Dismissed

Mithun Thakur v. State

Orissa HC10 May 2017CRLA/10/2009

Case brief

AI extract

What is this about?

This criminal appeal challenged conviction and sentence under IPC Sections 376, 366, and 343. The High Court upheld the trial court's decision, emphasizing that the victim's testimony was reliable and that absence of physical injuries or slight delay in FIR lodging did not require corroboration for conviction. The court accepted the age evidence and dismissed the appeal.

What did the court decide?

The criminal appeal was dismissed. The impugned judgment of conviction and order of sentence were confirmed.

Mithun Thakur Vs State — Writ and Judicial Review | Orissa HC (2017)

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ORISSA HIGH COURT, CUTTACK

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CRLA NO.10 OF 2009

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From the judgment and order dated 08.07.2008 passed by Shri R.K. Sahu, Addl. Sessions Judge (F.T.C.), Bhawanipatna, Kalahandi in Sessions Case No.105/48 of 2007.

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-------Mithun Thakur .....…. Appellant -VersusState of Orissa ……… Respondent For appellant - Mr. S. Mohanty, Advocate For respondent - Mr. P. Pattnaik, Additional Government Advocate

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PRESENT:-

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THE HON’BLE SHRI JUSTICE SATRUGHANA PUJAHARI

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------------------------------------------------------------------------------------Date of Judgment: 10.05.2017

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S.PUJAHARI, J. In this appeal, the appellant who has been

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convicted under Section 376, 366 and 343 of the Indian Penal Code, 1860 (for short “the IPC”) to undergo rigorous imprisonment for 7 years, 3 years and 1 year respectively, calls in question the propriety of the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, (F.T.C.), Bhawanipatna, Kalahandi in Sessions Case No.105/48 of 2007.

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2. The facts, briefly stated, are that the victim girl (P.W.6), a rustic scheduled caste spinster, had been to a place near a

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stream at the fag end of the village- Karlakot under Junagarh

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Police Station to answer the call of nature. The appellant in an erotic impulse appeared at the scene and forcibly carried her to a nearby forest. She made valiant efforts to shout and call for help, but there being none in the vicinity she succumbed to the force of the appellant and the appellant committed rape on the hopeless victim. The appellant detained her in the forest for the whole night and on the next morning took her to villageJhikipada and kept her there under confinement. On 15.05.2007 having received information as to such confinement of the victim, the father (P.W.13) and grandfather (P.W.1) of the victim rescued her. A village meeting convened, but there being no positive result, P.W.1 lodged an F.I.R. (Ext.1) at Junagarh Police Station on 19.05.2007 at about 8 p.m. whereupon Junagarh P.S. Case No.88 of 2008 under Sections 363 and 376 of IPC was registered and investigation taken up. The victim as well as the appellant was sent for medical examination under police requisitions, Ext.11. The wearing apparels of the victim (M.Os.I to III) and the wearing apparels of the appellant (M.Os.IV and V) were also seized. After completing investigation, the Investigating Officer (P.W.12) submitted charge-sheet against the appellant under Sections 376, 363 and 343 of IPC.

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3. The appellant denied the charge in entirety and advanced a further plea of false implication. To substantiate the

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allegations, the prosecution examined 13 witnesses. P.W.1 is the grandfather of the victim who lodged the F.I.R. P.W.6 is the victim while P.W.13 is her father. P.Ws.9, 10 and 11 are Medical Officers who had examined the victim, the appellant and who had conducted ossification test of the victim to ascertain her probable age. P.Ws.3 and 5 are co-villagers of the victim while P.W.4 is a person of village- Jhikipada. P.W.5 is the scribe of the F.I.R. while P.W.8 is the Headmaster of Panchayat High School, Banijhara who had proved the School Admission register showing the date of birth of the victim. P.W.12 is the Investigating Officer. The defence choose not to adduce any evidence in support of his plea of denial. Considering the oral and documentary evidence brought on record on behalf of the prosecution, the learned trial court placing absolute reliance on the evidence of the victim concluded that the appellant was guilty of offence under Sections 376, 366 and 343 of IPC and sentenced him, as aforesaid.

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4. The learned counsel for the appellant contended that when the evidence of the victim is replete with contradictions and embellishment, the medical evidence conclusively proved that the victim was over 16 years of age and when there is unexplained delay of more than five days in lodging F.I.R. and when P.W.4 has unequivocally deposed that the victim had

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disclosed before him that out of her own volition she accompanied the appellant, no offence of rape is made out.

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5. Repelling such contention, the learned counsel for the State has supported the impugned judgment of conviction and order of sentence. The contention of the learned counsel for the State is that there is no reason to discredit and discard the testimony of the victim who has stood firm in her version and nothing substantial has been elicited in the incisive crossexamination. When the evidence of the victim is inspiring confidence and found to be truthful, there is no justification not to accept the version of the victim with credence.

