Kabi @ Kabiraj Nayak vs State Of Odisha
2023 Latest Caselaw 1071 Ori

              IN THE HIGH COURT OF ORISSA, CUTTACK
                                      JCRLA No.90 OF 2019

       From judgment and order dated 24.10.2019 passed by the
       Special Judge (POCSO) -cum- 2nd Additional Sessions Judge,
       Berhampur, Ganjam in G.R. No.07 of 2018.
                                          ----------------------------

              Kabi @ Kabiraj Nayak                   .......                            Appellant


                                                  -Versus-


              State of Odisha                        .......                            Respondent


                     For Appellant:                     -                Ms. Susmita Pattanaik
                                                                         (Amicus Curiae)


                     For Respondent:                    -             Mr. Priyabrata Tripathy
                                                                      Addl. Standing Counsel
                                          ----------------------------

       P R E S E N T:

                        THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 01.02.2023

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S.K. SAHOO, J. The appellant Kabi @ Kabiraj Nayak faced trial in the

Court of learned Special Judge (POCSO) -cum- 2nd Additional

Sessions Judge, Berhampur, Ganjam in G.R. No.07 of 2018 for

commission of offences punishable under sections

324/376(2)(i)/506 of the Indian Penal Code and section 4 of the // 2 //

Protection of Children from Sexual Offences Act, 2012 (hereafter

'POCSO Act') on the accusation that on 22.01.2018 at about 1.00

p.m. at village Barapali under Tarasingi police station in the

district of Ganjam, he assaulted the victim (P.W.2) and

committed criminal intimidation by threatening her and also

committed rape on her.

The learned trial Court vide impugned judgment and

order dated 24.10.2019 though acquitted the appellant of the

charges under sections 324/506 of the Indian Penal Code but

found him guilty under section 376(2)(i) of the Indian Penal

Code as well as section 4 of the POCSO Act. The appellant was

sentenced to undergo rigorous imprisonment for ten years and to

pay a fine of Rs.10,000/- (rupees ten thousand), in default of

payment of fine, to suffer rigorous imprisonment for a further

period of six months for the offence under section 376(2)(i) of

the Indian Penal Code, however, no separate sentence was

imposed for his conviction under section 4 of the POCSO Act in

view of the provision under section 42 of the POCSO Act.

2. The prosecution case, in short, is that on 22.01.2018

at about 1.00 p.m., the victim (P.W.2) had gone to attend the

call of nature. The appellant called her to accompany him to

collect plum (koli) but she denied. Then he forcibly dragged the

victim, tore her frock and pant and committed rape on her. The

// 3 //

appellant also threatened the victim not to disclose about the

occurrence before any one otherwise she would face dire

consequences. The victim presented the written report before

P.W.9, the Inspector in-charge of Tarasing police station on

23.01.2018 and accordingly, Tarasing P.S. Case No.11 of 2018

was registered under sections 324/376/506 of the Indian Penal

Code and section 6 of the POCSO Act against the appellant.

P.W.9 himself took up investigation of the case.

During course of investigation, P.W.9 examined the witnesses

and the scribe of the F.I.R. The victim was sent for her medical

examination to M.K.C.G. Medical College and Hospital,

Berhampur and the statement of the victim, who was a minor

girl, was recorded by lady Sub-Inspector of Police. P.W.9 visited

the spot on 24.01.2018 and prepared the spot map. On

24.01.2018, the appellant was arrested and he was also sent for

medical examination to S.D.H., Bhanjanagar on police

requisition. The biological samples of the appellant and the

victim were collected by the doctors and those were seized by

P.W.9. The wearing apparels of the appellant as well as the

victim were also seized. The school leaving certificate and

Aadhaar card of the victim were seized on production by P.W.3,

the brother of the victim and after retaining the copy of those

documents, the original documents were handed over to him on

// 4 //

execution of proper zimanama. The statement of the victim was

recorded under section 164 Cr.P.C. by the Judicial Magistrate as

per the direction of the learned Special Judge (POCSO) on the

prayer being made by the I.O. (P.W.9). On the prayer of the

I.O., the exhibits were sent to R.F.S.L., Berhampur for chemical

examination and on completion of investigation, on 21.03.2018,

P.W.9 submitted charge sheet against the appellant under

sections 324/376(2)(i)/506 of the Indian Penal Code read with

section 4 of the POCSO Act.

3. The defence plea of the appellant was that he was

working as a labourer in the land of the father of the victim and

the father of the victim was trying to sell away his land and

when the appellant demanded his dues, a false case has been

foisted against him.

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

prosecution has examined as many as twelve witnesses.

