Orissa High Court
Siba Sahoo vs State Of Odisha on 2 August, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.27 of 2020
From judgment and order dated 07.01.2020 passed by the
Special Judge (POCSO) -cum- Second Addl. Sessions Judge,
Berhampur, Ganjam in G.R. Case No.77 of 2014.
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Siba Sahoo ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Manoranjan Padhi
Advocate
For Respondent: - Mr. Manoranjan Mishra
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 and Judgment: 02.08.2023
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S.K. SAHOO, J. The appellant Siba Sahoo faced the trial in the Court
of learned Special Judge (POCSO) -cum- Second Addl. Sessions
Judge, Berhampur, Ganjam in G.R. Case No.77 of 2014 for
commission of offence under section 376(2)(i) of the Indian
Penal Code (hereinafter 'I.P.C.') and section 6 of the Protection
// 2 //
of Children from Sexual Offences Act, 2012 (hereinafter 'POCSO
Act') on the accusation that on 29.08.2014 at about 7.30 p.m. at
Puruna Bazar Street, Bhanjanagar, he committed rape on the
victim, who was under sixteen years of age and also committed
aggravated penetrative sexual assault on the victim.
Learned trial Court vide judgment and order dated
07.01.2020 found the appellant guilty of both the charges and
sentenced him to undergo rigorous imprisonment for a period of
fifteen years and to pay a fine of Rs.10,000/- (rupees ten
thousand), in default, to undergo rigorous imprisonment for a
further period of six months for the offence under section
376(2)(i) of the I.P.C. No separate sentence was awarded for the
offence under section 6 of the POCSO Act in the view of section
42 of the said Act.
One Simanchala Behera (P.W.2), the father of the
victim (P.W.1) lodged the first information report (hereinafter
'F.I.R.') on 30.08.2014 before the I.I.C., Bhanjanagar Police
Station stating therein that on 29.08.2014, the victim, who is his
minor daughter and aged about six years, had been to one shop
situated at Puruna Bazar Sahi, which was styled as Jaga Balia
shop, for purchasing milk and the appellant called the victim on
the pretext of giving her chocolates and committed rape on her
// 3 //
and also assaulted her. The victim came back home crying and
narrated the incident before her family members.
On receipt of such F.I.R., Bhanjanagar P.S. Case No.
237 dated 30.08.2014 was registered under section 376 of the
I.P.C. and section 4 of the POCSO Act. The I.I.C., Bhanjanagar
Police Station directed Shradhanjali Subudhi (P.W.16), Sub-
Inspector of Police attached to Bhanjanagar police station to take
up investigation of the case and accordingly, P.W.16 examined
the informant, recorded the statements of witnesses and she
also seized the wearing apparels of the victim, which she was
wearing at the time of occurrence being produced by the
informant as per seizure list vide Ext.3. The victim was sent for
medical examination to S.D. Hospital, Bhanjanagar on police
requisition. The I.O. examined the grandmother of the victim,
prepared the spot map, arrested the appellant and sent him to
S.D. Hospital, Bhanjanagar for his medical examination. She also
seized the biological samples of the appellant and the victim
being produced by the escorting police constables, seized the
wearing apparels of the appellant as per seizure list vide Ext.7.
The statement of the victim was recorded under section 164 of
Cr.P.C. on the prayer of the I.O. She also received the medical
examination reports and the exhibits were forwarded to the
// 4 //
R.F.S.L., Berhampur for chemical analysis and the chemical
examination report (Ext.12) was received and on completion of
the investigation, charge sheet was submitted under section
376(2)(i) of the I.P.C. and section 6 of the POCSO Act.
Witnesses & Exhibits:
During course of the trial, in order to prove its case,
the prosecution examined as many as seventeen witnesses.
P.W.1 is the victim. She supported the prosecution
case and stated about commission of rape on her by the
appellant.
P.W.2 Simanchala Behera is the father of the victim
and he is also the informant in this case who lodged the F.I.R.
vide Ext.2. He stated about the disclosure made by the victim
about the commission of sexual assault on her by the appellant.
P.W.3 Anitarani Behera is the mother of the victim
and she supported the prosecution case and stated to have
noticed white stains over her panty and she also stated about
disclosure made by the victim about the occurrence.
