Partly allowed

Beda@Sanjeeb Mallik v. State

Orissa HC4 May 2017CRLA/368/2011

Case brief

AI extract

What is this about?

The Orissa High Court affirmed the conviction of the appellant for rape and other offences. The court held the trial court's reliance on prosecutrix's testimony was proper given medical evidence and spontaneity of disclosure. The substantive sentence of 10 years was reduced to the minimum of 7 years under Section 376 IPC, deemed appropriate absent aggravating factors.

What did the court decide?

Conviction upheld; sentence of 10 years reduced to 7 years R.I. for Section 376 IPC; fine maintained at Rs.10,000.

Beda@Sanjeeb Mallik Vs State — Orissa HC (2017) — LawSathi Research

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ORISSA HIGH COURT, CUTTACK

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CRLA NO. 368 OF 2011

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From the judgment dated 24.01.2011 passed by Shri B.P. Dutta, Addl. Sessions Judge, Boudh in S.T. No.11 of 2008(A).

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Beda @ Sanjeeb Mallik .....…. Appellant -VersusState of Orissa ……… Respondent For appellant - Mr. J.K. Panda, Advocate. For respondent - Mr. P. Pattnaik, Additional Government Advocate

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PRESENT:-

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THE HON’BLE MR. JUSTICE SATRUGHANA PUJAHARI

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------------------------------------------------------------------------------------Date of Judgment : 04.05.2017

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S.PUJAHARI, J. Through this appeal, the appellant has called in question his conviction and sentence for the offences under Sections 376, 506 and 341 of the Indian Penal Code, 1860 (for short “the IPC”) as recorded by the learned Addl. Sessions Judge, Boudh vide judgment dated 24.01.2011 in S.T. No.11 of 2008(A) sentencing him to undergo R.I. for ten years and to pay a fine of Rs.10,000/-, in default, to undergo R.I. for a further period of two years, R.I. for two years and S.I. for one month respectively with a order that the substantive sentences are to run concurrently.

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2. According to the prosecution case, the prosecutrix (P.W.1), a young girl of 15 years of age (according to the medical

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evidence, the age was around 17 years) was subjected to rape by the appellant on 01.05.2007. The prosecutrix and her cousin sister – Gitanjali Sandha (P.W.2) had been to Pakhaniapali ridge of village- Sanajhankarpalli to attend the call of nature. On that day, the prosecutrix was in the house of her sister in that village. While the girls after attending the call of nature enroute home, the present appellant caught hold of the prosecutrix, physically lifted and carried her to a nearby bush where she was subjected to forcible sexual intercourse. The companion of the appellant, namely, Ramaji Bisoi obstructed P.W.2 and criminally intimidated her not to shout to facilitate appellant to commit the bestial act. However, P.W.2 escaped and rushed to her house, informed the inmates about that horrendous occurrence. After satisfying his sexual appetite the appellant left the victim high and dry. The crestfallen victim being in pains, unable to walk properly, wobbled home and on the way she come across her mother, sister, P.W.2 and few others of the vicinity who being informed by P.W.2 were searching her. The prosecutrix narrated before them that the appellant sexually ravished her despite her visible protests and that she could not raise alarm as her mouth was gagged and the appellant had threatened her to kill if she venture to escape and raise alarm. On the next morning F.I.R. (Ext.1) was lodged at Sagada Police

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outpost under Manmunda Police Station whereafter the case was registered at Manmunda Police Station, investigation commenced, the prosecutrix was referred for medical examination, her wearing apparels (M.Os.I to V) were seized, the appellant was arrested, also referred for medical examination, his wearing ‘Lungi’ (M.O.VI) was also seized. All seized apparels were sent for chemical examination and after completion of investigation charge-sheet was laid against the present appellant and his companion under Sections 341, 323, 376(2)(g) read with Section 34 of IPC. The case having been committed to the trial court, the trial court framed charge under Sections 341, 506 and 376 of IPC against the present appellant and under Sections 341, 506, 376 read with Section 109 of IPC against his co-accused. The appellant pleaded not guilty to the charge. However, when the appellant jumped bail and absconded, his case was split-up on 09.03.2009. Hence, the separate trial and judgment.

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3. Prosecution, in support of its case, examined apart from the prosecutrix, her parents and relatives, doctor and the Investigating Officer (P.Ws.1 to 9). Prosecution has also produced the seized wearing apparels of the prosecutrix besides the ‘Lungi’ of the appellant (M.Os.I to VI). The appellant in his

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statement under Section 313 of Cr.P.C. denied the prosecution allegation, but examined none.

