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IN THE HIGHCOURT OF KALINGA

CRIMINAL APPELLATE JURISDICTION

Presiding officer :- I. Sirisha

Criminal appeal no. :- 03 of 2020

State of Kalinga……………………………………….. Appellant

Vs

Hari prasad rout

S/o Nageshwar rout

Resident of Mahila P.S. Ekamra Kshetra

Kalinga,

Jambudvipa……………………………………………Respondent

Appearance :-

Sri S. Ramana,

Public prosecutor………………………………………for the state

  1. V. Sudhakar,

Learned defence counsel……………………………….for the accused

Date of judgement :- 07.11.2020

 

Judgement

  1. The Accused has been put to trial on the charge of sexually assaulting (Rape) a minor girl on 03.02 2020 at Government High School Campus under Mahila P.S in Ekamra Kshetra in the district of Bala-e-Shor, Kalinga, Punishable u/s 376(2) (n) of Jambudvipian Penal Code, 1860 and also under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and also Committed an Offence by insulting the girl by calling her by some words, Causing an Offence under Section 3(1) (w) (i) and 2(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, and under Section 3 r/w 181 of the Motor Vehicles Act, 1988.
  2. The Trial has been Started and the facts in the brief are that on 03.02.2020 at 23.00 PM, the Inspector in Charge of Mahila P.S. PS Kalyani has received a complaint from a minor girl. The Complainant gave a written complaint, Stating that the accused, Hari Prasad Rout has repeatedly committed a sexual offence against her will, knowing that she belongs to ST Caste and even after the victim warned him not to commit such act.
  • The Victim was an 11-Year-Old minor girl who, being aggrieved by her family members ran away from home and came to Ekamra Kshetra by bus.
  • At 20:00 on 03.02.2020, she got down from the bus, while she was eating corn at a corn stall, the accused approached her and enquired about her details and introduced himself and assured the girl that he will drop her at Central Bus Stand, from where she can get the bus to go to her home.
  • Believing the words of the accused, the victim, sat on the motorcycle of the accused.
  • But the accused instead of taking her to Central Bus Stand took her to a Govt. High School Campus of saritanagar.
  • Then he undressed her and committed rape on her forcibly, without the consent of the girl, even though she warned him not to commit such acts and told him that she is a Scheduled Tribe Girl.
  • After that, the accused took her to Central Bus Stand and gave her food at a Dhaba
  • As there were no buses at the central bus stand to go to her village, he again took her to the Govt High School and undressed her and committed aggravated penetrative assault and forced her to drink his urine.
  • After these incidents, he called out her with names such as ‘pallan’, ‘pallapayal’, ‘parayan’, ‘paraparayan’, and left her alone and fled away.
  • After receiving the complaint, an FIR has been filed after examining the victim, the minor girl and recorded her statement. ● After investigation, the accused has been arrested on 04.02.2020 and was admitted by the juvenile board as the accused was below the age of 18 Years
  • On 05.02 2020 the Juvenile Board found the accused well aware of the circumstances and consequences of his act and transfer the case to the sessions court, finding him capable of committing such offence.
  • On 06.02.2020, the accused has filed a bail petition u/s 439 of Cr. P . C in the Court of Additional Sessions Judge, Ekamra Kshetra.
  • The bail petition has been rejected on 08.02.2020 on the ground that, if the accused has been released on bail, he may threaten the victim or other witnesses or tamper with the evidence.
  • The Victim has been left in Zima of her mother as per the order of the Court.
  1. The accused has been provided with all the copies, free of cost, each copy of the police report, the FIR recorded u/s 155 Cr. P.C, the recorded statement of all witnesses, the confessions and statements following the provisions of the Section 207 Cr.P.C.
  2. I have heard the argument being advanced by Sri. N . K.Prasad, a learned Public Prosecutor and Sri.K.V.Jay, a learned defence counsel.

 

According to the learned Public Prosecutor, the prosecution has been able to prove all the charges on the accused based on circumstantial evidence, even in the absence of direct witnesses. P.W. 13, Mr Pradeep Kumar Kisan, the manager of Dhaba has identified the victim and P.W.14 Mr Sankalp Bhuiyan, the corn seller also identified the accused and stated that he has witnessed the accused approaching the victim and taking her on the motorcycle. P.W.15 Mr Kamala Kanta Tripati, the fruit seller also stated that, while the victim was eating corn, the accused approached her and he also identified the accused in T1 Parade and supported the prosecution. The incident took place at Govt High School Campus, Sastrinagar, where they have found a necklace and a red stone from the victim’s Clothes. The Medical reports from the capital hospital have stated that there were small abrasions on the body of the victim and small abrasions on the fourchette, Carunculaehymenales was absent, which admits two fingers very tightly. They stated that there is a physical sign and symptoms of sexual intercourse. The accused also defamed her by using words. Even though there were no eyewitnesses, the circumstantial evidence collected were all against the accused and these all circumstances forma chain of events from which we can conclude that accused is guilty of committing rape. There was no evidence for the defence to prove against the guilt of the accused. Therefore, the accused is liable and to be held guilty for committing rape and for calling out words and insulting the girl. He shall be adequately punished as per sections 363/366/366-A/376 A /376 (2)(j)(n) /376(3)/376 AB of the JPC and under Section 3 r/w 4/5 (1)(m)(p) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 and as per Section 3(1)(a)(e)(r)/ 3(1)(w)(i)/ 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention from Atrocities) Act and under Section 3 r/w 181 of the Motor Vehicles Act, 1988. Countering the arguments made by the learned Public Prosecutor, the State Defence Counsel contended that the evidence produced is circumstantial, it is not sufficient to prove the guilt of the accused and as the accused was minor, the sessions court has no jurisdiction to try the proceedings and the order passed by the sessions court cannot be executed. Even though if the accused was found guilty of committing rape, he was a minor, his thought process was immature and cannot understand the consequences of the act. Therefore, the sentence must be reduced.

