Dismissed

Bhalu Murmu@Galu v. State of Orissa

Orissa HC5 Aug 2021JCRLA/65/2016

Case brief

AI extract

What is this about?

Challenging consecutive sentences for rape under IPC 376(2)(i) and POCSO Act, the appellant argued against double punishment under Section 42 POCSO. The High Court held that while double conviction is permitted, punishment must be graded against the heavier offence, leading to dismissal of the appeal and confirmation of one sentence.

What did the court decide?

The Court dismissed the criminal appeal and imposed a rigorous imprisonment of ten years for the offence under the POCSO Act, directing that no separate sentence be imposed for IPC Section 376(2)(i).

Bhalu Murmu@Galu Vs State of Orissa — Child Sexual Offences (POCSO) | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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JCRLA No. 65 OF 2016

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From judgment and order dated 22.10.2016 passed by the Special Judge –cum- Sessions Judge, Cuttack in G.R. Case No. 09 of 2014.

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----------------------------
Bhalu Murmu @ Galu ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Deepak Kumar Panda
Amicus Curiae
For Respondent: - Mr. J.P. Patra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 05.08.2021

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S.K. SAHOO, J . Sexual violence on children is the most terrifying ordeal and nastiest intensifying traumatic episode that take place

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in the lives of the victims and it causes such deep physical and psychological wounds and despair that it actually requires a

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brave and courageous effort on the part of the victims to

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overcome it and fight for justice. Sometimes the victims receive family support following disclosure about the crime committed on them and sometimes they are blamed by their family members. The family members sometimes even hesitate to proceed against the abuser for the sake of family prestige and social stigma. If there is lack of psychological support and care from family, the victims suffer a long term anxiety, depression, self-mutilation, interpersonal problems, post-traumatic stress disorder and they become entrenched and their progress towards development and peace get stalled. This case depicts how a three year old girl was lured and raped by a monster like the appellant in the absence of her parents at home by cunningly separating her from her brother.

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The appellant Bhalu Murmu @ Galu faced trial in the Court of learned Special Judge -cum- Sessions Judge, Cuttack in G.R. Case No.09 of 2014 for commission of offences punishable under section 376(2)(i) of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’) on the accusation that on 21.12.2014 at about 1.30 p.m. he committed rape on the victim who was a girl aged about three years.

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The learned trial Court vide impugned judgment and order dated 22.10.2016 found the appellant guilty under section 376(2)(i) of the Indian Penal Code as well as section 6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.3,000/(rupees three thousand), in default, to undergo further R.I. for a period of one year for the offence under section 376(2)(i) of the Indian Penal Code and rigorous imprisonment for a period of twelve years and to pay a fine of Rs.3,000/- (three thousand), in default, to undergo further R.I. for a period of one year for the offence under section 6 of the POCSO Act and both the sentences were directed to run concurrently.

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The prosecution case, in short, is that on 23.02.2014 one Shanti Bage (P.W.4) presented a written report before the I.I.C., Khuntuni Police Station alleging therein that on 21.02.2014 at about 1.00 p.m. while her daughter (the victim), who was aged about three years was roaming in a nearby field, the appellant took the victim to his house luring her that he would give Namkeen Mixture to her and in his house, he committed rape on her. The victim returned home crying and

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told the incident to P.W.4 that a person who is having an amputed hand committed rape on her. P.W.4 took the victim

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with her to identify the culprit and the victim identified the appellant to be the person whose hand had been amputed to have raped her. P.W.4 marked cut injuries on the private part of the victim and the victim was feeling severe pain while urinating.

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On such report presented by P.W.4, Khuntuni P.S. Case No.14 dated 23.02.2014 was registered under sections 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act. P.W.9 Siba Charan Behera, Sub-Inspector of Police of Khuntuni Police Station took up investigation of the case in absence of the Inspector-in-charge. He examined the informant, visited the spot along with informant, prepared the spot map (Ext.12), conducted raid and apprehended the appellant and brought him to the police station. The wearing apparels of the victim as well as the appellant were seized under seizure lists Ext.3 and Ext.4 respectively and both of them were also sent to S.C.B. Medical College and Hospital, Cuttack for medical examination. The escort party produced the biological materials of the victim as well as the appellant collected by the doctor who medically examined them and those were seized under seizure lists. The appellant was arrested and he was forwarded to Court on 24.02.2014. The seized articles such as biological materials and wearing apparels of the appellant as well as the victim was

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sent to S.F.S.L., Bhubaneswar for chemical examination and the medical examination report was received and the doctor opined the age of the victim to be three to five years. On completion of investigation, P.W.9 submitted charge sheet against the appellant under sections 376(2)(i) of the Indian Penal Code and section 4 of the POCSO Act on 07.04.2014. 3. During course of trial, in order to prove its case, the prosecution examined as many as nine witnesses.

