PRAKASH KANHAR vs STATE OF ORISSA

S. K. SAHOO, J.

It is a case of rape of an eight year old girl child. She had been to jungle to collect mushroom in one fine morning. It was just like any other day for

her. She was unaware that the appellant’s vulture eyes were waiting there for preys. Finding her alone, the appellant did not spare the innocent

helpless child in pursuit of the sexual pleasure least bothered about the emotional, psychological and physical harm likely to be caused on the child. An

uncut diamond was smashed to pieces. Due to the perverse lust for sex of the appellant, the disastrous effect of the crime on the mind of the child is

likely to remain for lifelong and the catastrophe which had befallen her will haunt her forever. The unfathomable misery and grief will last till end of

her life and the ripple effect will be unceasing. The appellant not only violated the victim's privacy and personal integrity but destroyed the whole

personality of the victim and degraded her very soul.

The appellant Prakash Kanhar faced trial in the Court of learned Asst. Sessions Judge, Balliguda in S.T. Case No.10 of 2007/S.T. 25 of 2007

(D.C.) for offence punishable under section 376(2)(f) of the Indian Penal Code on the accusation that on 28.08.2006 at about 8.00 a.m., he committed

rape on the victim who was aged about eight years inside a jungle of village Penagaberi. The learned trial Court vide impugned judgment and order

dated 30.01.2010 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for a period of ten years and

to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for a period of one year more under section 376(2)(f)

of the Indian Penal Code.

The prosecution case, as per the first information report lodged by Smt. Ratni Pradhan (P.W.3) before the officer in charge of Tikabali police

station on 30.08.2006 is that the victim who was her daughter and aged about eight years had gone to Penagaberi jungle on 28.08.2006 at about 8.00

a.m. for collecting mushroom and the appellant followed the victim and took the victim inside the jungle and opened her pant and his own pant and

committed rape on her on a stone. The victim cried aloud and the appellant threatened her not to disclose about the incident before anybody and

thereafter he left the place. The victim returned back home but out of fear she did not disclose before anybody. When the informant found the victim

was limping, she confronted her about the difficulty and then the victim disclosed about the occurrence and accordingly, the first information report

was lodged.

P.W.6 Aswini Kumar Nayak, officer in charge of Tikabali police station after receipt of the written report from P.W.3 Ratni Pradhan, registered

Tikabali P.S. Case No.61 dated 30.08.2006 under section 376(2)(f) of the Indian Penal Code and took up investigation. During course of investigation,

he examined the victim, seized wearing apparels of the victim and sent the victim to District Headquarters Hospital, Phulbani for her medical

examination. He visited the spot and arrested the appellant on the next day and the appellant was sent to Tikabali P.H.C. for medical examination.

The blue colour trouser of the appellant was seized and he was forwarded to the Court of learned J.M.F.C., G. Udayagiri for commission of offence

under section 376(2)(f) of the Indian Penal Code. On 02.6.2006 the victim was sent to M.K.C.G. Medical College and Hospital, Berhampur for her

medical examination and the investigating officer received the medial report of District Headquarters Hospital, Phulbani on 02.09.2006. On 19.09.2006

as per the direction of the Superintendent of Police, Phulbani, P.W.6 handed over the charge of investigation to Sri Mangulu Nayak, S.I. of police,

Tikabali police station who after completion of investigation submitted charge sheet on 27.12.2006 against the appellant under section 376(2)(f) of the

Indian Penal Code.

During course of trial, the prosecution examined eight witnesses. P.W.1 Prasanta Kumar Digal was the home-guard attached to Tikabali police

station and is a witness to the seizure of command certificate as well as blue colour trouser of the appellant. P.W.2 is the victim and she stated about

commission of rape on her by the appellant and also her disclosure before her mother (P.W.3).P.W.3 Smt. Ratni Pradhan is the mother of the victim

and she stated about the disclosure made by the victim about the occurrence. She is also the informant in this case. She stated that one frock and one

chadi of the victim which the victim was waring at the time of occurrence were seized by police which were marked as M.O.I and M.O.II

respectively. P.W.4 Kadangi Pradhan has not stated anything about the prosecution case. P.W.5 Abhimanyu Pradhan stated that the informant

disclosed before him as well as before the other villagers regarding the commission of rape by the appellant on the victim and after knowing the same,

he along with the villagers proceeded to the house of the informant and found the victim was unable to walk and thereafter, the victim was shifted to

the hospital. He is a witness to the seizure of wearing apparels of the victim under seizure list Ext.3. P.W.6 Aswini Kumar Nayak was the officer in

charge of Tikabali police station and he is the investigating officer.

