Rabi Banka vs State Of Orissa on 31 August, 2017

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLA No. 16 Of 2009

From the judgment and order dated 10.11.2008 passed by the
Additional Sessions Judge -cum- Judge, Special Court, Bargarh
in C.T. Case No.95 of 2007.
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Rabi Banka ……… Appellant

-Versus-

State of Orissa ……… Respondent

For Appellant: – Mr. Anupam Dash

For Respondent: – Mr. Chitta Ranjan Swain
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: 31.08.2017

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S. K. SAHOO, J. The appellant Rabi Banka faced trial in the Court of

learned Additional Sessions Judge -cum- Judge, Special Court,

Bargarh in C.T. Case No.95 of 2007 for offences punishable

under sections 3(1)(xii) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’)

and section 376 of the Indian Penal Code on the accusation that
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from 12.02.2007 for a fortnight, in village Attabira and at

Sahasmunda, he being in a position to dominate the will of the

victim girl belonging to the scheduled caste, used that position to

exploit her sexually to which she would not have otherwise

agreed and committed rape on the victim without her consent on

the false assurance of marriage.

The appellant was acquitted of the charge under

section 3(1)(xii) of the 1989 Act vide impugned judgment and

order dated 10.11.2008 but was found guilty under section 376

of the Indian Penal Code and sentenced to undergo rigorous

imprisonment for seven years and to pay a fine of Rs.2,000/-

(rupees two thousand), in default, to undergo further rigorous

imprisonment for a period of six months.

2. The prosecution case is that the victim girl (P.W.1)

was Ganda by caste which comes under the scheduled caste and

the appellant was Gouda by caste which comes under non-

scheduled caste and non-scheduled tribe category. The victim was

aged about fifteen years at the time of occurrence and she was

illiterate and working as a labourer in a rice mill at Attabira and

the appellant was also a labourer working in the same rice mill.

The appellant repeatedly approached the victim and told her that

he was in love with her and he wanted to marry her. Initially the
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victim denied to any such proposal given by the appellant but

when the appellant told the victim that he was a bachelor and

unless she agreed with the proposal of marriage, he would

consume poison and commit suicide, the victim being a rustic and

uneducated girl trusted the appellant and eloped with him. The

appellant took the victim to the house of his aunt and they spent

a night there. On the next day, they proceeded to village

Sahasmunda where they stayed in the house of the maternal aunt

of the appellant for a fortnight. The appellant assured the victim

to marry her and started cohabiting with her. Subsequently, the

victim came to know that the appellant was not a bachelor and he

was having his wife and son. Coming to know about the same, the

victim was frustrated and disappointed on such conduct of the

appellant and challenged the appellant as to why he cheated her

on the false assurance of marriage and subjected her to sexual

intercourse. The appellant took the victim on the 15th day to

Attabira and left her there. The victim disclosed about the

occurrence before her parents and also stated as to how the

appellant betrayed her.

3. The victim lodged the first information report on

01.03.2007 before the officer in charge of Attabira police station

and accordingly Attabira P.S. Case No.23 of 2007 was registered
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under sections 366/376/506 of the Indian Penal Code and section

3 of the 1989 Act. P.W.7 Prasanta Kumar Bhoi who was the

S.D.P.O., Bargarh took up investigation of the case. During course

of investigation, he examined the victim, her parents and other

witnesses and seized the wearing apparels of the victim and

prepared the seizure list (Ext.4) in presence of the witnesses. He

sent the victim for medical examination and P.W.5 Dr. Manoj

Kumar Jena who was the Associate Professor, F.M.T., V.S.S.

Medical College, Burla examined the victim. The I.O. visited the

spot and examined the witnesses and reduced the statements into

writing, arrested the appellant and sent him for medical

examination and seized the wearing apparels under seizure list

(Ext.5) and he also sent the seized articles for chemical analysis

and obtained the chemical analysis report (Ext.8). He also

received the medical examination reports of the appellant as well

as the victim and on completion of investigation, on 30.06.2007

he submitted charge sheet against the appellant under sections

366-A/376/506 of the Indian Penal Code and section 3(1)(xii) of

the 1989 Act.

4. After submission of charge sheet, the case was

committed to the Court of Session for trial after observing due

committal procedure where the learned Trial Court charged the
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appellant under section 3(1)(xii) of the 1989 Act and section 376

of the Indian Penal Code on 30.10.2007 and since the appellant

refuted the charge, pleaded not guilty and claimed to be tried,

the sessions trial procedure was resorted to prosecute him and

establish his guilt.

5. During course of trial, the prosecution examined

seven witnesses.

P.W.1 is the victim and she has stated about the

entire incident. She is the informant in the case.