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P.W.1 Dr. Biren Xalxo was working as Senior Resident attached to F.M.T. Department, S.C.B. Medical College and Hospital, Cuttack who examined the appellant on police requisition and submitted his report vide Ext.1. He opined that there is nothing to suggest that the appellant was incapable of performing sexual intercourse.

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P.W.2 Dr. Abarnita Sethi was working as Senior

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Resident attached to F.M.T. Department, S.C.B. Medical College and Hospital, Cuttack who examined the victim on police requisition and submitted her report vide Ext.2. She noticed recent sign of penetrative sexual act on the victim.

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P.W.3 Babula Bage is the father of the victim who is

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a post occurrence witness and he is a witness to the seizure of wearing apparels of the victim vide seizure list Ext.3.

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P.W.4 Santi Bage is the informant in the case and

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mother of the victim, who stated about the disclosure made by the victim about the occurrence before her.

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P.W.5 is the victim but the learned trial Court after

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putting questions to her through the interpreter observed that she was not intelligent enough to give rational answers for which it was not possible to record her evidence.

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P.W.6 Ramesh Chandra Parida is a witness to the

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seizure of wearing apparels of the appellant vide seizure list Ext.4.

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P.W.7 Smt. Sabitri Senapati was working as S.I. of

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Police at Gurudijhatia Police Station, who on receiving instruction from the higher authorities, proceeded to Khuntuni police station and examined the victim and recorded her statement vide Ext.6.

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P.W.8 Smt. Sita Chapia, who is a neighbour of the

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appellant stated that on hearing the cries of a girl coming from the house of the appellant, she went there and saw the appellant raping the victim, which fact she disclosed to the informant as well as to other villagers.

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P.W.9 Siba Charan Behera was the Sub-Inspector of

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Police of Khuntuni Police Station and he is the Investigating Officer of the case.

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The prosecution exhibited twelve numbers of

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documents. Ext.1 is the medical examination report of the appellant, Ext.2 is the medical examination report of the victim, Exts.3, 4 and 5 are the seizure lists, Ext.6 is the statement of the victim, Ext.7 is the requisition, Ext.8 is the F.I.R., Ext.9 is the requisition, Ext.10 is the requisition, Ext.11 is the report of the S.F.S.L., Rasulgarh and Ext.12 is the spot map.

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The defence plea of the appellant was one of denial and it is pleaded that P.W.4 was teasing him as ‘Khandi’ and over this issue, there was altercation between him and P.W.4, assault and counter assault for which P.W.4 had fabricated the case.

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The learned trial Court on analyzing the evidence of

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the witnesses as well as the documents relied upon by the prosecution came to hold that the evidence of P.W.3 and P.W.4 conjointly explain the delay in lodging the F.I.R. The learned trial Court accepted the evidence of the doctor who examined the

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victim and discarded the defence plea of false implication and came to hold that the prosecution has successfully established the charges against the appellant to have committed rape on the three years old victim girl.

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Mr. Deepak Kumar Panda, learned Amicus Curiae appearing for the appellant contended that the imposition of sentence by the learned trial Court for both the offences under sections 376(2)(i) of the Indian Penal Code as well as 6 of the POCSO Act is not permissible in view of section 42 of the POCSO Act. It is further submitted that though it is the prosecution case that at the time of occurrence, the brother of the victim was playing with her but he has not been examined. He further submitted that when the victim was declared as an incompetent witness after preliminary examination, in a case of this nature, basing on the evidence of other witnesses like her mother (P.W.4) and co-villager (P.W.8), the learned trial Court should not have held the appellant guilty of the offences charged. It is further submitted that there is every chance of false implication of the petitioner in the alleged crime and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant.

