Rama Chandra Nayak vs State Of Odisha
2023 Latest Caselaw 2324 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  CRA NO.319 OF 1993

            (From the judgment and order dated 24th September, 1993
            passed by learned 2nd Addl. Sessions Judge, Cuttack in S.T.
            No.6 of 1992)

                 Rama Chandra Nayak
                                                            ...        Appellant

                                              -versus-

                  State of Odisha                            ...        Respondent



              Advocates appeared in the case through hybrid mode:

                     For Appellants : Mr.D.K.Mohapatra
                                      Advocate

                                                          -versus-

                    For Respondent: Mr.S.N.Das,
                                    Addl. Standing Counsel

              ---------------------------------------------------------------------------
                     CORAM:

                                    JUSTICE SASHIKANTA MISHRA

                                                  JUDGMENT

22.03.2023.

Sashikanta Mishra,J. The Appellant challenges the judgment of

conviction and sentence dated 24th September, 1993

passed by learned 2nd Addl. Sessions Judge, Cuttack

in S.T. Case No.6/1992 whereby, being convicted for

the offence under Section 376 of I.P.C. he was

sentenced to undergo R.I. for seven years.

2. The prosecution case, briefly stated, is as follows;

On 12th July, 1991, the informant (name withheld)

lodged F.I.R. before Tangi Police Station alleging

therein that his minor daughter 'X' (name withheld)

aged about 9 years had gone to bring grass from the

nearby jute field and while she was returning, the

present accused forcibly lifted her and took her inside

the jute field and committed sexual intercourse on her

after putting a small piece of cloth inside her mouth.

This resulted in injury on the private part of the victim.

On her return the victim described the incident by

crying, hearing which the informant went to the house

of the accused but did not find him. The father of the

accused requested for amicable settlement but the

same did not materialize for which the F.I.R. was

lodged. On such basis, Tangi P.S. Case No.46/1991

was registered under Section 376 of I.P.C. followed by

investigation. Upon completion of investigation, charge

sheet was submitted also under Section 376 of I.P.C.

3. The defence took the plea of denial.

4. In order to prove its case, the prosecution examined

9 witnesses out of whom, P.W.1 is the victim "X", P.W.2

is her mother, P.W.3 is her father and informant,

P.Ws.4 to 7 are co-villagers, P.W.8 is the Doctor, who

examined the victim and P.W.9 is the I.O. Besides, the

prosecution proved 7 documents and three material

objects. Defence did not adduce any evidence

whatsoever.

5. After appreciating the evidence on record,

particularly the evidence of the victim (P.W.1) as

corroborated by the other witnesses (P.Ws.2 and 3) and

the evidence relating to injuries sustained by her, the

trial Court held the offence under Section 376 of I.P.C.

as clearly established. On such finding the accused

was convicted and sentenced as already stated

hereinbefore.

6. Heard Mr. D.K.Mohapatra, learned counsel for

the Appellant and Mr. S.N.Das, learned Addl. Standing

Counsel for the State.

7. Assailing the impugned judgment, Mr.

Mohapatra has contended that the entire case has

been falsely foisted against the accused, which would

be evident from the fact that the F.I.R. was lodged

belatedly. He has further pointed out several

contradictions in the version of the victim as have been

proved during cross-examination of the I.O. Mr.

Mohapatra has also contended that the circumstances

under which the victim being such a young girl was

asked to cut and obtain grass has not been

highlighted at all. The final ground urged by Mr.

Mohapatra is delay in medical examination of the

victim and the accused.

8. Mr. S.N.Das, learned Addl. Standing Counsel, on

the other hand, submits that the victim's statement is

clear, consistent and trustworthy. It is otherwise

proved from the evidence of the Doctor (P.W.8).

Therefore, the so-called contradictions and

discrepancies pointed out by the defence cannot nullify

the positive evidence regarding commission of the

offence by the accused.

9. In order to independently assess the evidence, this

Court has gone through the evidence of the victim "X",

who was examined as P.W.1. At the time of her

testimony she was aged about 10-11 years. The Court

below considered her competent to testify after duly

testing her.

10. A reading of the deposition of the victim shows

that she vividly described the occurrence in all

material details. She was cross-examined extensively

but nothing material was elicited from her to disbelieve

her sole testimony. Some discrepancies have been

pointed out by the learned counsel for the Appellant

but then, considering the age of the victim and the fact

that she was deposing after about two years of the

occurrence, it is only natural that such discrepancies

would occur. The question is, whether the same are of

such nature as to demolish the prosecution case

entirely. Turning to the other evidence, this Court finds

that the mother of the deceased fully corroborated the

F.I.R. version to the effect that on the date of

occurrence in between 4 to 4.30 P.M. while she was in

house, the victim came crying and told her about the

occurrence giving all details. P.W.2 also deposed that

she saw the private part of the victim and marked

injury and bleeding. She further stated that when her

husband reached there, she narrated the incident

before him where after he along with his father went to

the house of accused to ask him about the incident.

The father of the accused took time to settle the matter

on the next morning, but no settlement could

materialize, for which F.I.R. was lodged. She

categorically stated that as the accused had

absconded, the compromise could not be effected. The

informant was examined as P.W.3. He fully

corroborated the version of P.W.2. Both P.Ws.2 and 3

were cross-examined extensively but nothing came out

from them so as to cast a doubt on their testimony.

The Doctor, who had examined the victim as well as

the accused after the incident, was examined as P.W.8.

He admitted to have examined the victim and found

two injuries on her body and three injuries on her

private parts. In particular, he deposed to have found

the following injuries;

(i) Tear 1 cm x 1/4cm situated on the angle of the mouth at its left side.

(ii) Tear 2 cm x 1 cm situated on the upper lip close to the right side angle of the mouth.

