Kabi @ Kabiraj Nayak vs State Of Odisha

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 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.

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 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 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.

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.

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 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 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 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 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 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.

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.

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 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 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.

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.

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 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:

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.

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.:

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.

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:

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 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:

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.

Absence of injuries on the appellant:

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

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.

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 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).

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