The Orissa High Court yesterday while upholding imprisonment of 20 years awarded to a brother for raping his minor sister has said that it is both shocking and ironical to hear such a case and render the judgment on the day of ‘Raksha Bandhan’.

The Court was dealing with a Jail Criminal Appeal filed under Section 374 of Cr.PC. against the judgment passed by the Additional Sessions Judge-cum-Special Judge.

A Single Bench of Justice S.K. Sahoo observed, “Today is Raksha Bandhan, 2023 which is a special day to celebrate the bond between the siblings to express love and gratitude for each other. Brothers pledge to protect their sisters, love and cherish them, and shower them with presents while sisters tie ‘Rakhi’ on their brothers’ wrists, place tilak on their foreheads, and pray for their prosperity and long lives. … 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.”

The Bench said that a brother for a sister is a protector, confidant, and a lifelong friend and that they both share a unique bond that nothing can replace.

“It is said that “brothers and sisters are as close as hands and feet.” … 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. Can anyone forget that beautiful song from Hindi film “Chhoti Bahen” (1959) in the voice of Nightingale of India Late Lata Mangeshkar “Bhaiya Mere Rakhi Ke Bandhan Ko Nibhana, Bhaiya Mere Choti Bahen Ko Na Bhulana”, also said the Bench.

Advocate Manasi Dash appeared for the appellant/convict while Additional Standing Counsel Priyabrata Tripathy appeared for the respondent/State.

Brief Facts -

An accusation was levelled against an elder brother to have committed rape on her own sister when she was hardly 14 years of age and to have made her pregnant for which she delivered a girl child. He was frequently committing sexual intercourse with her in absence of the other family members by threatening her with dire consequence and out of fear, the victim could not disclose about the same before anyone.

The appellant faced the trial for commission of offences punishable under Sections 376(3)/376(2)(n) of the Indian Penal Code. The Trial Court found the appellant guilty and sentenced him to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs. 40,000/-. However, no separate sentence was awarded for the offence under sections 376(3)/376(2)(n) of the IPC in view of Section 42 of the POCSO Act.

The High Court in view of the facts and circumstances of the case noted, “On careful analysis of the evidence of the victim, it has created an impression on my mind that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. I have no hesitation in acting upon her testimony alone without looking for any ‘corroboration', however, in this case there are ample corroboration available on the record to lend further credence to the testimony of the victim.”

The Court further noted that non-conducting of the D.N.A. test to determine the paternity aspect of the female child which the victim gave birth to, cannot be a ground to disbelieve the evidence of the victim and 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.

“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”, said the Court.

The Court held that 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 and that the criminal court must be alert and watch the actions of the Public Prosecutor carefully.

“In view of the forgoing discussions, I am of the humble view that the learned trial Court has rightly held that the prosecution has successfully brought home the charges against the appellant under sections 376(3)/376(2)(n)/506 of the I.P.C. read with section 6 of the POCSO Act. The sentence imposed for the offence under section 6 of the POCSO Act is the minimum sentence provided for such offence. The punishment awarded for the offence under section 506 of the IPC cannot be said to be on a higher side under any stretch of imagination as such offence was repeatedly committed whenever rape was committed in giving threat to the victim”, concluded the Court.

Accordingly, the High Court dismissed the jail criminal appeal and upheld the judgment of the Trial Court.

Cause Title- Sukumar Gouda v. State of Odisha

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