P.W.2 Dr. Abhiram Behera who was Associate

Professor, F.M.T., V.S.S. Medical College, Burla examined the

appellant on 02.03.2007 and proved his report Ext.1.

P.W.3 Janak Kalei is the father of the victim and he

stated about the disclosure made by the victim before him as well

as his wife (P.W.4) about the commission of sexual intercourse by

the appellant on the victim and he further stated that the age of

the victim was below fourteen years at the time of occurrence.

P.W.4 Damayanti Kalet was the mother of the victim

and she also stated in similar manner like her husband and

further stated that her daughter was around fourteen years of her

age at the time of occurrence.

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P.W.5 Dr. Manoj Kumar Jena was Associate Professor,

F.M.T., V.S.S. Medical College, Burla who examined the victim on

police requisition and proved his report (Ext.2) and opined the

age of the victim to be 14-16 years.

P.W.6 Dibya Kumar Mishra is an advocate who scribed

the F.I.R.

P.W.7 Prasanta Kumar Bhoi who was the S.D.P.O.,

Bargarh is the Investigating Officer of the case.

The prosecution exhibited eight documents. Ext.1 is

the medical examination report of the appellant, Ext.2 is the

medical examination report of the victim, Ext.3 is the plain paper

first information report, Exts.4, 5 and 6 are the seizure lists and

Ext.7 is the copy of the forwarding report, Ext.8 is the chemical

examination report and Ext.9 is the caste certificate.

6. The defence plea of the appellant is one of denial. No

witness was examined on behalf of the defence.

7. The learned Trial Court after assessing the evidence

on record came to hold that the victim cannot be said to be

above the age of 16 years and nothing substantial has been

elicited from the evidence of the victim to disbelieve the

prosecution case. It was further held that the appellant was a

married person having his wife and kid yet he suppressed his
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marital status which speaks a volume against him and the entire

factual matrix as testified by P.W.1, the prosecutrix revealed the

dishonest conduct of the appellant. The learned Trial Court

further held that the conduct of the appellant when he

suppressed his marital status put the last nail in his coffin there

being sufficient evidence to prove conclusively that the appellant

never intended to marry the prosecutrix or even to provide her

marital status. It was further held that the conduct of the

appellant was exposed when he left the victim at lurch at

Attabira bus stand. It became clear that the appellant did not

wish to marry her and he committed rape on her without her

consent. It was further held that there is no hesitation to accept

the unimpeachable testimony of the victim and there is no telling

circumstance to discredit the same.

8. Mr. Anupam Das, learned counsel appearing for the

appellant challenged the impugned judgment and order of

conviction and contended that it appears that the victim was a

consenting party and even after coming to know that the

appellant was a married person having his wife and kid, she

continued keeping relationship with the appellant. It is further

contended that since there is no corroboration to the ocular
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testimony of the victim from the evidence of doctor, the

prosecution case should be discarded.

Mr. Chitta Ranjan Swain, learned Addl. Standing

counsel on the other hand supported the impugned judgment

and contended that there are ample material available on record

to show that the victim was minor and less than sixteen years at

the time of occurrence and therefore, sexual intercourse with or

without consent with a girl below the age of sixteen years

amounts to rape as per clause sixthly under section 375 of the

Indian Penal Code. It is further contended that consent given

under a misconception is no consent in view of section 90 of the

Indian Penal Code. It is emphatically contended that there is no

perversity or illegality in the findings of the learned Trial Court

and therefore, the appeal should be dismissed.

9. Coming first to the determination of the age of the

victim, she at the time of her giving evidence on 14.03.2008 has

stated that she was aged about fifteen years. The occurrence in

question took place from 12.02.2007 for a fortnight. The father

of the victim being examined as P.W.3 has stated that at the

relevant time, the victim was below fourteen years. The mother

of the victim being examined as P.W.4 has stated that the age of

the victim to be around fourteen years old. The doctor P.W.5
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who was the Associate Professor, F.M.T., V.S.S. Medical College,

Burla after dental, physical and radiological examination opined

the age of the victim to be fourteen to fifteen years. Nothing has

been brought out in the cross examination of any of these

witnesses to discard the evidence relating to the age of the

victim as put forth by the prosecution. Of course neither the

educational certificate nor any other document has been proved

in connection with the age of the victim but it cannot be lost

sight of the fact that the victim herself has stated that she is an

illiterate and had no schooling at all. Though her mother (P.W.4)