(iii) Nail cut abrasion ½ cm x ¼ cm situated on the left side of the labia major. Its long axis is parallel to Labial foldout line.

(iv) A vertical tear ¾ cm x ¼ cm on each side of labia minor on either side associated with bruising of the labial folds-2 in number.

(v) Tear ½ cm x 1/8 cm on the outlet of the vagina at the posterior fornix extending towards the attached

margin of the hymen which was deep seated and immature type.

In para-7 he further deposed the following;

(i) The victim girl had not attained her menarche (maturity).

(ii) There was no signs of previous sexual intercourse with the victim girl, prior to this occurrence.

(iii) There was evidence of forced sexual act on the victim girl about 48 hours prior to the time of physical examination (14.7.91).

(iv) Seminal stains were detected in the person of the victim girl. Since the wearing frock at the time of examination was not the wearing apparels at the time of incident, it was not examined.

(v) Injuries noted as above are consistent with violence as has been described earlier.

(vi) The injuries on the face of the victim girl as noted above was consistent with forceful silencing the girl by the assailant which is suggestive of the resistance offered by the girl at the time of sexual assault.

(vii) The victim girl was aged more than 8 and half years and less than 10 years at the time of examination.

If the testimony of the Doctor is compared with

that of the victim's version, it is evident that both are

fully consistent and complement each other.

Further, P.W.8 also examined the accused and

found him capable of committing sexual intercourse

and in particular, he stated that the possibility of the

accused having committed rape on the victim girl could

not be ruled out.

11. It is the settled position of law that in cases of

rape particularly, involving minor children the Courts

must show utmost sensitivity and not be swayed away

by minor contradictions and discrepancies that may be

found here and there in the evidence of prosecution.

Reference in this regard may be had to the decision of

the Apex Court in the case of State of Punjab vs.

Gurmit Singh; (1996) 2 SCC 384;

"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad

reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

12. It is also well settled that in a case of rape the

version of the victim by itself is adequate to bring home

the guilt if it is implicitly reliable and has a ring of

truth in it. A three Judge Bench of the Apex Court

took the above view in the case of Mukesh vs. State

(NCT of Delhi); reported in (2017) 2 SCC (Cri) 673.

13. In the instant case, as has been discussed herein

before, the victim's version herself is clear, inconsistent

and truthful. Even otherwise, the same has been

adequately corroborated by her parents and by the

Doctor, who had examined her. The defence, despite

taking the plea of false implication has not been able to

satisfy the Court as to why the victim being such a

young girl of tender age at the relevant time would

falsely implicate the accused particularly, when it has

been elicited from her during cross-examination that

she did not know the accused prior to the occurrence.

This Court therefore, finds that the evidence on record

clearly proves the offence under Section 376 of I.P.C.

14. Coming to the contentions raised by the accused-

appellant, this Court finds that the F.I.R. itself

contains the explanation for belated lodging thereof to

the effect that the matter was first attempted to be

resolved amicably but as the same failed, the F.I.R.

was lodged. Considering the economic and socio-

cultural as also the rival background of the parties, it

is quite plausible that an offence like the one in the

instant case involving a minor girl would be attempted

to be hushed up at the first instance. Therefore, this

Court is not impressed with the argument that there

was an inordinate delay in lodging of the F.I.R. or that

such delay was to such extent as to treat the

prosecution case with doubt.

15. The contradictions referred to by the Appellant are

not actually contradictions inasmuch as it was

suggested to the I.O. that the victim had not stated

specifically that the accused penetrated his penis into

her vagina and that the accused committed sexual act

(TALA UPARA KALA). The I.O. stated that the victim

though had not specifically said so nevertheless had

stated that TAPARE SE TA NALIATA MO GULARE MO

MAJHI ANGULI PAGARA ADHA PARJYANTA PURAI

MOTE GEHILA which can be loosely translated as -

Then he inserted his penis inside my vagina as deep

as half of my middle finger and committed sexual act.

Thus, the contradiction relating to use of the exact

words by the victim, who was deposing two years after

the occurrence, is not such as would nullify the

prosecution case altogether.

16. As to the next ground urged, this Court finds that

when there is clear, ocular and medical evidence

suggesting commission of the offence by the accused,

non-mentioning of the circumstances under which the

victim had gone to cut grass is immaterial.

17. As regards the so called delay in medical

examination of the victim and the accused, it is seen

that the occurrence took place on 12.7.1991 whereas

the victim was examined on 14th July, 1991. Despite

such delay, the Doctor found enough evidence of

sexual assault on the victim by specifically stating that

"there was evidence of forced sexual act on the victim

girl about 48 hours prior to the time of physical

examination. Moreover, it is not the case of the

accused that somebody else had committed the offence

in between. Therefore, this argument must fail.

18. Thus, from a conspectus of the analysis and

discussion made herein before and on perusal of the

impugned judgment, this Court finds that the Court

below has rightly appreciated the evidence on record to

record the order of conviction against the accused.

This Court finds no reason to differ from such findings.

19. A feeble argument was made by Mr.Mohapatra

that at least the sentence imposed should be reduced.

This Court is not willing to accept such contention

because considering the young age of the victim, which

is 8 years at the relevant time, the act committed by

the accused can only be described as barbaric and a

product of extreme perversity of mind. Undoubtedly,

the act must have been traumatic for the victim and

left an indelible scar on her mind for the rest of her life.

20. In the considered view of this Court therefore, the

sentence also does not call for any interference

whatsoever as this Court finds that the trial Court has

rightly sentenced the accused to 7 years R.I.

21. In the result, the appeal fails and is therefore,

dismissed. The accused-Appellant being on bail his

bail bonds be cancelled and necessary warrant be

issued to take him to custody forthwith to serve the

remaining part of the sentence.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera