Shocking To Hear This Case On ‘Raksha Bandhan’ :Orissa High Court Upholds 20-Yrs Jail Term Of Brother For Raping Minor Sister

The Orissa High Court has upheld the conviction of a brother for repeatedly committing rape on his 14-year-old minor sister which resulted in her pregnancy. The Single Bench of Justice Sangam Kumar Sahoo pronounced the verdict on 'Raksha Bandhan', in open court. It termed the incident to be ‘unfortunate’ and observed,

“It is both shocking as well as ironical to hear this case and render the judgment on ‘Raksha Bandhan’ day, on which day a brother takes the solemn pledge not only to protect his sister but also to nurture her till his last breath. Here is a case where the accusation has been levelled against an elder brother to have committed rape on her own sister when she was hardly fourteen years of age and to have made her pregnant for which she delivered a girl child...A brother is a protector, a confidant and a life-long friend. Brothers and sisters share a unique bond that nothing can replace. Sister is a treasure beyond measure. A brother is a hero in disguise, a protector and a role model.”

Background

The matter pertains to an unfortunate incident from the district of Malkangiri. The appellant is elder sibling of the victim. He kept sexual relation with the victim repeatedly for over one year and threatened her not to disclose the same before anyone, failing which he would kill her.

Out of fear, she did not disclose the incident before anybody despite of repeated sexual assaults on her. But when she stopped menstruating, she disclosed the same before her friend. The friend took her to an Anganwadi centre where her test was conducted and she was found be pregnant.

After being informed about the same, the CDPO, Malkangiri and others rescued her from her house and kept her at Swadhar Home, Malkangiri. The victim reported the matter before the Model Police Station, Malkangiri. Upon such report, investigation was done and charge-sheet was submitted.

The trial Court framed charges against the appellant under Sections 376(3), 376(2)(n) and 506 of the IPC read with Section 6 of the POCSO Act. He was found guilty under the aforesaid provisions by the trial Court. Being aggrieved by the said order of the trial Court, the appellant preferred an appeal before the High Court.

When the matter was heard before the High Court on August 16, 2023, the Court had directed the State Counsel to apprise it about the current status of the victim and her female child and also about the marital status of the appellant.

The Additional Standing Counsel, accordingly, filed a report before the Court on Wednesday stating that the victim has married somewhere else and the child, who took birth out of such sexual assault, has been placed under the supervision of an agency in Koraput.

Court’s Findings

After going through the facts of the case, the Court termed the incident to be ‘unfortunate’ and expressed shock that a brother, who is naturally entrusted with the duty to protect his sister, has not only committed sexual assault on her but also impregnated her at such an early age.

Basing upon the school admission register of the victim, the Court came to the conclusion that she was a minor and around 14 year-old at the time of rape. Further, it discarded the argument advanced by the counsel for the appellant that there was an inordinate delay in lodging of the FIR.

The Court was of the considered view that delay in lodging FIR in such cases should not viewed with a blind-eye, especially having regard for the nature of relationship that the victim and the appellant shared. It held that it is quite natural for the victim to think twice before approaching the police as it would not only hamper her self-respect but also bring endless trauma to her.

“The contention of delay in lodging the first information report in a case of this nature particularly in view of the relationship between the parties has been rightly turned down by the learned trial Court as it is very natural keeping in view the victim’s future and the prestige of the family, the family members take time to lodge the F.I.R. in such type of cases,” the Court observed.

Suggestion was made that as the victim was working as a maid in her village, it is not impossible that someone else impregnated her. However, the Court rejected such contention and said, merely because she was working as a maid in different houses at such a young age due to financial strains, it cannot be said that someone else committed the offence.

DNA Test Not Mandatory

The Court held that conducting DNA 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. Determining paternity of the child born out of rape is not necessary to establish guilt of the accused.

“Non-conducting of the D.N.A. test to determine the paternity aspect of the female child which the victim gave birth to, in my humble view, cannot be a ground to disbelieve the evidence of the victim and other prosecution witnesses through which the charges have been established,” the Court added.

Duty Of Judge & Public Prosecutor

The Court expressed serious dismay at the failure of the prosecution to prove the ‘chemical examination report’ even though it was available. Taking exception at such omission, the Court observed,

“It is strange that even though the chemical examination report is available on record, but the same has not been proved by the prosecution as the learned trial Court has observed in the impugned judgment. The duty of the Presiding Judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth and see that vital documents are not left out to be exhibited.”

The Court went to add that a Public Prosecutor has a wide spectrum of duties than to merely ensure that the accused is held guilty and punished. The duties include ensuring fair play in the proceedings, to see all relevant facts are brought before the Court to have an effective determination of truth and justice for all the parties including the victims.

“It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused. The Court must ensure that the Prosecutor is doing his duties with utmost level of efficiency and fair play. In a criminal trial, the investigating officer, the Prosecutor and the Court play a very important role. The Court's prime duty is to find out the truth. The investigating officer, the Prosecutor and the Court must work in sync and ensure that the guilty are punished by bringing on record adequate credible legal evidence. The criminal Court must be alert and it must watch the actions of the Public Prosecutor carefully,” the Court added.

After going through the evidence of the victim, her friend and other relevant witnesses as well as her medical report, the Court was of the view that the trial Court has not erred in convicting the appellant under the aforesaid offences and accordingly, upheld the conviction and the sentence of 20 years rigorous imprisonment handed down on him under Section 6 of the POCSO Act and 2 year rigorous imprisonment under Section 506, IPC.

No separate sentence was passed under Sections 376(3) and 376(2)(n) of the IPC as per the mandate under Section 42 of the POCSO Act.

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