has stated that she was reading at school for some years and

her date of birth might be ascertained from the school admission

register, however, this discrepancy which is appearing relating to

the schooling of the victim cannot be a factor to discard the

prosecution evidence relating to the age of the victim which is

not only stated by three witnesses i.e. the victim and her parents

but also by the doctor (P.W.5). The learned Trial Court has held

that the age of the victim by the date of occurrence can be

recorded to be below sixteen years and under no circumstances,

she was much above sixteen years. In view of the discussion

above, the finding of the learned Trial Court that the victim was

below the age of sixteen years appears to be quite justified.
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10. Coming to the evidence of the victim, it appears that

she has stated that initially when the appellant expressed his

love to her, she expressed her dislike but the appellant

repeatedly approached her and gave proposal of marriage and

told her that he would consume “Champa Phal” and commit

suicide unless she agreed to marry him. The appellant further

told her that he is a bachelor. The victim has vividly stated as to

how she was taken from place to place and kept there and the

appellant committed sexual intercourse with her. The victim has

stated that after ten days of stay at Sahasmunda, she

ascertained the marital status of the appellant for which she was

taken aback and being frustrated and disappointed reacted

sharply and told the appellant as to why he cheated her and on

false assurance of marriage brought her to Sahasmunda and

subjected her to sexual intercourse. She has not stated that after

coming to know about the marital status of the appellant, she

allowed the appellant to cohabit with her. The victim has stated

in her cross-examination that the appellant administered some

medicine to her for which she was practically not in her self

control and sense and she was under the influence of that

medicine and unable to express herself normally. The victim has
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stated that the appellant took her to Attabira after fifteen days

and left her at lurch near Attabira market and he escaped.

From this evidence of the victim, it is apparent that

the appellant had deliberately suppressed his marital status

before the victim and assured her for the marriage and took her

to his relation’s house and kept physical relationship with her.

The victim was under a misconception of fact that the appellant

would marry her. Section 90 of the Indian Penal Code states that

if the consent is given by a person under fear of injury, or under

a misconception of fact, such consent obtained, cannot be

construed to be a valid consent.

In case of Yadla Srinivasa Rao -Vrs.- State of

Andhra Pradesh reported in (2007) 36 Orissa Criminal

Reports (SC) 37, it is held that the accused as per the

testimony of P.W.1 was, right from the beginning, not honest

and he kept on promising that he will marry her, till she became

pregnant. This kind of consent obtained by the accused cannot

be said to be any consent because she was under a

misconception of fact that the accused intends to marry her,

therefore, she had submitted to sexual intercourse with him.

Therefore, the intention of the accused right from the beginning

was not bona fide and the poor girl submitted to the lust of the
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accused completely being mislead by the accused who held out

the promise for marriage. This kind of consent taken by the

accused with clear intention not to fulfill the promise and

persuaded the girl to believe that he is going to marry her and

obtained her consent for the sexual intercourse under total

misconception, cannot be treated to be a consent. It is further

held that the consent which had been obtained by the accused

was not a voluntary one which was given by her under

misconception of fact that the accused would marry her but this

is not consent in law.

It cannot be lost sight of the fact that the victim was

an uneducated and rustic girl and she believed the appellant due

to her simplicity that the appellant would marry her and

therefore, she had submitted to sexual intercourse with him.

Submission of her body under a misconception created by the

appellant is not consent. Every consent involves submission but

the converse is not true. The sexual intercourse which was

committed by the appellant with the victim particularly when the

victim was under the age of sixteen years amounts to ‘rape’ in

view of the clause sixthly as enumerated under section 375 of

the Indian Penal Code.

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Non-finding of any bodily injury by the doctor

(P.W.5) who examined her at a belated stage cannot be a factor

to discard the evidence of the prosecutrix. The possibility of not

physically restraining the appellant by the victim under the

misconception created by the appellant cannot be ruled out and

therefore, absence of marks of injury is not a relevant

consideration to rule out the accusation of rape. The conduct of

the victim after she was left at lurch near Attabira market by the

appellant in immediately disclosing about the incident before her

parents is admissible as res geste under section 6 of the

Evidence Act.

Therefore, on a careful analysis of the evidence of

the victim coupled with the evidence of her parents, I am of the

view that the finding of the learned Trial Court that the

prosecution has successfully established the charge under

section 376 of the Indian Penal Code against the appellant is

quite justified and calls for no interference. The sentence which

has been imposed on the appellant is the minimum sentence and

no interference is also called for in that respect.

It appears that the appellant was taken into custody

and forwarded to Court on 03.03.2007 and he was not granted

bail either during investigation or during trial or by this Court
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during pendency of the appeal. Therefore, it is expected that

after serving out the sentence, the appellant must have been

released from custody, if not so, he should be released forthwith

if he is not otherwise required to be detained in connection with

any other case.

Accordingly, the criminal appeal stands dismissed.

……………………………..

S. K. Sahoo, J.

Orissa High Court, Cuttack
The 31st August, 2017/Sisir/Pravakar

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