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Mr. J.P. Patra, learned Additional Standing Counsel for the State, on the other hand, supported the impugned judgment and argued that even though the victim was declared incompetent by the trial Court after putting questions to her, the evidence of the mother of the victim, who has been examined as

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P.W.4 before whom the victim immediately disclosed about the occurrence so also the co-villager (P.W.8) are very clinching that it is the appellant who committed rape on the victim. Learned counsel further argued that P.W.8 also saw the victim was coming out of the house of the appellant in a crying condition and the appellant was also present there and he was found putting on his pant and this circumstantial evidence also supports the prosecution case that the appellant committed rape on the victim. According to him, non-examination of the brother of the victim is not that fatal that it would be a ground to discard the entire prosecution case. He further argued that the doctor (P.W.2) found redness and tenderness in the labia majora and labia minora of the victim and also the recent sign of penetrative sex act. He further argued that the manner in which the crime has been committed by the appellant on a three years old girl is very shocking and it cannot be said that the punishment that has been imposed by the learned trial Court is excessive and therefore, the appeal should be dismissed.

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Section 42-A of the POCSO Act provides that the provisions of POCSO Act shall be in addition to and not in derogation of the provisions of any other Act. Therefore, the legislature, in its wisdom, thought that POCSO Act would

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supplant and would be in addition to the other criminal provisions and where there was any inconsistency, the provisions of POCSO Act would override any other law to the extent of inconsistency.

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Section 42 of the POCSO Act states about ‘alternate punishment’. Where an act or omission constitutes an offence punishable under the POCSO Act and also under sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 376-A, 376C, 376-D, 376-E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

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In view of the section 42 of the POCSO Act, it is clear that even though the Court can prosecute and convict the appellant both under section 376(2)(i) of the Indian Penal Code as well as under section 6 of the POCSO Act but the Court cannot impose punishment for both the offences and can only impose punishment for the offence which is greater in degree. The choice being that of the learned trial Judge, he has to see which

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of the offences carries punishment of greater degree and accordingly impose punishment. Section 71 of the Indian Penal

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Code states that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any of such offences. Section 26 of the General Clauses Act, 1897 which deals with provision as to offences punishable under two or more enactments states that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. In view of the special provision under section 42 of the POCSO Act, the Court can prosecute and convict the appellant both under section 376(2)(i) of the Indian Penal Code as well as under section 6 of the POCSO Act but so far as punishment is concerned, the Court has to choose from the two which would obviously carry punishment of greater degree. Therefore, the imposition of punishment for both the offences i.e. under section 376(2)(i) of the Indian Penal Code and section 6 of the POCSO Act by the learned trial Court is nothing but a legal error.

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The learned trial Court appointed one Jagannath

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Balmutch as the interpreter for the victim as the victim girl was not able to understand Odia language and the interpreter was asked to question the victim in Munda language and convey to the Court in Odia language. The victim could only say her name to the interpreter but she was unable to say where she had come, what is the name of her father, her village and why she had come and what she knew about the incident. The victim remained mum to all the questions put by the learned trial Court through interpreter. Section 118 of the Evidence Act states that a child witness is a competent witness provided that she understands the questions put to her and is in a position to give rational answers to such questions. If a child witness appearing in the witness box is intelligent enough to understand the questions and able to give rational answers and the Court finds the evidence of the child witness to be reliable, the same can be acted upon. The evidence of a child witness is not required to be rejected per se, but the Court as a role of prudence considers such evidence with close scrutiny to find out its quality and reliability.

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When at the time of preliminary examination, the questions were asked through interpreter and the Court found

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that the child was not intelligent enough to give rational answers, therefore, she was held not to be a competent witness within the meaning of section 118 of the Evidence Act.

