KHUDIA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The appellant Khudia @ Khudiram Tudu faced trial in the Court of learned 3rd Additional Sessions Judge, Balasore in Sessions Trial Case No.22 of 2019 (191 of 2018) for offence punishable under Sec. 376(2)(l) of the Indian Penal Code on the accusation that he being a relative of the son-in-law of the informant (P.W.4) committed rape on the victim (P.W.9), the disabled daughter of the informant. The learned trial Court vide impugned judgment and order dtd. 30/8/2019 found the appellant guilty under Sec. 376(2)(l) of the Indian Penal Code and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs.5,000.00 (rupees five thousand), in default, to undergo R.I. for a further period of one year.

(2.) The prosecution case, as per the written report submitted by Lepa Hansda (P.W.4) on 17/6/2018 at Jaleswar Police Station, in short, is that on 15/6/2018 in the evening hours, the informant after returning from his work, came to know that during his absence, the victim (P.W.9) who is his elder daughter had gone somewhere with her mobile phone and when he tried to search her in the locality, he could not trace her out in that night. On 17/6/2018 at about 2.00 p.m., his son-in-law Banamali Tudu (P.W.5) informed him that on 15/6/2018, the victim (P.W.9) came to his house and stayed in the night but on the next day i.e. on 16/6/2018, she had gone towards the countryside but did not return in the night. On 17/6/2018 morning, the villagers noticed the victim lying on the village road in an abnormal condition. The villagers informed the family members of victim who shifted her to Jaleswar hospital and found that the victim was deaf and dumb and was under treatment and thereafter the informant (P.W.4) came to know that the appellant had committed rape on the victim causing injuries on her person. Thereafter, P.W.4 lodged the first information report before the Inspector in-charge of Jaleswar police station on 17/6/2018. On the basis of such written report, Bhaskar Chandra Patra (P.W.12), S.I. of Police, Jaleswar police station registered Jaleswar P.S. Case No.198 dtd. 17/6/2018 under Sec. 376(2)(f)(l) of the Indian Penal Code and in absence of the Inspector in-charge of Jaleswar police station, he himself took up investigation of the case. He examined the informant and recorded his statement. Even though the I.O. requested one Priyanka Behera, a lady police officer to record the statement of the victim, but since the victim was a deaf and dumb girl and could not explain anything about the occurrence and her signs and gesture was not understandable, therefore, her statement under Sec. 161 of Cr.P.C. could not be recorded. The father of the victim produced documents relating to her disability which were seized as per seizure list marked as Ext.2. The victim was sent for medical examination and P.W.10, the doctor of F.M.T. Department of Fakir Mohan Medical College and Hospital, Balasore examined her. Thereafter the I.O. prepared the spot map marked as Ext.7. The appellant was arrested on 18/6/2018 and he was also sent for medical examination. The wearing apparels of the victim were seized. Prayer was made to the learned J.M.F.C., Jaleswar for recording of the 164 Cr.P.C. statement of the victim but it could not be possible. After completion of investigation, charge sheet has been submitted against the appellant under Sec. 376(2)(f)(l)(n) of the I.P.C. on 28/9/2018

(3.) During course of trial, in order to prove its case, the prosecution examined fourteen witnesses. P.W.1 Gourahari Hui is the scribe of the F.I.R. (Ext.1) and he stated that on 17/6/2018 in the early morning, he noticed the victim lying on the village road in an abnormal condition and her wearing apparels were covered with mud and he further stated that as per his advice, the victim was shifted to the hospital. P.W.2 Maina Tudu is the younger sister of the victim. She stated that the victim had been to their house during Raja festival on a Friday and on the next day, she had been to the village in the evening and did not return and the appellant had also searched for her in her home in that night. She further stated that on the next day, she got information that the victim was lying unconscious in the field and her wearing apparels were torn. On getting such information, she herself, her husband and other co-villagers arrived there and found the victim in a state of unconsciousness. They took her to the house and thereafter, she was shifted to the hospital. She further stated that when the victim regained her sense, she asked the victim as to who was responsible for her such condition, but she could not tell anything and she asked the victim whether she could recognize the person responsible as she was raped. She further stated that her husband called her father, who is the informant in the case and asked him to lodge the F.I.R. at the police station and then the police brought the appellant to the police station where the victim could recognize him. P.W.3 Salama Baskey, who is a co-villager of P.W.2, has been declared hostile by the prosecution. P.W.4 Lepa Hansda, who is the father of the victim, is the informant in the case. He stated that on getting information from his son-in-law Banamali Tudu (P.W.5) that the victim had been raped, he went to the hospital and from the sign, the victim expressed him that the appellant raped her. P.W.5 Banamali Tudu is the son-in-law of the informant and brother-in-law of the victim and he stated in the same manner as that of his wife (P.W.2). P.W.6 Shaktipada Mishra was the constable attached to Jaleswar Police Station is a witness to the seizure of copy of the handicapped certificate and xerox copy of Aadhaar card from the possession of P.W.4 as per seizure list Ext.2. P.W.7 Dangu Paraja was the O.A.P.F., Jaleswar Police Station and he is a witness to the seizure of copy of the handicapped certificate and xerox copy of Aadhaar card from the possession of P.W.4 as per seizure list Ext.2. He is also a witness to the seizure of biological sample of the appellant as per seizure list Ext.3. P.W.8 Bhabanikanta Swain was the Assistant Teacher of the school and on being summoned by the police, he appeared before the Court of learned J.M.F.C., Jaleswar and he stated that he asked the victim as to what happened to her in sign as she was deaf and dumb but she could not follow his sign. P.W.9 is the victim and being a deaf and dumb girl, her statement was recorded with the assistance of an interpreter (P.W.4), who is her father. She stated through the interpreter that while she had been to the marital house of her younger sister on the Raja festival and while in the evening, she had been to the countryside to have a pleasure trip, the appellant took her forcibly, physically assaulted her, tore her wearing apparels and committed rape on her. She further stated that she disclosed the incident to her sister who took her to the hospital and she further stated that at the time of occurrence, she was wearing a red colour chudidar and a red pant. P.W.10 Dr. Motirmay Giri is the Medical Officer who examined the victim on police requisition. He proved his report as per Ext.4. P.W.11 Tapan Kumar Hazra was the constable attached to Jaleswar police station. He is a witness to the seizure of biological sample of the victim so also the wearing apparels of the appellant as per seizure lists Exts.5 & 6 respectively. P.W.12 Bhaskar Chandra Patra was the S.I. of police, Jaleswar Police Station and he is the Investigating Officer of this case who on completion of investigation, submitted charge sheet. P.W.13 Dr. Ganesh Chandra Pal was the Medical Officer who examined the appellant on 18/6/2018 on police requisition and proved the report vide Ext.8. P.W.14 Dharanidhar Samantray who was the constable attached to Jaleswar police station and he is a witness to the seizure of biological samples of the victim as per seizure list Ext.5. The prosecution exhibited eleven documents. Ext.1 is the F.I.R., Exts.2, 3, 5 and 6 are the seizure lists, Exts.4 & 8 are the injury reports, Ext.7 is the spot map prepared by the I.O., Ext.9 is the requisition for chemical examination of seized exhibits, Ext.10 is the spot map prepared by the Talasildar, Jaleswar and Ext.11 is the chemical examination report. The prosecution also proved six material objects. M.O.I is the red colour chudidar shirt, M.O.II is one red colour chudidar pant, M.O.III is one sky blue colour half pant of appellant, M.O.IV is the pubic hair of the appellant, M.O. V is the pubic hair of the victim and M.O. VI is the vaginal swab of the victim.