Orissa High Court
Tufan Marwadi @ Chundi vs State Of Odisha on 9 August, 2023
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Location: Orissa High Court, Cuttack
Date: 14-Aug-2023 19:40:12
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.61 of 2019
An appeal from judgment and order dated 26.06.2019 passed by
the Additional Sessions Judge -cum- Special Judge, Keonjhar in
Special Case No.45/69 of 2016-14.
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Tufan Marwadi @ Chundi ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Lalitendu Bhuyan
Advocate
For Respondent: - Mr. Arupananda Das
Addl. Govt. 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: 09.08.2023
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S.K. SAHOO, J. The appellant Tufan Marwadi @ Chundi faced trial in
the Court of learned Additional Sessions Judge -cum- Special
Jugde, Keonjhar in Special Case No.45/69 of 2016-14 for
commission of offences punishable under sections 366/376(2)(n)
of the Indian Penal Code (hereinafter 8I.P.C.9) read with section 6
of the Protection of Children from Sexual Offences Act, 2012
(hereinafter 8POCSO Act9) and section 3(1)(xii) of the Scheduled
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Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 (hereinafter 81989 Act9) on the accusation that on
11.08.2014 at about 8.00 p.m., he kidnapped the victim (P.W.3),
who is the minor daughter of the informant (P.W.1) and was
aged about twelve years, from her house with the intent that she
might be compelled to marry him against her will or might be
forced or seduced to illicit intercourse and that he committed
rape on the victim repeatedly from 11.08.2014 to 19.08.2014 at
Mahabura, Bankura jungle and committed aggravated
penetrative sexual assault on her and used force on the victim,
who belonged to a member of Scheduled Tribe (hereinafter
8S.T.9) community, with an intent to dishonour or outrage her
modesty.
The learned trial Court vide impugned judgment and
order dated 26th June 2019 though acquitted the appellant of the
charge under section 3(1)(xii) of the 1989 Act, but found him
guilty under sections 366/376(2)(n) of the I.P.C. and section 6 of
the POCSO Act and sentenced him to undergo R.I. for a period of
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 one
year for the offence under section 6 of the POCSO Act and
sentenced to undergo R.I. for five years and to pay a fine of
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Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for
a further period of six months for the offence under section 366
of the I.P.C. and no separate sentence was awarded for offence
under section 376(2)(n) of the I.P.C. in view of section 42 of the
POCSO Act and all the substantive sentences were directed to
run concurrently.
The Prosecution Case:
The prosecution case, as per the first information
report (Ext.4) lodged by P.W.1 Mochiram Chatamba, the father
of the victim before the Inspector in-charge of Barbil police
station on 20.08.2014 is that the victim was aged about twelve
years and she was reading in Class-VI at the time of occurrence.
On 11.08.2014 at about 8.00 p.m., the victim was found missing
from her house and on 19.08.2014 at about 5.00 p.m., she
returned back home and when the family members confronted
her, she disclosed that the appellant forcibly kidnapped her, kept
her in Tankura jungle and committed rape on her and
subsequently on 19.08.2014 at about 5.00 p.m., he left her near
her house.
After registration of the case by the Inspector in-
charge of Barbil police station, P.W.8 Ajaya Pratap Swain, who
was the S.D.P.O., Barbil, took up investigation of the case and
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examined the informant, the victim, the mother of the victim and
other witnesses, apprehended the appellant. Both the appellant
and the victim were sent for medical examination on police
requisition and the reports were obtained. The wearing apparels
of the victim so also the appellant were seized under seizure list
vide Ext.7 and Ext.9 respectively. The biological samples of the
victim were also collected by the doctor and the same was
seized. Thereafter, the I.O. visited the spot and prepared the
spot map. The victim was produced before the J.M.F.C., Barbil
for recording of her statement under section 164 Cr.P.C. and
accordingly, the same was done. The seized exhibits were sent
to S.F.S.L., Rasulgarh for chemical examination through Court.
The caste particulars of the victim was obtained from Tahasildar,
Barbil vide Ext.15. On completion of investigation, the I.O.
submitted the charge sheet under sections 366-A/376(2)(i)/506
of the I.P.C. read with section 4 of the POCSO Act and section 3
(1)(xii) of the 1989 Act.
After submission of charge sheet, the learned trial
Court framed charges against the appellant as aforesaid and
since he refuted the charges, pleaded not guilty and claimed to
be tried, the sessions trial procedure was resorted to prosecute
him and establish his guilt.
