offence is on a higher side. The
parents of the victim have given contradictory statements
relating to the age of their children. The mother of the victim,
who has been examined as P.W.7 has stated that the age her
elder son Ganesh would be twenty to twenty two years whereas
the father of the victim, who has been examined as P.W.6 has
stated that the age of the elder son Ganesh would be about
seventeen to eighteen years. Both of them have stated that the
victim was their third child and there is no evidence what was
the gap between the first child and the second child or the
second child and third child, who is the victim. The offence under
section 376(2)(i) of the Indian Penal Code, which was omitted by
Act 22 of 2018 with effect from 21.04.2018 prescribed
punishment for the commission of rape on a woman when she is
under sixteen years of age. Since no clinching evidence is
brought on record by the prosecution relating to the age of the
victim and her age has been stated by the relevant witnesses as
per their guesswork and even the school admission register entry
// 17 //
was made on assumption and the medical evidence is lacking, I
am of the humble view that it cannot be said that the
prosecution has successfully established that the victim was a
child as per the definition of the 'child' under section 2(b) of the
POCSO Act and that she was under the age of sixteen years at
the time of occurrence. The finding of the learned trial Court on
that score is found to be faulty.
10. Law is well settled that in a case of rape, onus is
always on the prosecution to prove affirmatively each ingredients
of the offence like other criminal cases. The prosecution must
discharge this burden of proof to bring home the guilt of the
accused and this onus never shifts. Courts while trying an
accused on the charge of rape, must deal with the case with
utmost sensitivity, examining the broader probabilities of a case
and it should not be swayed by minor contradictions and
discrepancies in appreciation of evidence of the witnesses which
are not of a substantial character. Conviction for an offence of
rape can be based on the sole testimony of the prosecutrix
corroborated by medical evidence and other circumstantial
evidence such as the report of chemical examination, scientific
examination etc., if the same is found to be natural and
trustworthy and there is a ring of truth in it. There is no legal
// 18 //
compulsion to look for corroboration to the testimony of
prosecutrix unless the evidence of the victim suffers from serious
infirmities. However, if the Court of facts finds it difficult to
accept the version of the prosecutrix on its face value, it may
search for evidence, direct or circumstantial, which would lend
assurance to her testimony. On the anvil of the above principles,
let me now test the version of the prosecutrix as depicted in the
prosecution case.
The victim stated in her evidence that while she was
grazing goats in the forest near her village, during noon hours,
the appellant came from her backside, pressed her mouth,
forcibly made her lie on the ground and pressed her for which
she could not escape from his clutches and then the appellant
disrobed her and also put off his own dress and then forcibly
committed rape on her, for which she felt pain and raised cries
and on hearing her cries, the persons engaged in the nearby
cultivable land came near her and on seeing them, the appellant
escaped.
P.W.2, who was examined by the prosecution to
corroborate the version of the victim, has stated that while she
was working in the cultivable land, on hearing cries of a girl from
the nearby field, she came there and found the victim present
// 19 //
there and that she had not seen anything else. The witness was
declared hostile by the prosecution. In the cross-examination by
the defence, she stated that it was a rainy day and it was raining
and some sheep were grazing near the place where the victim
was present and that place was visible from the land where they
were working. She further stated that she had no direct
knowledge about the occurrence and the victim had also not
disclosed anything before her.
The victim has stated that there are houses at a little
distance from the spot and those houses are visible from the
spot and the cultivable lands are situated adjoining to the ditch
where she was grazing the goats. She further stated that the
occurrence took place on a rainy day and the road was muddy.
She further stated that on earlier occasion, the father of the
appellant had raised some dispute with her father regarding the
landed properties. She further stated that the appellant had
caught hold of her when he put off his dress and that the
appellant had penetrated his penis in her vagina and she had
bleeding for such act of the appellant. The defence counsel
suggested to the victim in her cross-examination that she had
not stated before the Investigating Officer that during the noon
hours, the appellant came from her backside, pressed her mouth
// 20 //
and that he forcibly made her lie on the ground and pressed her
for which she could not escape from his clutches and thereafter
the appellant forcibly committed rape on her, but most
peculiarly, no such confrontation has been proved through the
Investigating Officer as required under section 145 of the
Evidence Act. Under section 145 of Evidence Act, when it is
intended to contradict the witness by his previous statement
reduced into writing by the Investigating Officer, the attention of
the witness is drawn to that part, which must be reflected in his
cross-examination by reproducing it. If the witness admits the
part intended to contradict him, it stands proved and there is no
need for further proof of contradiction and it will be read while
appreciating the evidence. If however the witness denies having
made that part of the statement, his attention must be drawn to
that statement and must be mentioned in the deposition. By this
process, the contradiction is merely bright on record, but it is yet
to be proved. Thereafter, when the Investigating Officer is
examined in the Court, his attention should be drawn to the
passage marked for the purpose of contradiction, it will then be
proved in the deposition of the Investigating Officer, who, again
by referring to the police statement, will depose about the
witness having made that statement. The Court cannot suo motu
// 21 //
make use of statements made to police not proved in compliance
with section 145 of Evidence Act. (Ref:-(2015) 9 Supreme
Court Cases 588, V.K. Mishra -Vrs.- State of Uttarkhand).
On verification of the statement of the victim (P.W.4) recorded
by the police just to see whether there is in fact any such
omission made by the victim, it is found that most part of the
confronted statement is available in her statement before police.
When such type of confrontation was made to the victim by the
defence counsel at the time of cross-examination that she had
not stated about a particular aspect of the occurrence before
police as she has stated in the examination-in-chief, it was
nonetheless the duty of the Public Prosecutor as well as the
learned trial Court to verify the statement recorded under section
161 Cr.P.C. immediately and the Public Prosecutor has a duty to
object, if there is no such contradiction as pointed out by the
defence. The learned trial Court also cannot act as a silent
spectator or a mute observer when it presides over a trial,
otherwise the sanctity of the proceeding would be lost.
The evidence of the victim relating to her
commission of rape is no doubt getting corroboration from the
statements of her parents. The mother of the victim being
examined as P.W.7 has stated that she enquired about the
// 22 //
matter from her daughter, who stated that while she was grazing
the goats at Chirigunidhoda forest, the appellant committed rape
on her and she informed the matter to her husband (P.W.6) and
on the next day, the matter was reported to the police. P.W.6
has also stated that P.W.7 discussed the matter with the victim,
who narrated about the incident before her, which she conveyed
to him and since it was late evening, on the next day, he
reported the matter before the police, which was scribed by
Manguli Palei (P.W.1). P.W.1 has stated that he scribed the F.I.R.
as per the instruction of P.W.6 and read over and explained the
same to him, who admitted the same to be correct and then he
signed thereon. The F.I.R. has been marked as Ext.1. In view of
the timing of lodging of the F.I.R., it can be said that there is
absolutely no delay in the lodging of the F.I.R.
The doctor (P.W.3), who examined the victim on
03.08.2014 found no bodily injury on her person suggestive of
forcible sexual intercourse and there was no sign or symptoms of
recent sexual intercourse on her genitalia and she further
observed that the hymen of the victim did not even admit tip of
little finger for which it was not practicable to collect the vaginal
swab. P.W.3 further stated in the cross-examination that when a
girl aged about twelve years is forcibly ravished by a boy of
// 23 //
twenty two years, there is possibility of sustaining injury on her
private parts.
At this juncture, it is to be seen whether the
evidence of the victim relating to the commission of rape on her
by the appellant, which is also getting corroboration from the
version of her parents, is to be discarded in toto merely because
there is no corroboration from the medical evidence. In the case
of Sham Singh -Vrs.- The State of Haryana, reported in
(2018) 72 Orissa Criminal Reports (SC) 221, where the
medical examination of the victim indicated that she had
sustained an injury on the left side of her forehead and the
doctor opined that the possibility of sexual assault on the victim
cannot be ruled out though it was not specified whether the
sexual assault was in the recent past, the Hon'ble Supreme
Court held that the trial Court and the High Court convicted the
appellant merely on conjectures and surmises and not on legally
acceptable evidence and such assumptions are not corroborated
by any reliable evidence and the medical evidence did not
support the case of the prosecution relating to the commission of
rape and accordingly, the appellant was acquitted.
