Abhimanyu Behera Vs. State of Orissa - Court Judgment

P.K. Tripathy, J.

1. Heard further argument, hearing is concluded and the judgment is as follows.

2. Accused faced the trial in the Court of Additional Sessions Judge, Balasore in S.T. Case No. 32/94 of 2000 arising out of G.R. Case No. 208 of 1999 of the Court of J.M.F.C, Balasore for the charge under Section 376, I.P.C. on the allegation that on July 20, 1999 while the victim girl (P.W. 5), then aged about only 7 years, was returning from the river after taking bath, she was subjected to rape by the accused. To substantiate the charge, prosecution relied on the evidence of nine witnesses and the documents marked Exts. 1 to 10 besides the 'chadi' of the victim girl marked M.O. 1. Amongst the witnesses, as noted above, P.W. 5 is the victim girl, P.W. 1 is the father and P.W. 6 is the mother of the victim girl, P.Ws. 2 and 3 are the co-villagers of the parties who witnessed to the seizure of the 'chadi' under Seizure List - Ext. 2. P.W. 4 is the doctor who examined the accused on 18-11-1999 after his p-rest on 17-11-1999 and proved the Medi I Report - Ext. 3. P.W. 7 is the doctor (sic) examined the victim girl on police reauisition on 22-7-1999 and Droved the Medical Report - Ext. 4, the Ossification report - Ext. 5 and the Radiologist's report - Ext. 6. P.Ws. 8 and 9 are the two police officers who investigated into the case.

3. Accused took the plea of denial to the allegation and at the same time suggested to the witnesses in course of the cross-examination that a marriage proposal between him and the niece of P.W. 1 was turned down by him and as a retaliation to that a false case was fabricated against him. In support of that plea, accused examined one Sasanka Behera (P.W. 1), who described himself to be the son of the cousin of P.W. 1.

4. It is available from the lower Court's record that though the occurrence took place on 20-7-1999 at about 11 a.m., but because of absence of P.W. 1 from the house the incident was reported to the police in the evening on that date and that is how the delay has been explained by the prosecution. It also reveals from the evidence of the Investigating Officer and the Case Diary that after the occurrence, accused was found absconding and he could be apprehended on 17-11-1999 and, therefore, his examination by the doctor could be requisitioned only on 18-11-1999.

5. Learned Additional Sessions Judge took note of the fact that P.W. 5 fully supported the case of the prosecution and notwithstanding she being a child witness, her testing under Section 118 of the Evidence Act was sufficient enough to hold that she was competent to depose and accordingly oath was administered on her. By the date of examination as witness, P.W. 5 was nine years old. On appreciation of the evidence of P.W. 5 and P.W. 7 besides the medical report and the corroborating evidence of P.Ws. 1 and 6, learned Addl. Sessions Judge recorded the finding that allegation of rape is proved against the accused-appellant. So far as the defence plea of fabrication of false case and the evidence of D.W. 1, he disbelieved the same. On the basis of such findings, learned Addl. Sessions Judge convicted the accused for the offence under Section 376, I.P.C. and sentenced him to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 1,000/- (one thousand).

6. Learned Counsel for the appellant argues that evidence of P.W. 5 is not safe to be relied on inasmuch as she is a child witness and carried a tutoring of her parents to victimise the accused because of latter's refusal to agree to the marriage proposal. That aspect has been detaily considered by the trial Court. After perusing of the evidence of record, this Court does not find any illegality or error in appreciating the evidence of P.W. 5 by the trial Court in support of proof of the charge under Section 376, I.P.C. Under such circumstance the aforesaid argument of the appellant is not meritorious and worthy of consideration.

7. Learned Counsel for the appellant states that the opinion of P.W. 7 that the injury on the private part of the victim girl could be possible by a peg is sufficient to entertain doubt on the veracity of the prosecution's allegation so as to grant benefit of doubt in favour of the accused. That opinion of the doctor reads as hereunder:

No spermatozoa was found on examination of the vaginal swab of the victim girl. Whatever I found during the examination of the victim girl, I have reflected the same in my report. The cause of injury has not been mentioned in my report. If a Klla (peg) will be pushed into the vagina accidentally, the Injuries mentioned In Ext. 1 may be sustained by a girl. It is not a fact that I have mentioned the age of the injuries in my report (Ext. 4) placing reliance on the information provided by the police. I have not taken the signature of the victim girl on Ext. 4 as the victim was the minor. But for caution I have taken the signature of the father of the victim girl on the body of Ext. 4. I did not know the father of the victim girl earlier. It is not a fact that I have not examined the victim girl. It is not a fact that I have created Ext. 4 of the purpose of this case.

The above quoted opinion does not ipso facto mean that the injuries found on the private part of P.W. 5 occurred due to a piercing of a peg. The possibility, which was opined, cannot be a basis to entertain doubt on the truthful version of P.W. 5 or the corresponding opinion of P.W. 7. Under such circumstance, that contention also is devoid of merit.

8. Learned Counsel for the appellant further argues that it transpires from the evidence of P.W. 6, the mother of the victim girl, that P.W. 5 was tutored to go to the river in an unusual path to take bath so as to eliminate any possibility of any eye-witness to the occurrence. That argument is selfserving to the accused, inasmuch as there was no apprehension to P.W. 5 to move on the path in which she proceeded. No doubt can be entertained on her conduct for moving in the path other than another path. Accordingly the aforesaid argument of the appellant is also of no merit. No other contention is raised by the appellant while challenging to the order of conviction.

9. Learned standing counsel argues that the offence alleged against the accused being under Section 376(2)(e), I.P.C., minimum punishment should have been for a period of ten years imprisonment. Such a contention, at this belated stage, is not entertainable, inasmuch as the stage of framing of charge the offence alleged against the petitioner was under Section 376, I.P.C. At the time of hearing of argument and hearing on the question of sentence no such contention was raised by the prosecution and, above all, the State has not preferred any appeal as against inadequacy of sentence awarded to the accused. Learned Counsel for the appellant further argues that notwithstanding the above lacuna of the prosecution, learned Addl. Sessions Judge has assigned reason for imposing a lesser sentence and that circumstance be taken into due consideration. It appears from paragraph 43 of the impugned judgment that learned Addl. Sessions Judge has taken into consideration the facts and circumstances of the case and the age of the convict to take a lenient view. Under such circumstance, when the petitioner has almost served the sentence, it is not proper for this Court to enhance the sentence.

9.1 For the reasons indicated above, the Jail criminal appeal is dismissed without interfering with the quantum of sentence, as argued by learned standing counsel.