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Witnesses & Exhibits:
During course of the trial, in order to prove its case,
the prosecution examined as many as eight witnesses.
P.W.1 Mochiram Chatamba is the informant in the
case and the father of the victim who stated that the appellant
kidnapped his daughter, took her to the jungle and committed
rape on her forcibly. He also stated about the disclosure made
before him by the victim about the sexual assault committed on
her by the appellant.
P.W.2 Harihar Barik is the scribe of the F.I.R. who
stated that P.W.1 requested him to scribe the F.I.R. and
accordingly, he scribed the F.I.R. as per the version of P.W.1.
P.W.3 is the victim who supported the prosecution
case and stated about the commission of rape on her by the
appellant.
P.W.4 Rajani Munda @ Chatamba is the mother of
the victim who stated about the disclosure made by the victim
about the overt act committed by the appellant on her.
P.W.5 Dr. Soudamini Dhal was posted as Medical
Officer in-charge, C.H.C., Barbil who examined the victim on
police requisition and proved her report vide Ext.2.
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P.W.6 Dr. Soubhagya Rashmi Ranjan Samal was the
Medical Officer at C.H.C., Barbil who examined the appellant on
police requisition and opined that the appellant was capable of
doing sexual intercourse and proved his report vide Ext.3.
P.W.7 Kusumita Naik was the Ward Member of
village Thakurani who, upon hearing about the incident from the
parents of the victim, instructed them to approach P.W.2 for
lodging the F.I.R.
P.W.8 Ajaya Pratap Swain was working as the
S.D.P.O., Barbil and he is the investigating officer of the case.
From the side of prosecution, fifteen documents were
exhibited. Ext.1 is the statement of the victim recorded under
section 164 Cr.P.C., Ext.2 is the medical report of the victim,
Ext.3 is the medical report of the appellant, Ext.4 is the F.I.R.,
Ext.5 is the medical requisition of the victim, Ext.6 is the medical
requisition of the appellant, Exts.7, 8, 9 and 10 are the seizure
lists, Ext.11 is the prayer for recording 164 Cr.P.C. statement of
the victim, Ext.12 is the prayer for sending seized exhibits and
Ext.13 is the office copy of forwarding letter to S.F.S.L.,
Bhubaneswar for chemical examination, Ext.14 is the chemical
examination report and Ext.15 is the caste particulars of the
appellant and victim submitted by the Tahasildar, Barbil.
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Date: 14-Aug-2023 19:40:12
The defence plea of the appellant is one of complete
denial of the prosecution case and of false implication in this
case due to a family dispute. The appellant being examined as
D.W.1 stated that the parents of the victim had given proposal
for her marriage with him and the engagement ceremony was
also performed as per the rituals of tribal community. Since the
parents of the appellant did not agree to the marriage, when
they came to know that the victim was twelve years of age, a
dispute arose between the two families and thereafter, a false
case has been foisted against him.
Finding of the learned Trial Court:
The learned trial Court after analyzing the oral and
documentary evidence on record came to hold that from the
testimonies of the victim, her parents, the appellant and the
doctor, it is found that on the date of occurrence, the victim was
about twelve years old and no material was brought forward by
the defence to establish that the victim was not a minor on the
date of occurrence. Taking into account the stipulation under
section 29 of the POCSO Act, the learned trial Court has been
pleased to hold that the prosecution is required to prove the
fundamental facts which constitute the offence. Once the
ingredients of the offences are made out, the accused would be
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given a chance to legally dislodge the same. It was further held
that the prosecution is able to prove through the evidence of the
victim girl as well as through medical report and the C.E. report
that the appellant had committed sexual intercourse on the
victim and no contradictory statement is elicited from the victim
by the defence in connection with narration of the incident. It
was further held that the prosecution has failed to establish that
the appellant belonged to non-S.C. & S.T. category and
therefore, it was deemed unsafe to convict him for the offence
punishable under the 1989 Act. Accordingly, the learned trial
Court has convicted the appellant of the charges under section 6
of the POCSO Act and sections 366/376(2)(n) of the I.P.C.,
however, acquitted him of the charge under section 3 (1)(xii) of
the 1989 Act.
Contentions of the Parties:
Mr. Lalitendu Bhuyan, learned counsel appearing for
the appellant contended that there is no clinching evidence
available on record regarding the age of the victim and the
observation of the learned trial Court that the victim was a minor
girl at the time of commission of offences against her, is not
justified. Learned counsel further submitted that the medical
examination report does not indicate about any bodily injury on
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the person of the victim though it is the prosecution case that
rape was committed on her for six days inside the jungle and
thus, it makes the allegations made in the F.I.R. improbable.