P.W.1 Saila Sahu is the mother of the victim, who

stated that on the date of occurrence, the victim had been to the

field near the village embankment to attend call of nature and

the appellant called the victim to collect plum (koli) but she

denied and thereafter, the appellant forcibly took her by gagging

her mouth by a napkin, tore her dress forcibly and committed

rape on her. She further stated that her daughter returned back

// 5 //

to the house crying and revealed the entire incident before her

and her daughter-in-law and on the date of occurrence, her son

(P.W.3) was not present in the house and she intimated him

about the incident over telephone and her son came back

immediately on the next day of the occurrence and thereafter,

she along with the victim and her son came to the police station

where the victim lodged the first information report. She further

stated that at the time of occurrence, the victim was aged about

fifteen years.

P.W.2 is the victim and also the informant. She

supported the prosecution case and stated about the commission

of rape on her by the appellant. She stated that she narrated the

entire incident before her mother (P.W.1) and her sister-in-law

and at the time of occurrence, she was aged about fourteen

years.

P.W.3 Pramod Kumar Sahu is the brother of the

victim and son of P.W.1, who stated that on the date of

occurrence, he had been to the matrimonial house of one of his

sister and day after the occurrence, he was called back to his

house by P.W.1 over telephone and he immediately came back

and on his return, P.W.1 and P.W.2 disclosed the entire incident

and thereafter, he himself, P.W.1 and P.W.2 came to the police

station. He produced the original school leaving certificate and

// 6 //

the Aadhaar card of the victim before the police and police seized

those documents and after seizing the same, gave him zima

under zimanama (Ext.2).

P.W.4 Suratha Naik is a co-villager of the informant

and also a post occurrence witness. He stated that while he was

returning from his agricultural fields, he saw the victim crying

and he asked her as to why she was crying, the victim told that

the appellant forcibly held her.

P.W.5 Patita Naik is a co-villager of the informant

and a post occurrence witness. He stated that while he was

returning after fetching firewood from the nearby jungle, he saw

the appellant was running away from the spot and the victim

was coming out crying and later he came to know that the

appellant committed rape on the victim.

P.W.6 Dr. Luzoo Prachishree was the Assistant

Professor in the Department of O. & G. at M.K.C.G. Medical

College and Hospital, Berhampur who examined the victim

(P.W.2) on police requisition on 25.01.2018 and noticed some

injuries on the person of the victim and opined that those were

signs of recent penetrative sexual assault. She also opined that

the victim was more than 14 years and less than 16 years and

// 7 //

she proved the medical examination report of the victim vide

Ext.5/2.

P.W.7 Dr. Pradeep Kumar Mahapatra, who was the

Senior Medical Officer at S.D.H., Bhanjanagar, medically

examined the appellant on police requisition and proved the

medical examination report vide Ext.6/2.

P.W.8 Krishna Ahula, who was working as Constable

at Tarasingi police station, is a witness to the seizure vide

seizure lists Ext.7 and Ext.9.

P.W.9 Puspendu Sagar was the Inspector in-charge

of Tarasingi police station and he is the Investigating Officer of

the case.

P.W.10 Dillip Kumar Sahu is the scribe of the F.I.R.

(Ext.10).

P.W.11 Bidyut Ranjan Nayak, who was working as

Constable at Tarasingi police station, is a witness to the seizure

vide seizure list Ext.7.

P.W.12 Ambika Benia was the Sub-Inspector of Police

of Jagannath Prasad police station, who stated that on

23.01.2018, as per the order of Utkal Kesari Das, the then

S.D.P.O., Bhanjanagar, he examined the victim (P.W.2) and

// 8 //

recorded her statement under section 161 Cr.P.C. and handed

over the same along with the case diary to the concerned I.O.

The prosecution exhibited twenty two numbers of

documents. Ext.1 is the 164 Cr.P.C. statement of the victim,

Ext.2 is the zimanama of original school leaving certificate and

Aadhaar card of the victim, Ext.3 is the original school leaving

certificate of the victim, Ext.4 is the original Aadhaar card of the

victim, Ext.5 is the consent memo of the victim, Ext.5/2 is the

medical examination report of the victim, Ext.6 is the consent

memo of the appellant, Ext.6/2 is the medical examination

report of the appellant, Ext.7 is the seizure list of one sealed

pocket containing the blood sample, pubic hair, saliva and nail

clipping of the appellant and one command certificate, Ext.8 is

the command certificate, Ext.9 is the seizure list of the wearing

apparels of the victim, Ext.10 is the F.I.R., Ext.11 is the spot

map, Ext.12 is the crime detail form, Ext.13 is the medical

requisition of the victim, Ext.14 is the medical requisition of the

appellant, Ext.15 is the seizure list of one faded orange colour

dhoti, Ext.16 is the seizure list of one original school leaving

certificate and one original Aadhaar card of the victim, Ext.17 is

the medical requisition issued in respect of the victim, Ext.18 is

the command certificate, Ext.19 is the seizure list of one

envelope containing the pluck pubic hair, soaked and air dried

// 9 //

virginal swab of the victim and one command certificate, Ext.20

is the forwarding letter of S.D.J.M., Berhampur to R.F.S.L.,

Berhampur, Ext.21 is the acknowledgement receipt and Ext.22 is

the command certificate.

