Nilanchal Panigrahi vs State of Orissa

L. Mohapatra, J.—The appellant having been convicted for commission of offence u/s 376(2)(f) of the Penal Code and having been sentenced to imprisonment for seven years has preferred this appeal against the order of conviction and sentence.

The case of the prosecution, in brief, is that the victim girl who is aged about seven years was picking rag materials near Venkateswar temple, Berhampur on 6.5.1998. At that point of time the accused-appellant persuaded her to come with him so that he would give her some polythene bags. Lured by the accused, the victim girl accompanied him to a nearby delapidated house and it is alleged that the accused in the said house forcibly removed the under-garments of the victim girl and performed sexual intercourse with her causing injuries not only on per private part but also on the other part of the body. It is further alleged that after the incident the victim girl returned home weeping and narrated the incident to her mother. Some other ladies who were present went in search of the accused along with the mother of the victim girl and nearby Ramalingam tank the victim girl identified the accused coming from the opposite direction. The accused was caughthold of by the ladies and taken to the Town Police Station, It is also alleged by the prosecution that accused first requested the ladies to leave him and offered money, but when this did not work, he tried to run away. The authorities in the Town Police Station advised the mother of the girl to report at the Mahila Police Station and accordingly the report was lodged. On completion of investigation, charge-sheet was submitted for commission of offence under the aforesaid Section. During trial, the accused pleaded total denial of the prosecution allegations and took the plea that the victim girl and her mother were stealing vegetable from his shop and when he caught them, this false case was foisted against him.

In order to bring home the charge, the prosecution examined 11 witnesses out of whom P.W. 3 is the victim girl, P.W. 4 is her mother, P.W. 7 is the Assistant Professor of Medical College, Berhampur who examined the victim girl and P.W. 1 is the Investigating Officer. Relying on the evidence of those witnesses, the learned Sessions Judge convicted the appellant for commission of offence u/s 376(2)(f) of the Penal Code.

The learned counsel appearing for the appellant challenging the findings of the learned Sessions Judge submitted that the story of rape as advanced by the prosecution cannot be believed even on the basis of the evidence available on record as the entire story advanced by the prosecution had already been told to the doctor, P.W. 7 who examined the victim girl and the report of the doctor examining her is the result of bias. The learned counsel for the appellant further submitted that so far as the accused is concerned, the evidence on record indicate that his pant had been seized and sent for examination, but neither blood nor semen stains were found on the wearing apparels of the accused. On the basis of the aforesaid submission, the learned counsel prays for setting aside the judgment of the trial Court.

The learned Addl. Govt. Advocate, on the other hand, submitted that in view of the statement of the victim girl which finds corroboration from the medical evidence there is hardly any scope to interfere with the order passed by the learned Sessions Judge.

In a case of this nature, the Court is required to look into the evidence of the victim girl and the medical examination report and if the allegation made by the victim girl finds support from the medical report, it may not be required for the Court to look for evidence of any other independent witness in support of her allegation, In the present case, the victim girl was examined as P.W. 3 and in her deposition she has categorically stated that while on the date of occurrence she was collecting discarded polythene bags near Tirupati Temple the accused came there and told her that he has got some empty tin containers. Then he took her to a corridor adjoining the temple, removed her clothes and forcibly committed sexual intercourse on her as a result of which she sustained bleeding injury on her private part and shouted "Ama, Ama". Hearing her hulla when one old man and one old woman came there, the accused ran away from the spot. Thereafter she went to her home and told the incident to her mother. It further appears from her evidence that she, her mother and two other ladies went in search of the accused and near Ramalingam tank she saw the accused. On being identified by the victim girl, the other ladies caughthold of the accused and brought him to the Town Police Station. There is nothing in the cross-examination to disbelieve her statement so far as the evidence with regard to sexual assault on her is concerned. P.W. 7 who examined her found the following injuries on the private part as well as other parts of the body :

"External Injuries :

(i) Scratch abrasions with light brown scab over it present over spinal right scapula of back in an area of 3.5 cm x 0.5 cm.

(ii) Abrasion 2.5 cm x 0.5 cm present over lower end of right scapula on the back.

(iii) Abrasion 2 cm x 1 cm present at medical end of right side back at the level of second thorasic vertebra with light brown scab over it. All the external injuries on the body are of same duration and simple in nature and might have been caused by coming in contact with hard rough object within 24 to 36 hours. The age of the injuries were within 24 to 36 hours.

Examination of the Private Part are as follows :

Vela is healthy. No injury on the surface present. No public hair grown. The libia majura is apposed, Libia minora and in between space on both sides are inflame, contused and swollen. The hymen is rapture at 3 O'' Clock and 6 O'' Clock position, inflame, swollen and blood oozing scantly from it. Fortehette is intact but inflamed and contused. Scanty whity discharge present over the fortchette area. Vaginal introttus is not admitting tip of little finger. Vaginal canal is intact. No foreign body or loose hair present on it. Difficulty in separating the thighs felt and seems painful,

*** *** *** 7. Investigation :

Vaginal smear examination :

Vaginal apiteelial cells fused, R.Bs. present poss cells plently present, no bactria spermatoza and gonoccoccia present.

X-ray examination report :

X-ray of the girl was taken vide film No. 1636 to 1639 dated 8.5.98. The films were received in the deptt. of F.M.T. on 11.5.98. On examination of the films I came to the opinion that :

(i) The victim girl has several external injuries at her back and also on her private part.

All the injuries are of same duration and they were 24 to 36 hours old.

(ii) Her hymen istorn recently with signs of inflammation and oozing of blood on touch.

(iii) The age of the victim girl from her physical, dental and radiological examination is within 7 to 8 years.

(iv) The Genital examination findings are consistent with attempted forceful penetration of a male genital organ."

On perusal of the medical examination report, it is clear that P.W. 7 found injuries on the body of the victim girl as well as on her private part confirming her statement that there was attempt of forcible penetration of a male genital. In view of the evidence of the victim girl and P.W. 7, I did not go to the discrepancies pointed out by the learned counsel for the appellant which relate to the incident that took place after the occurrence as such discrepancies are not material for the purpose of this case. The evidence of the victim girl being corroborated by medical examination report, there is no reason for this Court to differ with the findings arrived at by the trial Court.

In view of the reasons stated above, I do not find any merit in the appeal and the same stands dismissed.