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The evidence of the mother of the victim who has been examined as P.W.4 is that on the date of occurrence, she had been to the forest to pluck leaves and returned at about 4 p.m. and her elder sister Sita Champia came to her house and she saw the victim was weeping inside the house. She asked to the victim as to what happened and the victim told her that she had received injuries in her private part (Ethi chiri hoijaichhi) and she also told that she was feeling pain. When P.W.4 asked as to who did it, she told the name of the appellant and also showed the appellant to have committed the act and the victim further told that she along with her elder brother were playing under the tamarind tree and at that time, the appellant sent her brother to bring Namkeen Mixture and then the appellant took her inside the house and committed the offence and when the victim cried,

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the appellant left her. In the cross-examination, P.W.4 has stated that she contacted her husband (P.W.3) over telephone to return to the house in the evening hours and P.W.3 accompanied her to the police station at the time of lodging the F.I.R. P.W.4 stated that the appellant was a handicapped person and she

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denied to the defence suggestion in the cross-examination that due to previous grudge against the appellant, a false F.I.R. has been lodged against him. Nothing has been elicited in the crossexamination to disbelieve the evidence of P.W.4.

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P.W.8 is another important witness for the

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prosecution and she has stated that she heard cries of a girl coming from the house of the appellant and when she went there, she saw the appellant raping the victim and when she entered, the appellant was wearing his pant and when she asked the victim about what happened, she disclosed that the appellant raped her. In the cross-examination, it has been confronted to the P.W.8 and proved through the Investigating Officer (P.W.9) that she had not stated that while she was in her house, she heard the cries and she had not stated about seeing the appellant committing rape on the victim but from her evidence, it is very clear about the presence of the victim in the house of the appellant in a crying condition and the appellant was wearing his pant and that the victim immediately disclosed about the occurrence before her.

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P.W.3, the father of the victim has stated that he had been to village Neulapur on the date of occurrence and he was informed about the occurrence by P.W.4 and on that night, he

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returned home and found the victim was having red mark in her private part and he informed it to some villagers who suggested him to report the matter to police and accordingly he along with P.W.4 and the victim proceeded to Khuntuni police station to lodge the F.I.R. He further stated in the cross-examination that the appellant was staying in that village since about one year prior to the incident. On a conjoint reading of P.W.4 and P.W.8 so also P.W.3, it is evident that the appellant is the author of the crime. The evidence of P.W.2, the doctor at S.C.B. Medical College and Hospital, Cuttack who examined the victim stated that there was redness and tenderness present in the labia majora and labia minora of the victim and on genital examination, she found there was recent sign of penetrative sex act. She further stated that considering the physical and dental status, the age of the victim girl would be around three to five years on the date of her examination. Therefore, the commission of rape on the victim by the appellant is getting corroboration from the medical evidence.

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The appellant was examined by the doctor (P.W.1),

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who also stated that the appellant was capable of performing the sexual intercourse.

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In view of the foregoing discussions and on careful analysis of the oral evidence as well as the documentary evidence on record, I am of the humble view that the prosecution has successfully established the charges under section 376(2)(i) of the Indian Penal Code as well as section 6 of the POCSO Act against the appellant beyond all reasonable doubt. However, as I have already held that the learned trial Court was committed a legal error in sentencing the appellant for both the offences i.e, section 376(2)(i) as well as 6 of the POCSO Act, I sentence the appellant to undergo R.I. for a period of ten years for the offence under section 6 of the POCSO Act. The fine amount and the default sentence which has been imposed for the offence under section 6 of the POCSO Act by the learned trial Court remains unaltered. No separate sentence is imposed for the conviction of the appellant under section 376 (2)(i) of the Indian Penal Code in view of section 42 of the POCSO Act.

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In view of the enactment of the Odisha Victim

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Compensation Scheme, 2012 which was revised by Odisha Victim Compensation (Amendment) Scheme, 2018 and 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, I feel it necessary to recommend the case of the

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victim to District Legal Services Authority, Cuttack to examine

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the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation under the aforesaid Schemes.

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Let a copy of the judgment be sent to the District Legal Services Authority, Keonjhar for compliance.

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

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Before parting with the case, I would like to put on

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record my appreciation to Mr. Deepak Kumar Panda, 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

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fixed at Rs.5000/- (rupees five thousand only).

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Accordingly, the criminal appeal being devoid of

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merits, stands dismissed.

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............................ S.K. Sahoo, J.

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Orissa High Court, Cuttack

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The 5^th August 2021/Pravakar

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Bhalu Murmu@Galu v. State of Orissa

Case brief

What is this about?

What did the court decide?

Bhalu Murmu@Galu v. State of Orissa

Case brief

What is this about?

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