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