P.W.7 Dr. Sangita Das was the Asst. Surgeon attached to the District Headquarters Hospital, Phulbani who examined the victim on police requisition

on 31.08.2006 and noticed injury on her person and submitted her report Ext.13.

P.W.8 Dr. Geeta Sahu was the lecturer in F.M.T. Department, M.K.C.G. Medical College and Hospital, Berhampur and after physical, dental and

radiological examination of the victim, she opined the age of the victim was nine years (+- one year) as per her report Ext.14 The prosecution

exhibited as many as fourteen documents. Exts.1, 2 and 3 are the seizure lists, Ext.4 is the requisition for medical examination of victim, Ext.5 is the

requisition for ossification test of victim, Ext.6 is the requisition for medical examination of accused, Ext.7 and Ext.8 are the command certificates,

Ext.9 is the spot map, Ext.10 is the F.I.R., Ext.11 is the formal F.I.R., Ext.12 is the seizure list, Ext.13 and Ext.14 are the medical reports. The

prosecution proved two material objects. M.O.I is the frock and M.O.II is the chadi.

The defence plea of the appellant is that there was previous civil dispute between the parties for which case has been foisted.

The learned trial Court after assessing the evidence on record has been pleased to hold that in spite of thorough cross-examination, the defence has

not been able to shake the credibility of the evidence of P.W.2 (victim) regarding the commission of rape on her by the appellant and her evidence

gets ample support from the evidence of the doctor who medically examined the victim and so also from the evidence of P.W.3 to the effect that the

victim narrated the incident before her that the appellant committed rape on her. The learned trial Court further held that delay of two days in lodging

the first information report has been satisfactorily explained and as such the said delay is not at all fatal to the prosecution case and the prosecution

case cannot be completely discarded on that score. The learned trial Court further held that the defence plea to the effect that the case has been

falsely foisted due to previous land dispute between the family members of the victim and the family members of his maternal uncle cannot be

accepted to be trustworthy. The learned trial Court further held that the prosecution has proved that on 28.08.2006 at about 8.00 a.m. in Pakali jungle

near village Penagaberi, the appellant Prakash Kanhar committed rape on the victim when she was under twelve years of age.

Mr. Rajib Lochan Pattnaik, learned counsel was engaged as Amicus Curiae on behalf of the appellant and he was supplied with the paper book. He

was given time to prepare the case. After going through the case records, he placed the evidence of the victim and doctor as well as the impugned

judgment and contended that the evidence of the victim is not acceptable and in view of the delayed disclosure about the occurrence, the learned trial

Court has committed illegality in relying upon her evidence. Mr. Chita Ranjan Swain, learned Additional Standing Counsel on the other hand supported

the impugned judgment and contended that in view of the statement of the victim and the doctor, the prosecution has clearly proved regarding

commission of rape on the victim by the appellant. He further contended that the evidence of the victim is getting ample corroboration from the

statement of her mother (P.W.3) and therefore, no fault can be found with the learned trial Court in convicting the appellant.

P.W.2 has stated her age to be eight years when she deposed before the learned trial Court on 06.09.2007. She has stated that she was reading in

Class-IV. The doctor (P.W.8) who examined the victim on 01.09.2006 at M.K.C.G. Medical College and Hospital, Berhampur has stated that from

the physical, dental and radiological examination of the victim, she formed opinion that the age of the victim was nine years (+- one year). She has

proved her report Ext.14. The defence has not at all challenged the age of the victim and nothing has been brought on record to disbelieve the

evidence adduced by the prosecution relating to the age of the victim. Therefore, from the evidence of P.W.2, the victim as well as the doctor

(P.W.8), it is clear that the age of the victim was lesser than twelve years at the time of occurrence.