P.W.4 Dr. Resmarani Tripathy was working as Asst.
Surgeon, Sub-Divisional Hospital, Bhanjanagar. She medically
examined the victim on police requisition and she proved her
report vide Ext.4/1.
// 5 //
P.W.5 is the grandmother of the victim (P.W.1) who
supported the prosecution case and stated about the disclosure
made by the victim about commission of rape on her by the
appellant.
P.W.6 Susil Kumar Behera is the brother-in-law of
the informant and stated about the disclosure made by the
victim regarding commission of rape on her by the appellant.
The evidences of P.W.7 to P.W.12 are no way
relevant for the case.
P.W.13 Sibaram Das was posted as an Assistant Sub-
Inspector of Police at the Bhanjanagar Police Station. He was a
witness to seizure of blue colour panty of the victim which was
seized by the I.O. vide seizure list Ext.3 and one Moser Baer
DVD which was seized vide seizure list Ext.5.
P.W.14 Hrushikesha Badatia was also the Assistant
Sub-Inspector of Police posted at the Bhanjanagar Police Station
who stated about the seizure of biological samples of the
appellant and the victim as per seizure list Ext.6 and also the
wearing apparels of the appellant vide seizure list Ext.7.
P.W.15 Brundaban Chandan Gouda was posted as O
& G Specialist at Sub-Divisional Hospital, Bhanjanagar. He
examined the appellant on police requisition and opined that
// 6 //
appellant was capable of having sexual intercourse. He proved
his report Ext.8/2.
P.W.16 Shradhanjali Subudhi was posted as the Sub-
Inspector of Police at the Bhanjanagar Police Station and she is
the I.O. of the case.
P.W.17 Saraga Kumar Satapathy was the
Headmaster of St. Xavier's High School, Bhanjanagar who stated
about the seizure of school admission register by the I.O.
wherein the date of birth of the victim was mentioned to be
14.11.2008.
The prosecution exhibited thirteen numbers of
documents. Ext.1 is the statement of the victim recorded under
section 164 of the Cr.P.C., Ext.2 is the plain paper F.I.R., Ext.3 is
the seizure list, Ext.4/1 is the medical examination report of the
victim, Ext.5, Ext.6 and Ext.7 are the seizure lists, Ext.8 is the
consent memo, Ext.9 is the spot map, Ext.10 is the command
certificate, Ext.11 is the forwarding letter of learned S.D.J.M.,
Berhampur, Ext.12 is the chemical examination report and
Ext.13 is the school admission register.
The defence plea of the appellant is one of complete
denial.
// 7 //
Finding of the Trial Court:
The learned trial Court, after assessing the oral and
documentary evidence on record, has been pleased to hold that
the victim was below 16 years of age at the time of occurrence
and hence, she was a 'child' within the meaning of section 2(d)
of the POCSO Act. Learned trial Court further held that the
evidence of the victim relating to rape being committed on her is
getting support from the prosecution witnesses and particularly,
her family members and it could not be assailed in any manner
by the appellant. Learned trial Court further held that the
prosecution has satisfactorily established its case that the
appellant committed rape on P.W.1 (victim) and found him guilty
under section 376(2)(i) of the I.P.C. and section 6 of the POCSO
Act.
Contentions of Parties:
Mr. Manoranjan Padhi, learned counsel for the
appellant contended that it is the prosecution case that the
victim had been to the tea stall of one Jaga to bring milk when
and the appellant approached her to give chocolates and told her
to accompany him and forcibly took her to his shop and
committed 'kharap kama' with her but Jaga has not been
examined by the prosecution. It is further argued that though
// 8 //
the victim came to her house and disclosed before her family
members about the occurrence and also being examined as
P.W.1 stated that the appellant removed her panty and
committed wrong with her (SE MO SAHITA KHARAPA KAMA
KALA), unless it is brought on record by clinching evidence what
was the actual overt act committed on with her by the appellant,
it is very difficult to come to the conclusion that there has been
either 'rape' or 'aggravated penetrative sexual assault' on the
victim. It is further argued that though the panty of the victim
was seized during course of investigation and it was sent for
chemical examination but the chemical examination report
(Ext.12) indicates that the panty did not contain stain of either
blood or semen. It is further argued that the mother of the
victim stated that there were white stains over the panty of the
victim; however, had that been so then the panty would have
contained the stains of blood or semen. Therefore, it falsifies that
there was any kind of white stain on the panty of the victim.