No witness has been examined on behalf of the

defence.

5. The learned trial Court on analyzing the oral as well

as documentary evidence on record, came to hold that the

prosecution has been able to prove that the age of the victim

was below sixteen years at the time of occurrence and hence,

she was a child then as per section 2(d) of the POCSO Act. It

was further held that the medical evidence also substantially

corroborates the version of the victim with regard to rape

committed on her and the ocular and medical evidence on record

being taken together leaves no room of doubt that the appellant

had committed penetrative sexual act with the victim. Learned

trial Court ultimately came to the conclusion that the prosecutrix

has made a truthful statement and that the prosecution has

established its case beyond all reasonable doubt.

6. Ms. Susmita Pattanaik, learned Amicus Curiae

appearing for the appellant contended that the F.I.R. was not

lodged on the date of occurrence (22.01.2018) and it was lodged

on the next day of occurrence i.e. on 23.01.2018 and the victim

// 10 //

was examined by the doctor (P.W.6) on 25.01.2018 and the

doctor has stated that during examination of the victim, she did

not detect live or dead spermatozoa. Learned counsel further

argued that on 24.01.2018, the appellant was also medically

examined and the doctor did not find any bodily injury on his

person suggestive of forcible sexual intercourse and no physical

clue was available on the clothes of the appellant to suggest the

alleged sexual intercourse and there was no sign and symptoms

of recent sexual intercourse and therefore, the prosecution case

that the appellant committed rape on the victim is very difficult

to be accepted and as such benefit of doubt should be extended

in favour of the appellant.

Mr. Priyabrata Tripathy, learned Additional Standing

Counsel appearing for the State of Odisha, on the other hand,

supported the impugned judgment and contended that

consistent evidence has been adduced on behalf of the

prosecution that the victim was a minor girl at the time of

occurrence. Not only the oral evidence and the documentary

evidence like the school leaving certificate and Aadhaar card of

the victim indicate that she was a minor as on the date of

occurrence, but also the doctor (P.W.6) has assessed her age to

be more than fourteen years and less than sixteen years and

there has been no challenge to any of the witnesses, who stated

// 11 //

about the age of the victim by the defence. Learned counsel

further submitted that the evidence of the victim relating to the

commission of rape on her has not been shaken in the cross-

examination and the doctor has noticed not only the injuries on

different parts of the body but stated that those were the signs

of recent penetrative sexual assault. Learned counsel further

submitted that non-finding of live or dead spermatozoa by the

doctor after three days of the occurrence cannot be a ground to

disbelieve commission of rape on the victim, particularly when in

view of the definition of 'rape' as per the amended provision of

section 375 of the Indian Penal Code, the discharge of semen is

not a factor to make out the ingredients of the offence. Learned

counsel further argued that the appellant was examined two

days after the date of occurrence and non-finding of any sign or

symptoms of recent sexual intercourse cannot be a ground to

discard the prosecution case and delay in lodging F.I.R. has been

satisfactorily explained by the prosecution and therefore, the

learned trial Court has rightly found the appellant guilty and the

appeal should be dismissed.

7. Adverting to the contentions raised by the learned

counsel for the respective parties, let me first discuss about the

age of the victim (P.W.2) as on the date of occurrence.

// 12 //

Age of the victim:

The victim being examined as P.W.2 specifically

stated that by the time of occurrence, she was aged about

fourteen years. She further stated that she had attended her

schooling in her village till Class-V but she was unable to read

and write for which she put L.T.I. on all the papers. P.W.1, the

mother of the victim has stated that at the time of occurrence,

the victim was aged about fifteen years. The brother of the

victim being examined as P.W.3 has proved the school leaving

certificate of the victim marked as Ext.3 and the Aadhaar card of

the victim marked as Ext.4 and he submitted that in these two

documents, the date of birth of the victim was mentioned as

20.01.2003. The doctor (P.W.6), who was the Assistant

Professor in the Department of O. & G. at M.K.C.G. Medical

College and Hospital, Berhampur has specifically stated that on

physical findings, dental examination, secondary sexual

characters and radiological findings, she was of the opinion that

the age of the victim was more than fourteen years and less

than sixteen years. The defence has not challenged the age of

the victim by putting any questions to any of these witnesses nor

even adduced any evidence to counter the age of the victim that

she was not a minor as on the date of occurrence. In view of the

oral as well as documentary evidence adduced by the

// 13 //

prosecution, I am of the humble view that the learned trial Court

has rightly came to the conclusion that the victim was below

sixteen years of age at the time of occurrence and hence, she

was a child then as per section 2(d) of the POCSO Act.