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6. The contention in essence of the learned counsel for the appellant is that since the testimony of the victim has not been corroborated by medical evidence or by any other clinching oral evidence, the trial court should not have on the basis of the testimony of the victim, despite delay of five days in lodging the F.I.R., convicted the appellant. But, the law is that if the victim’s statement is accepted to be truthful and believable, conviction can be based. In this regard, reliance can be placed on a decision of the Apex Court in the case of State of Maharashtra

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vrs. Chandraprakash Kewalchand Jain, AIR 1990 S.C. 658, wherein the Apex Court in paragraph-16 of the judgment has held thus :-

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“16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Sec. 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her, if the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Sec. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted.”

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Law developed on this point is very clear that conviction for rape

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can be founded on the testimony of the victim alone unless there are compelling reasons for seeking corroboration. The evidence of the victim is more reliable than that of an injured witness. A girl or a woman in the tradition bound nonpermissive society of this country would be extremely reluctant even to admit that any incident which is likely to reflect on her

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chastity had ever occurred. She would be conscious of the danger on being ostracized by the Society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabrication. In essence if the evidence of the victim (prosecutrix) does not suffer from any basis infirmity and the “probabilities factor” does not render it unworthy of credence, there is no reason to insist on corroboration. It is also settled law as held in the case of K.M.

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Narayan Amma vrs. State of Karnataka, 1994 (III) Crime 416 (SC), that when prosecutrix is held to be a reliable witness and when her evidence not only inspires confidence but is otherwise corroborated in all material particulars and when she being below the age of consent, the accused cannot escape liability merely because no marks of injury on their person suggesting resistance could be found. Similarly, absence of spermatozoa on vaginal side and absence of injuries on the penis of the accused would not be fatal to the prosecution. It would also not discredit the evidence of the prosecutrix.

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7. In this background and applying the aforesaid

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parameters, the evidence of the victim, P.W.6 is to be scanned. She has vividly described with regard to the overt act committed by the appellant. She has stated how the appellant forcibly lifted her while she was enroute home from the nearest stream where

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she had been to attend the call of nature and despite her visible

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struggle to escape, the appellant threatened her with dire consequences and succumbing to the pressure she was subjected to rape by the appellant. She has also deposed that once she was rescued by her father and grandfather, she divulged before them how despite her objection, against her consent and without her will the appellant sexually ravished her. She has identified her wearing apparels (M.Os.I and II) and stated her year of birth as ‘1994’. She has denied the defence suggestion that she was in love with the appellant and out of her own volition, had accompanied him. She has also denied that her parents having animosity with the family of the appellant this false accusation. Admittedly, the victim was subjected to medical examination on 20.05.2007. The Medical Officer has noticed no external injury on her genitalia, labia majora, labia minora posterior commeasure and vestibule were well developed and intact. Though the Medical Officer found an old rupture in hymen and 3,7’ and 11 ‘O’ clock position, there was no fresh bleeding and there was no sign of sexual intercourse. The learned counsel appearing for the appellant has challenged the evidence of P.W.6 on the ground that the same being contrary to the medical evidence is liable to be discarded as an untruthful and fragile evidence. I have given my anxious

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consideration to such contention but unable to agree with the contention of the learned counsel for the appellant because of absence of injury the testimony of the victim is to be thrown out. Admittedly, the victim was examined around nine days after the occurrence and in the meanwhile she had taken bath many a times. There is also no evidence that she has violently ravished by the appellant. Even an attempt of penetration or a slight penetration is sufficient to attract the mischief of rape. It is not always necessary that there should be complete penetration of male organ into labia majora on vulva with or without emission of semen and rupture of hymen. That being so, it is quite possible to commit legally offence of rape without causing any injury to the genitalia and leaving any seminal stains. That apart, the doctor having noticed that vagina of the victim admits one finger easily and two fingers tightly, chance of sustaining injuries is also remote. The reaction of the vaginal mucosa to a penetrating foreign body is to lubricate and, therefore, even in non-consenting intercourse there would be a certain amount of lubrication produced during the act, even if lubrication is lacking on initial penetration. The frequently repeated myth that the vagina will remain dry in non-consenting intercourse with the resulting production of serious abrasion and bruising is entirely untrue, as recorded in Taylor’s Principles and Practice

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of Medical Jurisprudence, Chapter-8 at page-76. Absence of injury on the person of the victim as well as on the rapist may not be vital to the prosecution and this cannot be a factor to rule out the allegation of rape as discussed thread bare by the trial court. In this regard, a reliance can be placed on a decision of the Apex Court in the case of Ranjit Hazarika vrs. State of Assam, (1999) 16 OCR (SC) 274, wherein the Apex Court have held as follows :-

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“xxxxx xxxxx xxxxxx The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. xxxxx xxxxx xxxxxxx To constitute the offence of rape, penetration, however slight, is sufficient.”

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8. From the aforesaid analysis, it is crystal clear that the medical evidence does not render any assistance to the appellant for the simple reason that the opinion given by P.W.10 does not totally discredit the testimony of the victim girl.