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4. The learned counsel for the appellant contended that the version of the prosecutrix, who was aged about 17 years according to the medical evidence, being not inspiring confidence, the learned trial court ought not have relied upon such tainted testimony to convict the appellant in a serious case of this nature.

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5. Per contra, the learned Addl. Government Advocate contended that the learned trial court making thread bare discussion of the evidence of the prosecution witnesses and also taking note of settled law, having written well reasoned judgment of guilt of the appellant, the same warrants no interference in this appeal.

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6. To appreciate the rival contentions raised at the Bar, I have carefully scrutinized the evidence of P.W.1 keeping in mind the settled principle of law laid down by the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vrs. State of Gujarat, AIR 1983 S.C. 753 wherein it has been held as follows :-

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“A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members,

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relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in-assurance that the charge is genuine rather than fabricated.

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On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basis infirmity, and the ‘probabilities-factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification; Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the ‘probabilitiesfactor’ is found to be out of tune.

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Overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the version narrated by the witnesses.”

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7. The prosecutrix (P.W.1) in her statement recorded at

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the trial which is in tune with her earlier statement recorded under Section 164 of Cr.P.C., has vividly narrated the manner

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in which the appellant forcibly subjected her to that bestial act of lust despite her protest near a bush, after taking her forcibly in his arm. She has remained firm in her such version despite searching cross-examination. The version of the prosecutrix has been amply corroborated by her friend (P.W.2), her brother-inlaw and other relatives (P.Ws.3 and 4). Admittedly, on the relevant day the prosecutrix and her mother had been to the house of her son-in-law (P.W.3) to attend a family ceremony. While in her sister’s house the prosecutrix had been to attend the call of nature where the alleged incident occurred. P.W.2 being at the spot from where the prosecutrix was forcibly taken, has given an vivid narration of the events. P.W.4 has affirmatively stated that the villagers used to go to that place to attend the call of nature. The evidence of all such witnesses remained unshaken despite searching cross-examination. P.W.8, the Gynaecologist of District Headquarters Hospital, Boudh, before whom the prosecutrix was produced on 04.05.2007 by the Investigating Officer had the occasion to examine the prosecutrix where he has noticed the victim had altogether 28 teeth, she reached puberty approximately two years back and on P.V. examinations he has observed the

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following:-

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“(2) P.V. Examination :-

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Uterus size could not be pulpated properly due to tenderness.

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(3) Cervix – Healthy with transverse slit nulliparous

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(4) Hymen – ruptured, Vagina – two fingers tight Rugocity – absent. There are bruise of 1 cm. which bleeds on P.S. Examination at 6 O’ clock position near fourchetty.

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No other external injury, stain or foreign body or bair found on her body.”

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The doctor has opined that the prosecutrix might have been raped as there was a small bruise or abrasion on vaginal orifice. With reference to X-ray Plate Nos. L 228, L 229, L 230 and L 231 the doctor opined that the victim was around 17 years old. In essence, the doctor has opined that the prosecutrix was subjected to rape, there being bruise of 1 cm. which places on P.S. at 6 O’ clock position near fourchete. The chemical examination report, Ext.16 revealed human bloodstain in the undergarments of the victim. Here, prosecutrix deposed about the performance of forcible sexual intercourse on her by the appellant and her such evidence has remained firm and unshaken in the incisive cross-examination. The doctor has also noticed bleeding with fresh injury which suggests a case of rape. On thoughtful consideration, I find that in the crossexamination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her reputation at stake.

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Opinion of the doctor that rape appeared to have been committed was based on injuries on private parts of the prosecutrix. Thus, the medical evidence lends absolute assurance to the version of the prosecutrix that she was subjected to rape by the appellant. To constitute the offence of rape, penetration, however slight, is sufficient. [ See:- (1999) 16 OCR (SC) 274 (Ranjit Hazarika vrs. State of Assam) ]. The doctor having noticed an old rupture hymen, it is contended by the learned counsel for the appellant that the victim being around 17 years and habituated with sexual intercourse, it is unsafe to place reliance on her testimony. It is well settled law that even in cases where there is some acceptable material to show that the prosecutrix was habituated to sexual intercourse, an inference that she is untrustworthy does not appeal to the judicial conscience inasmuch as even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma can be cast against her. After all, it is the accused and not the victim who is on trial. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant.