Rape on the Victim:

8. The victim being examined as P.W.2 stated that on

the date of occurrence, she had gone to the field at about 12.00

noon to attend the call of nature and at that time, the appellant

called her to accompany him to collect plum (koli) to which she

denied and when she refused, the appellant forcibly dragged her

by holding her arms and made her lie down and undressed

himself and being naked committed rape after tearing her

clothes and when she raised shout to protest, the appellant

gagged her mouth with the help of a napkin. The victim further

stated that after the incident, she came back from the spot

crying and narrated the incident to her mother and sister-in-law.

In the cross-examination, the victim has stated that the house of

the appellant was in her village but he belonged to a different

Sahi. She further stated that at the time of occurrence, no one

else was present at or near the spot and no person was present

at the embankment. Thus, the testimony of the victim which has

not been shaken in the cross-examination, can be safely relied

upon as it appears to be clear, cogent and trustworthy.

// 14 //

The mother of the victim being examined as P.W.1

has stated that her daughter (P.W.2) returned back to the house

crying and revealed the entire incident before her and her

daughter-in-law. The immediate conduct of the victim (P.W.2) in

disclosing about the incident before her mother is admissible as

res gestae under section 6 of the Evidence Act as it is a

spontaneous statement connected with the fact in issue and

there was no time interval for fabrication. Therefore, the

disclosure made by the victim about the commission of rape on

her as deposed to by the victim is getting corroboration from her

mother's evidence.

Delay in lodging F.I.R.:

9. Even though the occurrence took place on

22.01.2018, but it appears from the evidence of both the victim

(P.W.2) and her mother (P.W.1) that the brother of the victim

who has been examined as P.W.3 was not present in the village

on the date of occurrence and he came to the village one day

after the occurrence and then decision was taken for lodging the

first information report. Moreover, in a case of this nature, delay

in lodging of the first information report cannot be a factor to

disbelieve the prosecution case, particularly when the family

members used to take time to approach the police keeping in

view the prestige of the family and the future of the victim girl.

// 15 //

In the case of State of Himachal Pradesh -Vrs.- Gian Chand

reported in (2001) 6 Supreme Court Cases 71 which is also

a case of rape of minor girl, the Hon'ble Court held that delay in

lodging the F.I.R. cannot be used as a ritualistic formula for

doubting the prosecution case and discarding the same solely on

the ground of delay in lodging the first information report. Delay

has the effect of putting the Court in its guard to search if any

explanation has been offered for the delay, and if offered,

whether it is satisfactory or not. If the prosecution fails to

satisfactorily explain the delay and there is possibility of

embellishment in prosecution version on account of such delay,

the delay would be fatal to the prosecution. However, if the

delay is explained to the satisfaction of the Court, the delay

cannot by itself be a ground for disbelieving and discarding the

entire prosecution case. In view of the evidence on record, I am

of the humble view that the prosecution has satisfactorily

explained the delay in lodging of the F.I.R.

Delay in medical examination of victim:

10. After the lodging of F.I.R. on 23.01.2018, though the

victim (P.W.2) was sent initially for her medical examination to

S.D. Hospital, Bhanjanagar with the escorting police officials on

24.01.2018, but all of them returned back and the escorting

police officials reported that the victim and her brother did not

// 16 //

agree for medical examination at S.D.Hospital, Bhanjanagar and

requested to take the victim to M.K.C.G. Medical College and

Hospital, Berhampur for the medical examination. The I.O. has

stated that on 24.01.2018, there was a strike called by the

political parties and they were not allowing the vehicles to

proceed beyond Bhanjanagar for which the victim was produced

before the doctor at M.K.C.G. Medical College and Hospital,

Berhampur on 25.01.2018 and she was examined and therefore,

there is no delay in the medical examination of the victim.

