orissa high court

Orissa High Court: In a jail criminal appeal against the Judgment and Order of Additional Sessions Judge whereby the convict was found guilty of offences under Sections 376(3), 376(2)(n), 506 of the Penal Code, 1860 (‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) and was sentenced to undergo rigorous imprisonment for a period of twenty years, S.K. Sahoo*, J. dismissed the appeal and upheld the Trial Court’s conviction order.

Factual Matrix

The minor victim, sister of the convict lodged a First Information Report (‘FIR’) against the convict stating that her elder brother/ convict was frequently committing sexual intercourse with her in absence of the other family members by threatening her with dire consequences. Two months prior to the registration of the FIR, it was disclosed that the minor victim was pregnant. The convict was arrested and upon completion of investigation the charge sheet was framed. The Trial Court found that the minor victim was fourteen years of age during the period of occurrence. It was also proved before the Trial Court that the minor victim was impregnated by the convict and that she delivered a female child. The Trial Court found the convict guilty and sentenced him to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.40,000/-. Hence, the present appeal.

Analysis and Decision

The Court expressed its shock towards the unfortunate incident and pointed to the irony of hearing the matter on ‘Raksha Bandhan’ day.

“A brother for a sister is a protector, confidant and a lifelong friend. They share a unique bond that nothing can replace. A sister is a treasure beyond measure for the brother whereas a brother is a hero in disguise and a role model for the sister”.

Regarding the age of the victim, the Court perused the minor victim’s cross-examination, the school headmaster’s statement and the school admission register. The Court found that on combining the minor victim’s evidence along with the headmaster’ statement and school register, it was successfully established that minor victim was born on 05-08-2005 and that she left her studies in Class- V. Hence, the Court viewed that the minor victim was aged about 14 years at the time of occurrence.

Further, the Court perused the victim’s statement made under Section 164 of the Code of Criminal Procedure, 1973 (‘CrPC’), wherein it was stated that the convict was her elder brother and he committed sexual intercourse with her and threatened to kill her, if she disclosed the matter to their father. The Court also found through the minor victim’s friend’s statement that when she missed her mensuration, the friend took her to a lady, who found that victim was pregnant and hence sent her to Anganwadi to take medicine to abort the pregnancy. It was then that minor victim had disclosed about the occurrence before the Anganwadi Didi, who also tested her for the pregnancy. The Court also found that the minor victim gave birth to a female child at Swadhar Home, where the minor victim was taken. Regarding the date of the occurrence, the Court viewed that the minor victim could have stated the dates of occurrence, but the same cannot be taken as a factor to disbelieve the victim’s evidence. The Court said that the minor victim’s statement was corroborated from her friend’s evidence.

Regarding the contention of delay in lodging the FIR, the Court said that in such a case, keeping in view the relationship between the parties and family prestige, it is very natural that the family members take time to lodge the FIR. Regarding the non- conducting of D.N.A. test to determine the paternity of the female child, the Court viewed that it cannot be a ground to disbelieve the evidence of the minor victim. The Court also said that conducting D.N.A. test is not a sine qua non in cases of rape as such tests are merely incidental to determine the culpability of an accused for commission of crime.

Further, the Court said that it is settled law that if the version of the victim is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. The Court stated that “corroboration is not a sine qua non for a conviction in a rape case”. The Court also added that if the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.

Therefore, the Court viewed that the evidence of the minor victim is reliable and does not suffer from any infirmities or blemish. The Court concluded that the Trial Court had rightly held that the prosecution had successfully proved the case against the convict. Hence, the convict’s appeal was dismissed.

[X v. State of Odisha, 2023 SCC OnLine Ori 5523, Decided on 30-08-2023]


For the Convict: Amicus Curiae Manasi Dash

For the respondent: Additional Standing Counsel Priyabrata Tripathy


*Deeksha Dabas, Editorial Assistant has reported this brief.

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