GAGAN BIHARI SAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) Special leave granted. Arguments heard.

(2.) This appeal by special leave is directed against the judgment and order dated 17/07/1990 passed by the High court of Orissa in Criminal revision No. 382 of 1986 dismissing the revision and affirming the concurrent findings of the courts below. The prosecution case in short is that on 19/03/1983 at about 7 p. m. while the victim girl Srimanthini samal (Public Witness 2 was going to the house of Rama Samal, for study, the appellant Gagan informed her that the other appellant Prafulla and others had tied her tutor Rabi Babu in a nearby mango grove and her father was present there. Having believed the version of the appellant gagan, her agnatic uncle, she accompanied him and ultimately the appellants forcibly took her to a lonely house in hills where she was made to sit on a chair and the appellant Gagan forcibly thrusted in her mouth a liquor bottle and she was made to drink the liquor. Thereafter both the appellants after having undressed her committed strial. The pleas of the appellants were a total denial of the prosecution case. The appellant Prafulla took the plea that there was a marriage proposal of the victim girl with him but when it was disclosed that she had illicit relationship with her tutor Rabi, he refused to marry her for which this false case was foisted against him. The plea of the other appellant Gagan as suggested to the informant, was that due to his previous enmity he was falsely implicated with the alleged crime.

(3.) The appellants were committed to the court of Sessions. The learned Assistant Sessions Judge after considering the evidences on record rejected the defence pleas, and found that the accused appellants committed rape on the victim girl without her consent relying on the provisions of S. 114-A of the Evidence Act, and convicted them under S. 376 (2 (g) Indian Penal Code and sentenced each of the accused appellants to rigorous imprisonment for three years considering the young age of the appellants. The Assistant Sessions Judge, however, acquitted the appellants from the charge under S. 366 Indian Penal Code as the victim girl was more than 16 years of age at the time of occurrence.