Orissa High Court
Kalia @ Prakash Sahu vs State Of Odisha on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.507 of 2019
In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 21st May, 2019 passed by the learned 3rd
Additional Sessions Judge-cum-P.O., Children's Court, Cuttack in
Spl. G.R. Case No.74 of 2014.
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Kalia @ Prakash Sahu .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Kishore Kumar Jena
(Advocate)
For Respondent - Mr.S.S.Kanungo,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing :01.05.2023: Date of Judgment: 05.05.2023
D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment
of conviction and order of sentence dated 21.05.2019 passed by the
learned 3rd Additional Sessions Judge-cum-P.O., Children's Court,
Cuttack in Spl. G.R. Case No.74 of 2014 arising out of G.R Case No.
1406 of 2014 corresponding to Choudwar P.S. Case No.218 of 2014
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of the Court of the learned Judicial Magistrate First Class (Rural)
(J.M.F.C), Cuttack.
The Appellant (accused), has been convicted for commission of
offences under section 376(2) (i) of the Indian Penal Code (in short,
'the IPC') and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (in short, 'POCSO Act') and has been sentenced
to undergo imprisonment for life which shall mean imprisonment for
remainder of the natural life of the accused and pay fine of
Rs.10,000/- in default to undergo rigorous imprisonment for two
years.
2. Prosecution case is that on 09.10.2014 around 5 p.m., the
informant (P.W.2) when returned home, he heard that the accused
committed rape upon her eight year old minor daughter in the
afternoon, when she had gone to attend the call of nature in the nearby
field. As a result of sexual assault upon the daughter of the informant
(victim), she had sustained bleeding injuries and thereafter, the
accused being confronted, abused the mother of the victim i.e. P.W.1,
who happens to be the wife of the informant (P.W.2).
On 09.10.2014 around 6.30 p.m, the father of the victim
(P.W.2) presented a written report with the Inspector-in-Charge (IIC)
of Choudwar Police Station. The IIC having received the report
treated the same as FIR and registered the case. He (P.W.13) then
directed the Sub-Inspector of Police attached to that Police Station to
take up the investigation.
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3. In course of investigation, the Investigating Officer (I.O)
examined the informant (P.W.2), his wife (P.W.1) and the victim
(P.W.3). The victim had been sent for medical examination. The I.O
then had also seized certain incriminating articles.
On completion of investigation Final Form was submitted
placing the accused to face the Trial for commission of offence under
section 376(2)(i) of the IPC and Section 6 of the POCSO Act.
4. In the Trial, the prosecution in total has examined thirteen (13)
witnesses who are P.W.1 to P.W.13. As already stated the victim is
P.W.3 whereas her parents are P.W.1 and P.W.2. The Doctors, who
had examined the victim and the accused, have been examined as
P.W.4 and P.W.11 respectively. The IIC, who had registered the case
and directed for investigation has come to the witness box at the end
as P.W.13. The prosecution besides leading the evidence by
examining the above witnesses has also proved several documents
which have been admitted in evidence and marked Ext.1 to Ext.11/1.
Out of those the important one is the FIR (Ext.2) and the Medical
Examination Report of the victim is Ext.10.
5. The plea of the accused is that of complete denial and false
implication. The accused however, has not examined any witness on
his behalf and from the side of the accused, the police requisition for
the medical examination of the accused has been admitted in evidence
and marked as Ext.A.
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6. The Trial Court going for detail security of the evidence of the
victim (P.W.3) as well as her parents P.W.1 and P.W.2 from every
possible angles has found every justification to arrive at a conclusion
that they are the truthful witnesses and therefore accepting the version
of P.W.3 standing corroborated by the evidence of P.W.1 and P.W.2
as well as the evidence of the Doctor (P.W.4), who had noted all
such features over the body of the victim has arrived at a finding that
the accused has committed rape upon the victim (P.W.2) who was
then aged in between 8-9 years. The Trial Court thus having held that
the prosecution has established the charges against the accused
beyond reasonable doubt through clear, cogent and acceptable
evidence, has convicted the accused for the said offences and
sentenced as aforesaid.
7. Learned counsel for the Appellant (accused) in view of the
evidence on record, instead of questioning the finding of the Trial
Court as to the culpability of the accused for the above offences,
confining his submission on the quantum of sentence urged that the
quantum of sentence imposed upon the accused does not
commensurate the offence. According to him, while doing so, the
Trial Court has not taken into consideration the surrounding
circumstances both as regards the commission of offence as well as
the accused. He, therefore, contended that in the obtained facts and
circumstances, through the evidence, the sentences for imprisonment
for life meaning the imprisonment for remainder of the life of the
accused and fine of Rs.10,000/- in default to further undergo rigorous
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imprisonment for two years stand too harsh and excessive which
needs to be reduced to the minimum as prescribed.
8. Learned counsel for the State-Respondent, however, contended
all in favour of the imposed sentence of imprisonment for life as well
as the fine as noted above. He submitted that it being a case of rape
upon a girl of the age of 8-9 years when there stands clinching
evidence of the victim (P.W.3) as to the sexual violence upon the
victim which receives corroboration from the evidence of the Doctor
(P.W.4) besides the parents of the victim (P.W.1 and P.W.2), the
order of sentence is not liable to be tinkered with.
9. Keeping in view the submissions made, we have carefully read
the impugned judgment of conviction. We have travelled through the
depositions of the prosecution witnesses i.e. P.W.1 to P.W.13 and
have perused the documents admitted in evidence and marked Ext.1 to
Ext.11/1.
10. The age of the victim (P.W.3) at the relevant time of the
incident was in between 8-9 years. This accused then was aged around
22 years. The accused hails from rural background and is a co-villager
of the victim. The Doctor (P.W.4), who had examined the victim, has
found that there was slight bleeding and tear on the fourchette of the
victim with hymen torn at 6 O' Clock position and margin being
reddish with bleeding on touch and tenderness in the hymen. His
evidence is that he had not noticed any other bodily injury upon the
deceased. It has been stated by the victim that accused had made her
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lie on the ground and licked her vagina and then inserted his index
finger. The accused had remained in custody from the time of his
arrest. Taking into account all the circumstances surrounding the
accused as to his age, the number of persons dependent on him etc.,
we are of the considered view that sentence of rigorous imprisonment
for a period of ten (10) years with fine of Rs.10,000/- in default to
undergo rigorous imprisonment for two years commensurate the
crime and meet the ends of justice.
11. The appeal is thus allowed in part with the modification of the
quantum of sentence to the extent as indicated above.
(D. Dash),
Judge.
Dr.S.K.Panigrahi, J. I Agree.
GITANJA Digitally signed by
GITANJALI NAYAK
(Dr.S.K.Panigrahi),
Judge.
LI NAYAK Date: 2023.05.05
17:47:53 +05'30'
Gitanjali
CRLA No.507 of 2019