Learned counsel further submitted that minimum sentence
prescribed for the offence under section 376(2)(i) of the Indian
Penal Code is ten years and in view of the poverty, poor socio-
economic condition and undeserved adversity in the life of the
appellant, when the appellant has preferred this Jail Criminal
// 9 //
Appeal and when the nature of the overt act committed by the
appellant with the victim is not clear, the sentence should be
reduced from fifteen years to minimum sentence of ten years,
especially having sympathetic consideration for the fact that the
appellant is in judicial custody since 30.08.2014, if at all this
Court upholds the conviction of the appellant.
Mr. Manoranjan Mishra, learned counsel for the State
on the other hand supported the impugned judgment and
submitted that not only the evidence of the victim is clear,
cogent and trustworthy but also from the evidence of the
Headmaster of the School, who proved the admission register, it
is established that the victim was six years of age at the time of
occurrence. The victim narrated the whole incident before her
family members immediately after the occurrence and her
parents and grandmother have also stated about such
disclosure. Learned counsel further argued that there was no
earthly reason for the victim, a girl aged about six to seven
years, to implicate the appellant falsely in a case of this nature
and her disclosure immediately after the occurrence is admissible
as res gestae under section 6 of the Evidence Act. It is further
argued that the doctor (P.W.4), who examined the victim on the
next day of occurrence, found that there was some white
// 10 //
discharge present on her vagina and the general appearance of
hymeneal opening was congested, inflamed and reddish and it
corroborates the evidence of the victim. Learned counsel for the
State further submitted that non-examination of the shop keeper
Jaga cannot be a factor to disbelieve the evidence of the victim
in a case of this nature. It is argued that the learned trial Court
is empowered under section 376(2)(i) of the I.P.C. to impose
punishment for life and therefore, it cannot be said that the
Court has committed any illegality in sentencing the appellant to
R.I. for fifteen years keeping in view the age of the victim and
the nature and gravity of the accusation and therefore, the
appeal being devoid of merit should be dismissed.
Age of the Victim:
Adverting to the contentions of the learned counsel
for the respective parties, let me first analyze the evidence on
record relating to the age of the victim. It appears from the
evidence of the victim that she stated her age to be eight years
when she deposed on 06.06.2016 and further stated that she
was a student of Standard-III at the time of deposition and the
occurrence took place when she was studying in Standard-II.
The learned trial Court has assessed the age of the victim to be
// 11 //
eight years and accordingly, reflected the same in the deposition
sheet.
P.W.17, the Headmaster of the school, where the
victim was prosecuting her studies, proved the school admission
register (Ext.13) wherein the date of birth of the victim was
mentioned to be 14.11.2008. He has denied the suggestion
made by the learned defence counsel that the date of birth entry
has been made in the school admission register without any
basis. In view of the settled position of law, the school admission
register entry is admissible under section 35 of the Evidence Act.
The defence has not brought any impeccable evidence of reliable
persons and contemporaneous documents like the date of birth
register to discard the entry in the school register. Since the
learned defence counsel has not challenged the age of the victim
when she was examined in Court as P.W.1 and in view of the
entry of date of birth of the victim in the school admission
register, she was aged about six years at the time of occurrence,
I am of the humble view that the finding of the learned trial
Court that the prosecutrix was less than sixteen years of age,
when she was made a victim of the lust of the appellant, is quite
justified.
// 12 //
Evidence of the victim whether acceptable:
The victim, being examined as P.W.1, was put some
questions by the learned trial Court to assess her level of
understanding. The learned trial Court recorded the questions
and also the answers given by the victim to those questions and
found that rational answers have been given by the victim to all
the questions and therefore, she was held to be a competent
witness to depose in the case.
The victim (P.W.1) stated that she was sent by her
mother (P.W.3) to bring milk from the tea stall of one Jaga and
she met an uncle who was standing at the said shop and was
purchasing something. He gave her two chocolates and told her
to accompany him and when she denied, the appellant forcibly
took her to the shop and by removing her panty committed
wrong with her (SE MO SAHITA KHARAPA KAMA KALA). Then the
appellant gave slaps on her face for which she cried. The victim
further stated that she returned her home crying and since the
appellant threatened her not to disclose the incident before her
mother, initially she did not tell her anything. However,
subsequently, she being asked disclosed the entire incident to
her mother. In the cross-examination, the victim has stated that
she had gone to Jaga tea stall several times prior to the
// 13 //
occurrence and that tea stall is near to her house. She further
stated that except the appellant, no other person was present at
Jaga tea stall. She also identified that Siba uncle (appellant) in
Court. Nothing has been elicited in her cross-examination to
disbelieve the evidence of this child witness.
Law is well settled that evidence of a child witness
must be evaluated very carefully and scrupulously, as a child
may be swayed away by what others tell her and can fall an easy
prey to tutoring. Evidence of a child witness is acceptable if
Court finds her competent after careful scrutiny of her evidence
and if that is found to be reliable and of good quality.
The position of law regarding admissibility of
evidence of child witnesses was precisely reiterated by this Court
recently in the case of Dilu Jojo -Vrs.- State of Odisha
reported in (2023) Supreme Court Cases OnLine Ori 4474,
wherein it was held as follows:
"Section 118 of the Evidence Act states that a
child is a competent witness provided that he
understands the questions put to him and is in a
position to give rational answers to such
questions. It is the duty of the Court while
assessing the evidence of a child witness to see
whether the child understands the duty of
speaking the truth. The Court should make
// 14 //
necessary examination of the child witness by
putting a few questions in order to find out
whether the witness is intelligent enough to
understand what he had seen and afterwards to
inform the Court thereof and also give his
opinion that why it thinks that the child is a
competent witness. The evidence of a child
witness should be scanned carefully and if no
flaws or infirmities are found therein then there
is no impediment in accepting his evidence."
In the case in hand, the learned trial Court, after
posing a few questions and recording answers of the victim
thereto, has arrived at a conclusion that the child is able to give
rational answers to all the questions and declared her as a
competent witness, before adverting to record of her evidence.
The testimony of the victim has remained unshaken and no
evidence has been brought out to suggest that she propagated
falsehood to foist a false case on the appellant.
The evidence of victim's mother (P.W.3) indicates
that the victim had gone to Jaga tea stall for purchasing milk and
the appellant offered her chocolates, took her inside his shop and
removed her panty. There were white stains over the panty of
her daughter and the appellant had threatened the victim not to
disclose anything against him before anybody. She further stated
// 15 //
that after the victim came home, she was in a state of panic
being threatened by the appellant. She stated to have noticed
white stains over the panty and on being asked, the victim
disclosed about the occurrence. Therefore, the evidence of the
victim gets corroboration from the evidence of P.W.3.
P.W.5, the grandmother of the victim stated that the
victim returned home crying and on being asked, she told that
the appellant did 'KHARAP KAMA' with her and she narrated the
incident before her in details. She disclosed that the appellant
took her inside the room, took off her panty despite her protest
and he also took off his own pant, made her lie on the floor and
he slept over her. The victim further told her that when she did
not put off her panty, the appellant physically assaulted her.
Therefore, not only before P.W.3 but also before P.W.5 there has
been disclosure as to what has been done by the appellant with
the victim. P.W.2, the father of the victim and P.W.6, the
brother-in-law of P.W.2 have also stated about the disclosure
made by the victim (P.W.1) implicating the appellant in her
sexual assault.
It is correct that the victim has simply stated that the
appellant did 'KHARAP KAMA' with her by removing her panty
and not stated in details what was the 'KHARAP KAMA' but in
// 16 //
view of the evidence of her mother (P.W.3) and grandmother
(P.W.5) before whom she disclosed about the occurrence in
details, it cannot be said that the appellant had not committed
any overt act with her which would attract either the ingredients
of the offence under section 376(2)(i) of the I.P.C. or section 6
of the POCSO Act.
The doctor (P.W.4) examined the victim on the very
next day of occurrence on police requisition and she found that
there was white discharge present on her vagina and general
appearance of hymeneal opening was congested, inflamed and
reddish. Of course P.W.4 found no sign of injury either on the
body or the private part of the victim. Therefore, the evidence of
the doctor (P.W.4) strengthens the prosecution case. The
appellant was also medically examined by the doctor (P.W.15),
who also opined that the appellant was capable of having sexual
intercourse.
