| Citation | AIR 1957 Ori 78, 1957 CriLJ 469 |
| Date of Judgement | 27 November 1956 |
| Court | Orissa High Court |
| Statute | Protection of Child From Sexual Offence Act |
| Appellant | Ghanashyam Misra |
| Respondent | The State |
| Bench | Narasimham, Mohapatra |
| Principle | The person who perpetrated the act was in a position of trust or authority over the kid. |
FACTS OF THE CASE
In the given case, the incident was done in October 1954, the petitioner was a teacher in the M. E. School, Rainarusinghpur, District Dhenkanal. It was claimed that on the 4th of October 1954 at afternoon he committed rape on a girl student of the school, aged ten years named Nalini Kumari Dei inside the school campus. Soon after committing rape he was said to have given her two anna pieces for purchasing sweets and warned her not to disclose the incident to anybody. The girl suffered an injury to her private parts in consequence of the offence and after returning to her house the girl informed her mother Keli Dei about the horrifying incident committed on her. Her father Kinu Charan Misra was also informed as soon as possible about the incident.
News regarding the incidence reached to the several persons of the locality soon, and around 3:30 p. m. some of the Bhadra Logs collected at the school campus to enquire into the matter. The petitioner was also present before the Punches and the girl identified him as the person who committed rape on her though he stoutly denied the allegations.
The victim’s brother Basanta Kumar Mishra, a 22 year old young man went next day morning to police station kamakhyanagar and filled an FIR on 5th of October ,1954 at around 10:30 a.m.. The usual investigation was followed by police and the girl and the petitioner was sent to the medical officer for examination. The saree of the girl which had been safeguarded by her parents, was seized by the police and the cloth of the petitioner was also seized and sent to the Chemical Examiner. The serologist’s report shows that the human bloodstains were found in the victim’s saree. Spermatozoa, however was not, detected in either of the clothes.
Dr. Satyanarayan Satpathy conducted the medical examination of the victim and the petitioner on October 5th and 6th, 1954 respectively. Based mostly on the fact that she had only twelve teeth, no pubic hair on her intimate areas, and underdeveloped breasts, he assessed the girl’s age to be around ten years old. He discovered a freshly made, 1/5″-long hymen tear posteriorly along with commisure bruises. The genital area was quite sensitive, but there was no blood or vaginal discharge.
The petitioner refuted the accusation and contended that he was the target of a plot by his vehement adversaries, who banded together to trap him in this false accusation. When questioned about the reasons for the abrasions in his thumb and penis, he said that he could have scratched his private area with his hand, but he did not provide an explanation for the abrasion on the back of his left thumb.
ISSUES
In the High Court of Orissa, the issue raised was:
- Whether the identity of the petitioner as the culprit who committed rape on the girl has been established beyond reasonable doubt?
ARGUMENTS
By Appellant,
The appellant argued that the parents of the girl and other villagers combined and concocted this false case against him can be summarily dismissed as fantastic.
The arguments stated about the improbability of the appellant having committed such an offence at that hour of the day. inside the School Boom. Though it was a holiday on account of the Punjas still there is evidence to show that the Headmaster and some pupils were residing in the school hostel. Since the kitchen was nearby and there is proof that some of the schoolroom’s doors and windows lacked door or window leaves, anyone curious about what was going on inside could simply peek in.
Additionally, there was some arguments based on the headmaster’s testimony, which stated that the classroom’s floor was too small for a man to lie down on. The girl’s claim that she was raped after being forced to lie down on the ground was strongly objected to. Although the headmaster has undoubtedly mentioned that there are benches and chairs on the schoolroom floor, there is no proof that these items are anchored to the ground or otherwise immobile. The girl’s account of what happened is thus not greatly unlikely in light of the Headmaster’s testimony.
It can also take note of another argument made by Mr. Rao on behalf of the appellant, which was supported by medical data and stated that the girl’s vaginal opening was extremely small, only able to accept her little finger. During the cross-examination, the medical officer clarified that he had not observed any dilatation of the vaginal canal in the girl, but if the penis had penetrated the canal, it would have produced dilation that would have lasted for several days. It was recommended not to trust the girl’s account of being raped based on the Medical Officer’s response.
He also makes reference to an additional argument that is predicated on the girl’s brother’s claim in the F. I. R. that the appellant’s offence was an unnatural offence, or one that fell under Section 377 I. P. C. It appears that a satisfactory explanation for the alleged contradiction in the prosecution’s case has been provided. The source was not a firsthand observer. He learned about the occurrence from his mother and sister, and it seems that the terms “rape offence” and “unnatural offence” are interchangeable in colloquial English. Therefore, nothing would turn on it even if he misunderstood what was spoken to him. This purported disparity is completely insufficient to cast doubt on the prosecution’s narrative.
It can be stated that the trial in the Assistant Sessions Judge’s Court was conducted with the assistance of three assessors. While two of them found the petitioner guilty under Section 376 I. P. C. and one under Section 377 I. P. C., it is evident that they all accepted the girl’s description. It’s important to note.
By Respondent,
It is highly doubtful that this type of false accusation would be made by the girl’s father against the appellant who is also said to be one of his distant relations. Considering the community to which the parties belong, the parents of the girl must have been fully aware that this type of accusation, made in respect of their daughter might ruin her future life and whatever may be the bitterness of hatred. It seems unbelievable to me that someone would have created such a fake narrative.
Apart from that there is no clear evidence of such bitter hatred between the girl’s parents and the appellant, so as to induce them to take recourse to such a drastic step. There was some suggestion of hatred between the petitioner and the girl’s brother Basanta Kumar Misra due to the appellant’s exposure of the latter for his illegitimate affair with a Mehtrani lady, as mentioned by one of the defence witness. But even if this allegation against the character to be taken as true, it is not enough to hold that the girl has been tutored to make such a false case against the appellant.
However, as the lower appellate court noted, it is important to keep in mind that the incident happened shortly after midday, after the headmaster and the majority of the staff had left for the kitchen. The appellant could easily have taken advantage of this situation, since no one else was around, to sate his sexual craving.
The headmaster and other students are unlikely to have bothered to peek into the school room to observe what he was doing to the girl unless there was anything about his past behaviour that raised suspicions. As a result, I am not willing to rule that the girl’s testimony that she was raped could not be accepted since anybody with the right permission could view the inside of the room.
The girl hasn’t spoken anything about full intercourse or penetration. Although there may not be a deep penetration into the vaginal canal, simply a partial penetration that results in the rupture of the hymen is enough to qualify as rape. According to the girl’s testimony, the appellant stopped the conduct when she cried out in excruciating agony. Therefore, where the damage to the hymen made it evident that the male organ had penetrated, it cannot be inferred that the crime was not committed just because there was no elongation of the vaginal canal. In terms of the crime under Section 376 I. P. C., the depth of the penetration is irrelevant.
JUDGEMENT
The overall situation is one of exacerbating conditions. The guilty party is a 39-year-old adult, and the victim is a 10-year-old child. Because of his position, he forced her to enter the classroom and carried out a horrendous display that might have ended with the girl’s life being utterly destroyed. In addition to enhancing the sentence to seven years, the court also mandated that the accused provide restitution to the child’s father.
REFERENCES
https://indiankanoon.org/doc/747610/
This Article is written by Vaishnavi Kumari of New Law College, Bharatiya Vidyapeeth, Pune,, Intern at Legal Vidhiya.
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