  1. To prove the charges on the accused, the prosecutor examined 18 witnesses. The statement of witnesses presented before the court were
  • The Victim P.W.1 has repeated her statement as given in FIR before the police officer and before the magistrate as per the 161 Statement and 164 Statement.
  • P.W.2 Mother of the victim Mrs Lalitha Naik has said that her daughter narrated the entire incident to her and the same she repeated before the Court and she submitted the Birth certificate of the girl, Caste Certificate, Transfer Certificate and Land Record to ACP and also signed the Zimanama.
  • P.W.3 and P.W.4 Mr Ratikant Ho and Mrs Anjana Ho, who came along with P.W.2, said that P.W.2 has submitted all the relevant documents to ACP and they have signedon the document along with P.W.2. They have also narrated the incident informed to them by the victim to the court.
  • P.W.5 WSI Gitanjali Misra of Mahila P.S has stated that she has recorded 161 Statements of all witnesses on the direction of ACP and visited the spot of the incidentand found a necklace and red stone from the victim’s dress. She has taken the victim before the magistrate for recording 164 Statements. She has also taken the victim to Capital Hospital for Medical Examination and handed over the records to ACP. She also stated that during her conversation with the victim, the victim told that age belongs to the ST community and was repeatedly raped by the accused, who belongs to the general caste.
  • P.W.6 Mrs Laxmi Priya Behara, Constable of Mahila P.S gas joined P.W.5 in the investigation and medical examination and has confirmed the statement given by P.W.5.
  • P.W.7 Chitaranjan Sahoo and P.W.8 Kedarnath das, seizure witnesses stated that they have witnessed the seizure procedure done by ACP seizing the motorbike bearing JD01DKP7259 from the accused on 04.02.2020. They also stated that ACP has read over the input of seizure list and after properly understanding the same, finding them correct, they have signed on it.
  • P.W.9 Rajinikanta Sabar and P.W.10 Soumya Ranjan Mallick stated that they were present during the spot investigation and stated that they witnessed the seizure of necklace and one pink stone from the spot and they have signed the seizure list after understanding and finding them true.
  • P.W.11 Mr Trinath Sahoo and P.W.12 Somnath Rout Witnessed the confessional statement given by the accused to ACP and stated to the court that the accused admitted before them that he has committed rape and aggravated penetrative sexual assault on the victim.
  • P.W.13 Mr Pradeep Kumar Kisan, the manager of the Dhaba has stated that the accused has come to his Dhaba with the victim on 03.02.2020 and has identified the accused in Test Identification Parade
  • P.W.14 Mr Sankalp Bhuiyan, the corn seller at shantivihar has identified the accused in T1 Parade and stated that the victim has come to his stall and asked for corn. While she was eating corn, the accused approached her and asked her about her whereabouts and they both went away in the accused motor vehicle.
  • P.W.15 Mr Kamalkanta Tripathi, the fruit seller in shantivihar, has stated that the victim came to his stall and asked to charge the mobile. He has also stated that hewitnessed the accused approaching the victim, while she was eating corn at the corn stall. He also identified the accused in T1 Parade.
  • P.W.16 Mr Sudhansu Barik, Constable of Mahila P.S stated that she took the accused to the Capital Hospital for his medical examination and submitted all the reports of the examination to ACP.
  • P.W.17 Dr Renubala Dei, M.O., Capital Hospital Stated that there were small abrasions on the body of the victim and small abrasions on the fourchette but Labia Majora and Labia Minora were normal and there was no discharge or stain. There was no fresh bleeding, Carunculaehymenales was absent and it admits two fingers very tightly. She stated there was a physical sign and symptoms of sexual intercourse and the final report can be given after vaginal swab test.
  • P.W.18 Dr Dwaraka Nath Satapathy, M.O., Capital Hospital has stated before the court that there was no stain, discharge or bleeding on the body of the accused, no tear on prepuce, smegma and frenum, no discharge from meatus and no injury to penis or scrotum etc. He also opines that after careful examination there is nothing to suggest that the accused is not capable of performing a sexual act in an ordinary case.
  1. During the investigation evidence collected in favour of prosecution was a red stone, necklace, wearing apparels of the victim and accused, public hair of accused and victim, semen of accused, Caste Certificate of Victim, Motor Cycle and its RC Book, Zimanama, medical report of the victim, medical report of accused, Photograph of the victim, photograph of motorcycle, accused’s confession, T1 parade report, FSL Acknowledgement, Command certificate, Xerox copy of caste certificate, Xerox copy of transfer certificate, Xerox copy of land Patta, Aadhar card of victim, victim’s mother and father, Xerox copy of R.C and Record challan.

