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ORISSA HIGH COURT
S.K. Sahoo, J.
Dabu @ Santosh Kumar Munda and Anr. – Appellants
versus
State of Odisha – Respondent
JCRLA No.14 of 2021 and CRLA No.135 of 2021
Decided on 28.03.2024
(A) Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 450/34 and 506/34 – Gang rape of minor girl – Conviction and sentence – Evidence of victim is most material – Prosecutrix complaining of having been victim of offence of rape is not an accomplice and there is no rule of law that her testimony cannot be acted upon without corroboration in material particulars – She stands on a higher pedestal than an injured witness – Disclosure made by victim before P.Ws. is very much relevant and it is admissible as res gestae under Section 6 of Evidence Act – Evidence of victim regarding commission of rape is getting corroboration not only from oral evidence of P.Ws. but also from medical evidence – Prosecution has successfully explained delay in lodging F.I.R. – Findings of Trial Court that victim was minor as on date of occurrence is quite justified – Defence plea cannot be based on surmises and speculation – Both appellants not only committed trespass into house of victim in midnight but also committed gang rape on her and committed act of criminal intimidation – Conviction of appellants and sentence awarded by Trial Court upheld.(Paras 9, 10, 11, 12 and 13)
(B) Indian Evidence Act, 1872 – Section 6 – Res gestae – To be relevant under Section 6 of Evidence Act, such statement must have been made contemporaneously with fact in issue, or at least immediately thereupon and in conjunction therewith – If there is interval between fact in issue and fact sought to be proved then such statement cannot come within ‘res gestae’ concept.(Para 9)
Result: Jail Criminal Appeal and Criminal Appeal dismissed.
Key Points: - Evidence of the victim is most material and conviction can be sustained on sole testimony of the victim in rape cases (!) (!) . - The victim’s statement was consistent and corroborated by medical evidence, and the trial court’s findings on her minor status were justified (!) (!) . - Defence pleas based on speculation and lack of evidence were not accepted by the trial court, which found the victim’s evidence clear and trustworthy (!) (!) . - Delay in lodging the F.I.R. was successfully explained by the prosecution, and such delay does not necessarily indicate a tainted case (!) (!) . - The court observed that the victim’s disclosure was admissible as res gestae under Section 6 of the Evidence Act because it was made contemporaneously with the incident (!) . - Both appellants were convicted and sentenced, and the appeals were dismissed as devoid of merit (!) .
JUDGMENT
S.K. Sahoo, J.—The appellant Dabu @ Santosh Kumar Munda in JCRLA No.14 of 2021 and the appellant Mukuna @ Dhanu @ Dhanuram Kerei in CRLA No.135 of 2021 faced trial in the Court of learned Additional Sessions Judge-cum-Special Judge, Keonjhar in Special Case No.29 of 2017 for offences punishable under section 450/34 of the Indian Penal Code (hereinafter ‘I.P.C.’), section 506/34 of the I.P.C., section 376-D of the I.P.C. and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter referred to as ‘POCSO Act’).
The learned trial Court vide impugned judgment and order dated 13.01.2021 found the appellants guilty of the offences charged and sentenced each of the appellants to undergo rigorous imprisonment for a period of twenty years each and to pay a fine of Rs.50,000/- (rupees fifty thousand) each, in default, to suffer further rigorous imprisonment for one year each for the offence under section 376-D of the I.P.C., rigorous imprisonment for a period of one year each and to pay a fine of Rs.1,000/- (rupees one thousand) each, in default, to suffer further rigorous imprisonment for one month each for the offence under section 506 of the I.P.C. and rigorous imprisonment for a period of five years each and to pay a fine of Rs.5,000/- (rupees five thousand) each, in default, to suffer further rigorous imprisonment for six months each for the offence under section 450 of the I.P.C. However, no separate sentence was imposed for the offence under section 6 of the POCSO Act in view of section 42 of the POCSO Act and the sentences were directed to run concurrently.
Since both the appeals arise out of same judgment, with the consent of learned counsel for the respective parties, those are heard analogously and disposed of by this common judgment.
Prosecution Case:
2. The prosecution case as per the first information report (Ext.1) lodged by Laxmi Munda (P.W.1), the mother of the victim (P.W.2) before the Inspector in-charge of Keonjhar Sadar police station on 20.03.2017, in short, is that she had been to Belda market on 18.03.2017 to purchase cattle leaving her children in the house. The victim (P.W.2), who was aged about fourteen years along with the niece of P.W.1 namely Sambari Munda (P.W.4), aged about twelve years and the son of P.W.1 namely Sanjay Munda (P.W.3), aged about sixteen years were present in the house. At about twelve midnight on 18/19.03.2017, the appellants entered inside the house of P.W.1 by breaking open the window by switching off the light and they gagged the mouth of the victim and forcibly took her to a distance place from her house and removed her clothes and committed gang rape on her. It is further stated that they tried to kill the victim by means of a stone but the victim ran away in order to save her life from the spot. P.W.1 returned home on 19.03.2017 at about 4.00 p.m. and came to know about the occurrence from the victim and accordingly, she narrated the incident before the grama rakhi of the village, namely, Sudarsan Munda (P.W.6), who scribed the written report and the signature of P.W.1 was obtained on the written report and it was presented before the Inspector in-charge, who registered Keonjhar Sadar P.S. Case No.98 dated 20.03.2017 under sections 450/376-D/506 of the I.P.C. and section 6 of the POCSO Act against both the appellants.
P.W.10 Srikanta Sahoo, S.I. of Police attached to Sadar police station, Keonjhar was directed by the Inspector incharge to take up investigation of the case. P.W.10 examined the informant, the victim, other witnesses, seized the wearing apparels of the victim on her production as per seizure list Ext.3. The victim was sent for medical examination on police requisition and the appellants were arrested on 21.03.2017 and then they were sent for medical examination to C.H.C., Padampur. After medical examination, the biological materials of both the appellants were collected and on being produced by the Havildar, the same was seized by the
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