Coming to the occurrence in question, the victim has stated that on the date of occurrence while she was collecting mushroom inside Pakali jungle

near village Penagaberi, at that time the appellant lifted her with his hands to a little distance and made her lie on the ground on a piece of stone and

then forcibly opened her paint and when she raised hullah, the appellant gagged her mouth and thereafter, the appellant opened his pant and committed

rape on her and the appellant threatened her not to disclose the matter before anybody and she sustained bleeding injury on her private part due to the

commission of rape and she was unable to walk. She further stated that she came to her house slowly with most difficulty and narrated the incident

before her mother (P.W.3) that the appellant committed rape on her and she further stated about her medical examination in the District Headquarters

Hospital, Phulbani as well as M.K.C.G. Medical College and Hospital, Berhampur.

Since the victim was a child witness, the learned trial Court before recording her evidence asked some formal questions and recorded the answers

given by the victim and the learned trial Court was of the opinion that the victim was capable of understanding the questions put to her and she is able

to give rational answers and he has given a certificate in that respect. Except giving suggestion to the victim that the appellant has not committed rape

on her and that she was deposing falsely, nothing substantial has been elicited in her cross-examination to discard her evidence.

The doctor (P.W.7) has stated that on police requisition on 31.08.2006, she examined the victim and found the following injuries:-

“The labia majora was intact, posterior commissure and fourchette was intact and congested. A laceration measuring 0.5 cm x 0.5 cm was present

over the left labia minora and another laceration 0.2 x 0.2 cm was present over the right labia minora and whole of labia minora was congested.

Hymen could not be visualized due to the tender labia minora. Spermatozoa was not detected in the vaginal swab. One abrasion 1†x 0.5 cm was

present over the right scapula. Reddish brown scab was present. Abrasion 1.5†x 0.5 cm was present on the back about 1†below the right scapula.

There was spasm of the right erector spinal muscle with painful gait.†Accordingly to P.W.7, the time of the injuries was within twenty four hours to

four days of her examination and she proved her report Ext.13.

Therefore, the evidence of victim regarding commission of rape on her on a piece of stone by the appellant is corroborated by the medical evidence.

Nothing has been brought out in the cross-examination of the doctor to discard her evidence. The victim has disclosed about the incident before her

mother (P.W.3) who has stated that after three days of the occurrence, the victim disclosed her that the appellant committed rape on her. She further

stated that she took her daughter to the house of the appellant and confronted the appellant who confessed his guilt. Therefore, not only the evidence

of the doctor but also the evidence of the mother of the victim corroborates the version of the victim relating to commission of rape.The occurrence in

question took place on 28.06.2006 and the first information report was lodged on 30.08.2006 but the material has come on record that initially the

victim did not disclose about the occurrence as she was threatened by the appellant and when her mother detected her pain and confronted her about

the occurrence, she disclosed about the same. Therefore, in my humble opinion, the learned trial Court was justified in holding that the delay of two

days in lodging the first information report has been satisfactorily explained and it is not at all fatal to the prosecution and the prosecution case cannot

be completely discarded on that score.

The blood and semen stains could not be detected on the wearing apparel of the victim as per the chemical analysis report but that cannot be a ground

to discard the prosecution case particularly when the evidence of the victim is clear, cogent and trustworthy.

In view of the forgoing discussions, I am of the view that not only the prosecution has established that the victim was below twelve years of age at

the time of occurrence but has also proved that the appellant has committed rape on the victim on 28.08.2006. There is no infirmity or illegality in the

impugned judgment and the sentence imposed by the learned trial Court is also the minimum sentence which is prescribed for such offence. Having

played with the life of a child, the appellant does not deserve any leniency in the matter of sentence. Therefore, I am not inclined to interfere with the

conviction of the appellant under section 376(2)(f) of the Indian Penal Code and the sentence passed thereunder.

In view of the enactment of the Odisha Victim Compensation Scheme, 2017, keeping in view the age of the victim at the time of occurrence and

the nature and gravity of the offence committed and the family background of the victim, I feel it necessary to recommend the case of the victim to

District Legal Services Authority, Kandhamal to examine the case of the victim after conducting the necessary enquiry in accordance with law for

grant of compensation. Let a copy of the order be sent to the District Legal Services Authority, Kandhamal for compliance.

Lower Court's record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action.Before

parting with the case, I would like to put on record my appreciation to Mr. Rajib Lochan Pattnaik, the learned Amicus Curiae for rendering his

valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees

which is fixed at Rs.2,500/-. Accordingly, the Jail Criminal Appeal standsdismissed.