The wearing apparel confirms that the red button and necklace found at the incident spot belongs to the victim’s dress and the necklace belongs to the victim. The medical examination report given by the Capital Hospital gives a piece of evidence that there were small abrasions on the body of the victim, which means that the body has been touched by rough surface and small abrasions on the fourchette, which concludes that penetration was done and absence of Carunculaehymenales, admits two fingers in the vagina very tightly. This admits that there is physical sign and symptoms of sexual intercourse. The medical report of the accused was also given, there were no stains, discharge or blood on the body of the accused, no tear on the prepuce, no discharge from meatus and no injury to penis or scrotum conclude that there is nothing to say that the victim is not capable of committing a sexual act. The caste certificate is given by the Victim’s mother evident that she belongs to “GOND” by caste, whereas the accused belongs to “KHANDAYAT”. The Birth certificate of the victim submitted by her mother concludes that she is a minor. The Birth Certificate of the victim gives evidence that the accused is a minor and drove a motor vehicle against the provisions of Section 3 and 4 of the Motor Vehicles Act, 1988. The evidence produced conclude that the accused has committed a penetrative assault on the victim.

Decision

The defence couldn’t prove that the hypothesis made by the prosecution against the accused were untrue. This series of incidents that have taken place such as accused approaching the victim and asking about her details and taking her on the bike, the same which was stated by witnesses, and the necklace and red stone from the victim’s dress found on the spot, where the incident took place to conclude that the accused has taken her to that place. The small abrasions on the body of the victim, which usually occurs when skin got rub against a rough surface and small abrasions on the fourchette, concludes that intercourse has taken place. Labia Majora and Labia Minora were not injured and the absence of Carunculaehymenales admits that two fingers have been placed in the vagina of the victim very tightly. The medical reports conclude that there is a physical sign and symptoms of sexual intercourseCross-examination of the witnesses by the defence Counsel couldn’t find any statement or evidence to prove that the accused is not guilty.On very careful observation of the evidence and witnesses statement, I have found that the evidence given by the P.W.5, which was witnessed by P.W.6 and P.W.7 and P.W.8, P.W.9, P.W 10 and the medical report given by P.W.17 concludes that the accused has committed rape and is found guilty. The accused challenged the order passed by the Sessions Court, as the Sessions Court has no jurisdiction, I dismiss the plea, as per the Juvenile Justice (care and protection of children ) Act, 2015, which allowed to transfer of cases of heinous offences by children to the Sessions Court.

 

…………..J  I Sirisha

 

Even Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Therefore, the accused is held guilty of rape in minor girl and is sentenced to suffer imprisonment for 7 years u/s 376 (2)(n) of JPC and a fine of Rs.1000/- as per u/s 3 r/w 181 of Motor Vehicles Act, 1988, 3 months of simple imprisonment u/s 3(1) (a) (e) (r)/ 3 (1) (w) (i)/ 3(2) (v) of the SC & ST (PA) ACT, for degrading the girl by calling her with different words. The period the accused already spent in jail during the investigation and triable be set off u/s 428 Cr.P.C.

The prosecution argued that this is a heinous crime and should be treated as rarest of rare and the punishment to the accused is insufficient and he must be punished with Capital Punishment. And should be punishment for criminal intimidation u/s 503 of JPC.

The defence argued that the accused is a minor, a 17-Year-old, immature to understand the consequences of his actions and the evidence proved against the guilty is all circumstantial and there is no direct witness. Even though he is found Guilty of Rape, he must be sentenced to a lesser punishment u/s 376 of JPC along with Section 6 of POCSO ACT, 2012 and also considering the Juvenile Justice (care and protection of children) Act, 2015.

I have considered the Criminal appeal by Lalita naik (mother of victim) that the punishment is inadequate and insufficient for such a heinous crime. Hence the accused is sentenced to suffer two years imprisonment and fine for Criminal intimidation under section 506 of JPC, 1860 along with the punishment sentenced by the sessions Court. Which is 7years imprisonment u/s 376 (2) (n) of JPC and Rs. 1000/- fine u/s 3 r/w 181 of Motor Vehicles Act.

Given under my hand and seal of this court on this the 07th day of November 2020.Dictated and corrected by me.

……………J I Sirisha

KALINGA

07.11.2020

 

 

Sirisha

Dr. B. R. Ambedkar law college

5th year – B.A.LLB

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