Corroboration from medical evidence:

11. The doctor (P.W.6) who examined the victim has

specifically stated that there was scratch abrasion over the right

cheek area, contusion over the chin below the lower lip on the

left side, abrasion and abraded contusion on the dorsum of the

right foot and also on the medium part of the right leg and it was

opined by the doctor that those were the signs of recent

penetrative sexual assault. The doctor further stated that the

external injuries were possible due to hard and blunt trauma

consistent with dragging effect or pressure by elongated sharp

finger nails or toe nails and it also suggested struggle or defence

by the victim. Therefore, the evidence of the victim relating to

commission of rape on her is corroborated by the medical

evidence adduced by P.W.6.

// 17 //

Absence of injuries on the appellant:

12. No doubt, the doctor (P.W.7), who examined the

appellant, did not find any bodily injuries on the person of the

appellant suggestive of forcible sexual intercourse nor any

physical clue was available in his clothes, however the doctor has

stated that the appellant was capable of performing sexual

intercourse and in the cross-examination, he has stated that the

appellant was not suffering from any erectile dysfunctional

problems.

In the case of Gian Chand (supra), the Hon'ble

Supreme Court held as follows:-

"15. The observations made and noted by Dr. Mudita Gupta during the medico-legal examination of P.W.7 clearly make out the prosecutrix having been subjected to rape. The prosecutrix has spoken of "penetration" in her statement. The discovery of spermatozoa in the private parts of the victim is not a must to establish penetration. There are several factors which may negative the presence of spermatozoa (see Narayanamma -Vrs.- State of Karnataka reported in (1994) 5 Supreme Court Cases 728). Slightest penetration of penis into vagina without rupturing the hymen would constitute rape (see Madan Gopal Kakkad -Vrs.- Naval Dubey reported in

// 18 //

(1992) 3 Supreme Court Cases 204). The suggestion made in the cross-examination of Dr. Mudita Gupta that injury of the nature found on hymen of the prosecutrix could be caused by a fall does not lead us anywhere. Firstly, no such suggestion was given to the prosecutrix or her mother during cross-examination. Secondly, why would the girl or her mother implicate the accused, charging him with rape, if the injury was caused by a fail? There is nothing to draw such an inference, not even a suggestion, to be found on record. The answer to the suggestion made to Dr. Gupta cannot discredit the prosecution case in the absence of any other material to support the suggestion. So is the case with the absence of external marks of violence on the body of the victim. In case of children who are incapable of offering any resistance external marks of violence may not be found. (See Modi's Medical Jurisprudence, 22nd Edn., p.502). It is true that marks of external injury have not been found on the person of the accused but that by itself does not negate the prosecution case. Modi has opined (see, Modi, ibid, p.509) that even in the case of a child victim being ravished by a grown-up person it is not necessary that there should always be marks of injuries on the penis in such cases. Further, it is to be noted that about two days had elapsed between the time of the

// 19 //

incident and medical examination of the accused within which time minor injuries, even if caused, might have healed."

13. In view of the foregoing discussions, when the

prosecution has not only proved the age of the victim to be

below sixteen years and the victim's evidence is found to be

reliable, trustworthy and clinching and the victim's disclosure

before her mother about the commission of rape on her lends

support to the prosecution case and the medical evidence also

corroborates the evidence of the victim, I am of the humble view

that the learned trial Court has rightly found the appellant guilty

under section 376(2)(i) of the Indian Penal Code and section 4 of

the POCSO Act. The sentence imposed for the offence under

section 376(2)(i) of the Indian Penal Code is also quite justified

and rightly the learned trial Court has not awarded separate

sentence under section 4 of the POCSO Act in view of the section

42 of the said Act.

Accordingly, the Jail Criminal Appeal being devoid of

merits, stands dismissed.

14. It appears from the impugned judgment that the

learned trial Court has awarded compensation to the tune of

Rs.4,00,000/- (rupees four lakhs) to the victim to be paid

through the District Legal Services Authority, Ganjam at

// 20 //

Berhampur and it was further directed that the said amount shall

be kept in fixed deposit in the name of the victim in any

nationalized bank till she attained majority. It is not known

whether the amount of compensation has been deposited in the

name of the victim or not and if the same has not been done,

since in the meantime, the victim has already attained the

majority, the compensation amount shall be paid to her

immediately.

Let a copy of the judgment be sent to the District

Legal Services Authority, Ganjam at Berhampur 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 Ms. Susmita Pattanaik, the learned

Amicus Curiae for rendering her valuable help and assistance

towards arriving at the decision above mentioned. The learned

Amicus Curiae shall be entitled to her professional fees which is

fixed at Rs.7,500/- (rupees seven thousand five hundred only).

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

S.K. Sahoo, J.

Orissa High Court, Cuttack The 1st February 2023/RKMishra