Learned counsel further argued that as the victim seems to be a
consenting party, the appellant be acquitted of the charges.
Mr. Arupananda Das, learned Additional Government
Advocate appearing for the State of Odisha, on the other hand,
supported the impugned judgment and contended that not only
the parents of the victim but the victim herself as well as the
doctor stated that the victim was aged between twelve to
fourteen years of age at the time of occurrence and the defence
has not suggested anything to any of these witnesses that the
age of the victim would be more and therefore, the finding of the
learned trial Court that the age of the victim as on the date of
occurrence was twelve years appears to be quite justified.
Learned counsel further argued that in view of the evidence of
the victim, which is very clinching and which gets corroboration
from the evidence of her parents, would be sufficient to establish
the charges that the appellant committed rape repeatedly on the
victim inside the jungle. Further, the learned counsel argued that
as the victim was a minor girl, which is proved by the evidence
of not only her parents but also of the doctor (P.W.5), even for
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the sake of argument, it is accepted that she consented to the
sexual intercourse, her consent is no consent in the eyes of law
and thus, he pleaded that the appeal should be dismissed.
Adverting to the contentions raised by the learned
counsel for the respective parties, let me first deal with the
evidence of the prosecution relating to the age of the victim as
on the date of occurrence.
Age of the victim:
P.W.1, the informant who is the father of the victim
has stated that the victim was twelve years of age and she was
studying in Class-VI. The victim being examined as P.W.3
reiterated the same. P.W.4, the mother of the victim has also
stated that the age of the victim as on the date of deposition
(19.11.2016) was twelve years and the evidence of P.Ws.1, 3
and 4 has remained unshaken during the cross-examination. The
doctor (P.W.5), from the ossification test report, found and
opined that the age of the victim would be between twelve to
fourteen years and accordingly, she came to the conclusion that
as on the date of occurrence, the victim was twelve years of age.
On perusal of the evidence of the aforesaid witnesses, i.e.
P.Ws.1, 3, 4 and 5, it appears that the victim was aged about
twelve years as on the date of occurrence. Significantly, the
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appellant being examined as D.W.1 has also stated that his
parents did not agree to his marriage with the victim when they
came to know that the victim was twelve years old. Therefore,
after going through the evidence of P.Ws.1, 3, 4 and 5, I am of
the humble view that the finding of the learned trial Court in
holding that the victim was twelve years of age at the time of
occurrence is quite justified.
Clause 8sixthly9 of section 375 of the I.P.C. clearly
provides that if a man does any of the act as enumerated under
clauses (a), (b), (c) or (d) of section 375 of the I.P.C. with or
without the consent of a girl when she is under eighteen years of
age, it would be deemed to be 8rape9. In the case in hand, the
age of the victim was established to be twelve years at the time
of occurrence which is much below the age upon attaining which
she would be eligible to accord her consent for sexual
intercourse. Therefore, the contention of the learned counsel for
the appellant that the overt act, if any, was done with the
consent of the victim and it would not be a case of rape,
deserves to be thrown out at the threshold.
Evidence of the victim:
The victim being examined as P.W.3 stated that one
day in the year 2014, she had gone to tie rakhi to her cousin
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brother Ahluwalia and on the way, the appellant dragged her by
holding her hands and took her to Tankura jungle. She further
stated that the appellant raped her in the jungle against her
volition. She further stated that the appellant made her roaming
around the jungle for eight to nine days and raped her six times
and ultimately left her near her house. Thereafter, she went
home and informed her parents about the occurrence. The father
of the victim, being examined as P.W.1, has stated that when
the victim came back home after eight to nine days, she
revealed that the appellant had kidnapped her and taken her to
the jungle and forcibly raped her during such time.
P.W.4, the mother of the victim has also stated that
when the victim returned home after eight to nine days, she
informed that she was forcibly taken to the jungle and raped by
the appellant. Therefore, the evidence of the victim gets
corroboration from the evidence of her parents.
The evidence of the doctor (P.W.5) also indicates that
on 20.08.2014, when she medically examined the victim on
police requisition, her genital examination revealed four old tears
in her hymen which was aged about more than seven days and
she specifically stated that sexual intercourse on the alleged
dates i.e. between 11.08.2014 to 17.08.2014 cannot be ruled
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out. There was no cross-examination of the doctor. The appellant
was medically examined on 20.08.2014 by the doctor (P.W.6) on
police requisition who opined that he was capable of having
sexual intercourse. Therefore, the ocular testimony of the victim
gets corroborated by her parents so also gets support from the
medical evidence.
