LITU BEHERA @ JAGA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Litu Behera @ Jaga along with coaccused persons Samir Behera, Prakash Rout, Kabat @ Kabuli Senapati and Kalia Dalei faced trial in the Court of the learned Special Judge -cum- Sessions Judge, Cuttack in G.R. Case No.45 of 2013 for offences punishable under sections 342/34, 363/34, 366-A/34, 376-D of the of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter 'POCSO Act').

(2.) The prosecution case, as per the first information report lodged by the victim on 09.09.2013 before the officer in charge of Tigiria police station is that she was having love affair with the appellant since one year prior to the lodging of the first information report. The appellant was a tractor driver and coaccused Amu Sahu and Samir Behera were the helpers of the appellant in the said tractor. It is stated in the F.I.R. that on 06.09.2013 at about 8.00 p.m. while the victim had been to the backside of her house to wash her hands, the co-accused Samir Behera and Amu Sahu came in a black colour motorcycle and told the victim that the appellant was calling her. Since the victim was having love affair with the appellant, without intimating anybody in the house, she accompanied the two coaccused persons sitting on the motorcycle. On the way when the victim asked the two co-accused persons about the appellant, they told her not to worry and assured to take her to the place where appellant was waiting for her. Accordingly, the victim was taken to a Mundia (a small hillock) of village Manpur. She found the other co-accused persons Prakash Rout, Kalia Dalai and Kabuli Senapati were sitting there. When the victim asked them about the whereabouts of the appellant, they replied that the appellant would come very soon. It is further stated in the first information report that at about 10 O' clock in the night, coaccused Amu Sahu forcibly committed rape on the victim in spite of her protest and she was also given threat with dire consequence. After commission of rape by co-accused Amu Sahu, the other co-accused persons namely, Samir Behera, Kalia Dalai and Prakash Rout committed gang rape on her. They stayed in that hillock throughout the night and on the next day morning, the accused persons gave food to the victim and on 07.09.2013 night also all those persons namely, Amu Sahu, Samir Behera, Prakash Kumar Rout, Kabuli Senapati and Kalia Dalai committed rape on her. On 08.09.2013 evening at about 7.00 p.m. the appellant came to that place and the victim disclosed about the occurrence before the appellant. It is stated that when nobody was there in the hillock during mid-night, the appellant also committed rape on the victim and in that night both of them stayed together in a cottage and on 09.09.2013 at about 5.00 a.m., the appellant told the victim to wait in the cottage and left the place to bring cash from the bank to go to Banki. The victim girl agreed to the proposal given by the appellant and stayed back. At about 6 O' clock in the morning, five persons saw the victim at that place and one of them took the victim to his house and provided her food.

(3.) The victim presented the first information report on the basis of which Tigiria P.S. Case No.87 of 2013 was registered on 09.09.2013 under sections 342, 363, 366-A, 376-D of the Indian Penal Code and section 4 of the POCSO Act against six persons namely, Litu Behera (appellant), Amu Sahu, Samir Behera, Prakash Rout, Kalia Dalai and Kabat @ Babuli Senapati. The officer in charge of Tigiria police station namely, Tapan Kumar Rout (P.W.17) took up investigation of the case. During course of investigation, the Investigating Officer examined the victim and her mother Laxmi Sahu (P.W.1). He visited the spot in presence of the victim and her mother and prepared the spot map (Ext.20). On 10.09.2013 the appellant was arrested and brought to the police station. Requisition was sent to Scientific Officer, Cuttack by the Investigating Officer to visit the place of occurrence i.e. Manpur Mundia. The I.O. proceeded to Manpur Mundia and seized the wearing apparels of the victim which were lying in front of the hut under seizure list Ext.7/1. The scientific team arrived at the spot and they also prepared a spot visit report and handed over it to the investigating officer. The wearing apparels of the appellant were seized under seizure list Ext.11. The appellant and the victim were sent for medical examination to S.D. Hospital, Athagarh. As there was no lady doctor at Atagarh hospital, the victim refused to get herself examined by a male doctor. The appellant was forwarded to Court on the next day of his arrest i.e. on 11.09.2013. The victim and her mother produced the certificate of Board of Secondary Education, Odisha and one School Leaving Certificate of the victim girl of Bindhanimaa Girls High School which were seized under seizure list Ext.4 and keeping the xerox copies, the originals were handed over in the zima of the victim under zimanama Ext.5. The victim was sent with her mother to the F.M.T. Department of S.C.B. Medical College and Hospital, Cuttack for her medical examination and on the production of the Havildar, the I.O. seized two sealed packets containing vaginal swab and pubic hair and one sealed packet containing clothes of the victim and one forwarding letter under seizure list Ext.18. Co-accused Kabat @ Kabuli Senapati was arrested on 11.09.2013 and he was also sent for medical examination to C.H.C., Tigiria and on 13.09.2013 he was forwarded to Court. On 14.09.2013, the I.O. arrested accused Kalia Dalei from his house and sent him for medical examination to C.H.C., Tigiria and forwarded him to Court on 15.09.2013. The I.O. made a prayer before the Court for recording the statement of the victim under section 164 Cr.P.C and accordingly, the same was recorded on 18.09.2013 by learned S.D.J.M., Athgarh. The co-accused Amu @ Amulya Sahu who was a juvenile was apprehended on 16.09.2013 and he was also sent for medical examination. The co-accused Samir Behera was arrested 02.10.2013 and sent to C.H.C., Tigiria for his medical examination and on 03.10.2013 he was forwarded to Court. On 09.10.2013 the co-accused Pravas Kumar Rout was arrested and sent to C.H.C., Tigiria for medical examination and then forwarded to Court. Though a prayer was made by the Investigating Officer to conduct test identification parade but the T.I. parade could not be conducted in the case. The Investigating Officer received the medical examination reports of the appellant and other co-accused persons and on 26.12.2013, he sent the exhibits to S.F.S.L., Bhubaneswar through Court for chemical examination. On 01.01.2014 charge sheet was placed against all the accused persons including the juvenile Amulya Sahu for offences punishable under sections 342, 363, 366-A and 376-D of the Indian Penal Code and section 4 of the POCSO Act.