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Hence, I am unable to agree with the learned counsel for the appellant that she would falsely implicate the appellant in a serious allegation of this nature where there is nothing to show that she has any strong motive or animus to falsely inculpate the appellant. The prosecutrix of a sex offence is a victim of crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated from other independent sources, particularly when the medical evidence and evidence of the prosecutrix inspires confidence. Though no corroboration is necessary in this particular scenario, her evidence has been well corroborated from the evidence of P.Ws.2 and 4 besides the medical opinion. On her first opportunity the prosecutrix when met P.W.2 and other inmates of her sister’s family she divulged before them as to how she was sexually ravished. Such immediate spontaneous conduct of the prosecutrix in disclosing about the incident before them is admissible under Section 6 of the Evidence Act as res gestae . It is a spontaneous statement connected with the fact in issue and there was no time interval for fabrication or concoction. It is also admissible under Section 8 of the Evidence Act. The version of P.W.2 and other prosecution witnesses are also admissible under Section 157 of the said Act. It is settled law that the Courts must, while evaluating evidence, remain

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alive to the fact that in a case of ‘rape’ no self respected woman

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would come forward in a Court just to make a humiliating statement against her honour, such as, is involved in the commission of rape on her. In cases involving sexual molestation, suppose considerations which had no material affects on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless discrepancies are such which are of fatal nature be allowed to throw out an otherwise reliable prosecution case.

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[ See:- State of Punjab vrs. Gurmeet Singh and others, (1996) 2 OCR (SC) 293].

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8. The Court while appreciating the evidence of a

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prosecutrix may look for some assurance of her statement to satisfy its judicial conscience since she is a witness who is naturally interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands on a par with the evidence of an injured witness. Just as a witness who has sustained some injuries in the occurrence which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of the victim of a sexual offence is entitled to a great weight even in absence

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of corroboration to her version. It must not be overlooked that a woman or girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is, therefore, most undesirable to test her evidence with a pinch of suspicion. Inference have to be drawn from a given set of facts and circumstances “with realistic diversity” and not “dead uniformity”. The learned trial court has discussed the evidence thread bare in the backdrop of such settled law on the subject and has arrived at an irresistible conclusion that the prosecutrix herein is a most reliable witness on whose testimony implicit reliance can be placed she having no motive to inculpate the appellant. This Court while re-evaluating the evidence brought on record did not notice any basic infirmities in the prosecution case leveled against the appellant and the probabilities factor do not render it unworthy of credence. That apart, I find intrinsic truth in her version. The prosecutrix had been to her sister’s house to attend a family function where she was subjected to rape. She had no prior acquaintance with the appellant and no reason to implicate a person of that village at the stake of her reputation. She is a spinster and under no circumstances she would endanger her future by falsely implicating another. She was below 16 years of age as held by the trial court after a thorough examination of materials placed

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on record. No iota of evidence brought on record in the crossexamination that she was more than 16 years old and it was a consensual sexual intercourse. When the evidence of the prosecutrix considered from all angles, no probability of falsely implicating the appellant is found and, therefore, there is no reason to interfere with the conclusion of the learned trial court that it was the appellant who subjected the victim to rape by committing a bestial acts of lust.

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9. But, so far as the sentence imposed is concerned, the trial court appears to have imposed a sentence more than the minimum under Section 376 of IPC without any justifiable reasons against the appellant. No doubt, the appellant committed rape on the victim who is less than 16 years of age while she had been to defecate, and the same was a bestial act. For such bestial act, the minimum sentence of seven years imprisonment having been provided and there being no aggravating circumstances to impose the sentence more than the minimum, this Court is of the view that there was no justifiable reason to impose the sentence more than the minimum under Section 376 of IPC. Hence, this Court is inclined to reduce the substantive sentence of imprisonment to 7 (seven) years from 10 (ten) years R.I. imposed by the learned trial court with the sentence of fine imposed, but reducing the

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default sentence to one year in the facts and circumstances of the case. Accordingly, while upholding the conviction of the appellant under Sections 376, 506 and 341 of IPC and maintaining the sentence under Sections 506 and 341 of IPC, he is sentenced to undergo R.I. for seven years instead of ten years and to pay a fine of Rs.10,000/-, in default, to undergo R.I. for a further period of one year under Section 376 of IPC with further order that the substantive sentences shall run concurrently.

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10. With the aforesaid modification in the sentence, this criminal appeal stands dismissed.

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Orissa High Court, Cuttack, The 4^th day of May, 2017 /MRS

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……………………..… S.Pujahari, J.

Beda@Sanjeeb Mallik v. State

Case brief

What is this about?

What did the court decide?

Beda@Sanjeeb Mallik v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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