The appellant being examined as D.W.1 stated that
the parents of the victim had given proposal for her marriage
with him and in that connection, engagement ceremony was held
as per the rituals of the tribal community but when his parents
came to know that the victim was twelve years of age, they did
not agree for such marriage and for which there was a discord
between the two families and, a false case has been foisted
against him.
In the statement recorded under section 313 of
Cr.P.C., the appellant has stated that he had love affair with the
victim and therefore, being averse to such relation, the father of
the victim had initiated a false case against him. It appears that
the defence plea is quite inconsistent and not reliable.
In view of the forgoing discussions, I am of the
humble view that not only the prosecution has successfully
proved that as on the date of occurrence, the victim was twelve
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years of age but also it has established that the appellant
kidnapped her, committed rape on her inside the jungle on a
number of occasions and ultimately left her at the house after
eight to nine days. The doctor9s (P.W.5) evidence also
corroborated the version of the victim and therefore, the learned
trial Court is quite justified in holding that the ingredients of the
offence under section 6 of the POCSO Act which prescribes
punishment for 8aggravated penetrative sexual assault9 as
defined under section 5 of the POCSO Act are made out
inasmuch as section 5(l) of the POCSO Act states that whoever
commits 8penetrative sexual assault9 on a child more than once
or repeatedly can be said to have committed 8aggravated
penetrative sexual9 assault.
Similarly, the ingredients of the offence under section
376(2)(n) of the I.P.C. are also made out inasmuch as the
prosecution has successfully proved that the appellant raped the
victim repeatedly inside the jungle.
In view of the proved age of the victim and her
statement that she was dragged inside the Tankura jungle by the
appellant and was detained there for about eight to nine days for
the purpose of commission of sexual intercourse with her, I am
of the humble view that the prosecution has also proved the
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ingredients of the offence under section 366 of I.P.C. which
provides punishment for kidnapping or abducting any woman so
that she may be forced or seduced to illicit intercourse.
The punishment that has been awarded to the
appellant under section 6 of the POCSO Act is R.I. for ten years,
which was the minimum sentence prescribed for such offence.
No separate sentence was awarded for the offence under section
376(2)(n) of the I.P.C. in view of section 42 of the POCSO Act.
Further, though the Court is empowered to sentence up to ten
years for commission of offence punishable under section 366 of
the I.P.C., it awarded a term of R.I. for only five years.
Therefore, a combined analysis of the factors like age of the
victim and nature of the offence committed, I do not find the
sentences awarded to be extravagant or excessive.
Conclusion:
In view of the foregoing discussions, I am of the
humble view that the learned trial Court has rightly come to the
conclusion that the prosecution has successfully established the
charge under sections 366/376(2)(n) of the I.P.C. and section 6
of the POCSO Act against the appellant and the impugned
judgment and order of sentence hereby stand confirmed. No
separate sentence is awarded under section 376(2)(n) of the
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I.P.C. in view of section 42 of the POCSO Act as rightly done by
the learned trial Court.
Accordingly, the JCRLA being devoid of merit stands
dismissed. The learned trial Court has awarded compensation
worth of Rs.1,00,000/- (rupees one lakh) in favour of the victim
and directed the District Legal Services Authority, Keonjhar to
deposit the said amount in an interest bearing fixed deposit
account in any Nationalised Bank in the name of the victim girl.
It is not known whether such amount has been deposited or not,
however, since the victim has now become major, the
compensation amount be assessed in accordance with the Odisha
Victim Compensation (Amendment) Scheme, 2018 and payment
is to be made immediately to the victim within a period of two
months from the date of receipt of a copy of this judgment.
Let a copy of the judgment be sent to the District
Legal Services Authority, Keonjhar for compliance.
Trial Court records with a copy of this judgment be
communicated to the concerned Court forthwith for information
and necessary action.
Before parting with the case, I would like to put on
record my appreciation to Mr. Lalitendu Bhuyan, learned counsel
for the appellant so also Mr. Arupananda Das, learned Additional
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Location: Orissa High Court, Cuttack
Date: 14-Aug-2023 19:40:12
Government Advocate for rendering their valuable help and
assistance towards arriving at the decision above mentioned.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 9th August 2023/Sipun