In the case in hand, the victim has stated that the
appellant had penetrated his penis in her vagina and that she
// 24 //
had bleeding for such act of the appellant. The evidence of the
doctor, who examined the victim on the very next day of
occurrence, is that there was no sign or symptom of recent
sexual intercourse on her genitalia and that the hymen of the
victim did not even admit tip of the little finger for which it was
not practicable to collect the vaginal swab. According to the
victim, it was a rainy day and the place was muddy and the
appellant disrobed her and laid her on the ground and then
forcibly committed rape on her. Had that been the state of
affairs, the medical examination report of the victim would have
been otherwise. Therefore, I am of the humble view that when
the medical evidence completely negatives the accusation of
rape on the victim, it is very difficult to accept her version as
truthful and reliable.
11. The doctor (P.W.9) who has examined the appellant
on 05.08.2014 though stated that the appellant was capable of
committing sexual intercourse and there was no sign or
symptoms of recent sexual intercourse, but most peculiarly he
stated that he found an injury on the ring finger of the left hand
of the appellant and opined that it suggested forcible sexual
intercourse, though in the cross-examination, he admitted that
the injury found on the finger of the appellant was possible to be
// 25 //
caused during assault or any kind of force being applied thereto.
Therefore, the statement of the doctor that the injury on the ring
finger of the left hand of the appellant is suggestive of forcible
sexual intercourse is very difficult to be accepted.
12. The Investigating Officer (P.W.10) visited the spot on
03.08.2014 and prepared the spot map (Ext.7) which was the
next day of occurrence and he stated that he had not noticed
any mark of violence at the spot during his spot visit and that
the paddy field is about twenty five meters away from the
occurrence spot. He has not mentioned any mud was sticking on
the wearing apparels of the victim at the time of its seizure.
Even though the wearing apparels of the victim and
the appellant along with sealed glass bottles containing the
semen and pubic hair of the appellant were sent for chemical
examination, but for reasons best known to the prosecution, no
chemical examination report has been proved during trial.
13. In view of the foregoing discussions, when the
prosecution has not proved that the victim was a child at the
time of occurrence and specifically she was under the age of
sixteen years, when the oral evidence of the victim relating to
the commission of rape on her by the appellant is not getting
corroboration from the medical evidence even though she was
// 26 //
examined on the very next day of the occurrence and in view of
the other doubtful features and infirmities in the prosecution
evidence which have already been discussed, I am of the humble
view that the impugned judgment and order of conviction cannot
be sustained in the eye of law and accordingly, the same is
hereby set aside.
The appellant is acquitted of the charges under
section 376(2)(i) of the Indian Penal Code and section 4 of
POCSO Act.
14. Before parting with the case, I would like to put
emphasis on the sentencing part of the impugned judgment. In
view of the special provision under section 42 of the POCSO Act,
though the Special Judge can prosecute and convict an accused,
both under section 376(2)(i) of the Indian Penal Code as well as
section 4 of the POCSO Act, but so far as the punishment part is
concerned, in view of section 42 of the POCSO Act, the Court has
to choose from the two which would obviously carry punishment
of greater degree and therefore, the imposition of punishment
for both the offences i.e. under section 376(2)(i) of the Indian
Penal Code and section 4 of the POCSO Act by the learned trial
Court, is nothing but a legal error.
// 27 //
15. In the result, the appeal is allowed. The appellant be
set at liberty forthwith, if his detention is not required in any
other case.
16. It is made clear that while convicting the appellant,
the learned trial Court has passed an order that the victim
should be compensated under the Odisha Victim Compensation
Scheme, 2012 which was enacted in pursuance to section 357-A
of Cr.P.C. and recommended the case to the District Legal
Services Authority, Keonjhar to provide financial assistance to
the victim. Even though an order of acquittal has been passed in
this Criminal Appeal, if the victim has already received
compensation, the District Legal Services Authority shall not take
any step to recover such compensation amount merely because
of this acquittal order.
Let the trial Court record with a copy of this
judgment be communicated to the learned trial Court forthwith
for information and necessary action.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 13th September 2021/RKMishra/PKSahoo