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9. Reverting to the age of the victim, her father (P.W.13) emphatically stated that the date of birth of the victim is “15.04.1994”. Prosecution had examined the Headmaster (P.W.8) of Panchayat High School, Banijora. He has proved the School Admission register vide relevant Entry No.102/930 dated 29.06.2006 in Folio No.130517 and stated that the victim, daughter of Tulsi Mangraj (P.W.13) of village- Karlakot was

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admitted into School on the basis of School Leaving Certificate issued from Banjijhar Government U.P. School. Her date of birth as reflected in the Admission register is “15.04.1994”. The Headmaster has also stated that the father of the victim girl had introduced and admitted her in the School. The relevant entries (Ext.6) and the School Leaving Certificate issued by the Government U.P. School, Banjijhar is marked as Ext.7. Nothing has been elicited in the cross-examination to discard such affirmative documentary evidence brought on record. P.W.13, the father of the victim has also stated that the date of birth of the victim is “15.04.1994”. The oral evidence of the father of the victim is in agreement with the inferences drawn from the School Admission register. That being the evidence with regard to the date of birth of the victim, the medical evidence of P.W.11 who had conducted ossification test on 22.05.2007 that the victim was in between 15 to 17 years on the date of ossification test cannot upset prosecution’s applecart on age. That apart, the date of birth given by the father of the victim and recorded in the School Admission register is in agreement with the lower limit of age ascertained from the ossification test. The learned trial court has discussed all such aspects in thread bare and I find no reason to disagree with such conclusion that the victim on the date of the rape was below 16 years of age.

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10. In such backdrop, I am unable to find any telling circumstances in the present case to disbelieve the testimony of the P.W.6. There is no pinch of evidence to show that P.Ws.1 and 13 had any axe to grind against the appellant. They being not in inimical terms with the appellant, there is no reason to doubt their testimony which is at the cost of chastity of their spinster daughter. Once the evidence of the victim is believed and the same is accepted as reliable, trustworthy and inspiring confidence and when the probabilities factor does not militate against the conduct of the victim, there cannot be any obstacle in holding the appellant had committed rape on the victim. It is to be borne in mind that the victim was less than 16 years of age on the date of occurrence. On this fact, Clause Sixthly of Section 375 of IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. The act of helplessness in the face of inevitable compulsion is not consent in law. It is also not necessary that there should be actual use of force as mere threat of use of force is sufficient to come to a conclusion that there was compulsion to obtain consent. Furthermore, the victim being below 16 years of age, even she had voluntarily left with the appellant, it cannot be presumed or assumed that she was a consenting party. However, her evidence revealed that despite her struggle to

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escape the appellant ravished her sexually, she shouted for help, but none being present near appellant she succumbed to the sexual lust of the appellant. The Apex Court in the case of Ranjit Hazarika (supra) , have held that “absence of injury on the private parts does not belie her statement as she has nowhere stated that she bled per vagina as a result of penetration. Penetration however slight is sufficient to constitute the offence of rape”. Besides, the opinion of the doctor appears to be based on “no reasons”. Such opinion cannot throw out an otherwise cogent and trustworthy evidence of the victim. Nothing has been suggested by the defence as to why she would falsely implicate the appellant. Just as a witness who has sustained some injury in the occurrence which is not found to be self-inflicted, is considered to be a good witness in the sense that she is not likely to shield the real culprit, the evidence of the victim of a sexual offence is entitled to great weight in absence of corroboration from medical evidence.

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11. Here, the evidence of the victim when inspires confidence and when her evidence does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence and when absence of injury on the person of the victim is not by itself sufficient to discard the prosecution case and particularly when she had no animosity against the

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appellant to implicate him in a serious case of this nature and where delay is self-explanatory, I am unable to accept the submission of the learned counsel for the appellant that the evidence of the victim is not worthy of credence. The plea of accused was a plea of despair not worthy of credence. After all, it is the accused and not the victim of sex crime who is on trial in the Court. [ See: The State of Punjab vrs. Gurmit Singh and others, (1996) 10 OCR (SC) 293 and State of Rajasthan vrs. Noor Khan, 2000(2) Crimes 84 (SC) ].

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12. Therefore, I am of the considered opinion that the prosecution has proved its case to the hilt and there is no basic infirmity in the impugned judgment of conviction of the trial court and the same does not call for any interference.

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13. Now coming to the question of sentence, the appellant being aged about 20 years at the time of occurrence, he cannot be said to be too young person who is unable to know the effect of the consequence of his sexual lust. Ordinarily, while dealing with a case of this nature and after being convinced about the commission of the crime, the Court has to be stern in imposing the sentence. The learned trial court has considered this aspect very carefully and has imposed the minimum sentence prescribed under the law. The commission of heinous crime like ‘rape’ does not call for any leniency. In view of the aforesaid, I

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am not inclined to modify the sentence imposed by the learned

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trial court.

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14. Resultantly, this criminal appeal fails and the same is accordingly dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed.

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L.C.R. received be sent back forthwith along with a copy of this Judgment.

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……………………..…

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S.Pujahari, J.

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Orissa High Court, Cuttack, The 10^th day of May, 2017/MRS

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Mithun Thakur v. State

Case brief

What is this about?

What did the court decide?

Mithun Thakur v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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