The chemical examination report, marked as Ext.12,
no doubt indicates that the panty of the victim was having no
blood or no semen stains, however, small patches of human
semen were found on the jeans pant of the appellant, which was
seized during investigation.
// 17 //
In the statement recorded under section 313 of
the Cr.P.C., several questions have been put to the
appellant, but except telling that he has been falsely
implicated, no material evidence has been adduced on his
behalf as to why he would be falsely implicated in a case of
this nature by a young girl aged about six years. The
evidence of the victim (P.W.1), her parents (P.W.2 &
P.W.3), grandmother (P.W.5) and the doctor (P.W.4) clearly
prove the ingredients of the offence under section 376(2)(i)
of the I.P.C. and section 6 of the POCSO Act against the
appellant.
Conclusion:
In view of the age of the victim at the time of
occurrence which was six years and having regard to the
definition of 'aggravated penetrative sexual assault' under
section 5(m) of the POCSO Act which states that
commission of 'penetrative sexual assault' as defined under
section 3 of the POCSO Act on a child below twelve years
would attract the offence, the learned trial Court has rightly
convicted the appellant under section 6 of the POCSO Act so
// 18 //
also under section 376(2)(i) of the I.P.C.. It appears that
the minimum sentence provided for the offence under
section 376(2)(i) of the I.P.C. is ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life,
and he shall also be liable to fine.
In the case of Sunil Damodar Gaikwad -Vrs.-
State of Maharashtra reported in (2014) 1 Supreme
Court Cases 129 while holding that the Court must not
only look at the crime but also the offender and it must give
due consideration to the circumstances of the offender, the
Hon'ble Supreme Court has further held that poverty and
socio-economic condition can be considered as some of the
mitigating factors in addition to those indicated in the cases
of Bachhan Singh -Vrs.- State of Punjab reported in
(1980) 2 Supreme Court Cases 684 and Machhi Singh
& Others -Vrs.- State of Punjab reported in (1983) 3
Supreme Court Cases 470.
Also, in the case of Rabi S/O Ashok Ghumare
-Vrs.- State of Maharashtra reported in (2019) 9
Supreme Court Cases 622, the Hon'ble Apex Court has
// 19 //
held that socio-economic condition of the appellant as a
person below the poverty line, can also be considered as
one of the mitigating factors while weighing the aggravating
and mitigating factors. There is no dispute that the
appellant in this case is a below poverty line person which is
manifested from the fact that he has preferred this Jail
Criminal Appeal through the Prisoner Welfare Officer, Circle
Jail, Berhampur on account of his financial difficulty. The
case record does not indicate any criminal antecedent
against the appellant.
Considering the poor financial condition of the
appellant and in view of the aforesaid precedents of the
Hon'ble Supreme Court, the passage of time since the date
of occurrence, the period of detention in judicial custody
which is about nine years by now and the young age of the
appellant at the time of occurrence, I reduce the sentence
awarded to appellant from rigorous imprisonment for fifteen
years to rigorous imprisonment for ten years, which is the
minimum sentence prescribed for the offence under section
376(2)(i) of the Indian Penal Code. No separate sentence is
required to be passed under section 6 of the POCSO Act in
// 20 //
view of section 42 of the said Act, as rightly done by the
learned trial Court.
With the above modification of sentence, the
JCRLA stands dismissed.
Trial Court records with a copy of this judgment
be sent down to the concerned Court forthwith for
information.
Before parting with the case, I would like to put
on record my appreciation to Mr. Manoranjan Padhi, learned
counsel for rendering his valuable help and assistance
towards arriving at the decision above mentioned. The
learned counsel shall be entitled to his professional fees,
which is fixed at Rs.7,500/- (rupees seven thousand five
hundred only). This Court also appreciates the valuable help
and assistance provided by Mr. Manoranjan Mishra, learned
Additional Standing Counsel.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 2nd August 2023/Amit
Digitally signed
AMIT by AMIT KUMAR
KUMAR MOHANTY
Date:
MOHANTY 2023.08.10
18:14:16 +05'30'
