BATA KRUSHNA SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against judgment dated 2.5.2002 passed by Additional Sessions Judge, Fast Track Court II, Cuttack in Criminal Appeal No. 22 of 2000 confirming the judgment dated 26.4.2000 passed by Additional C.J.M.(Spl.) -Cum - Asst. Sessions Judge, Cuttack in S.T. Case No. 276/48 of 1998 by which the Petitioner was convicted under Sections 450 and 376 of the Indian Penal Code (for short 'I.P.C.') and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ -, in default to undergo rigorous imprisonment for six months, under Section 450 of the I.P.C, and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/ -, in default to undergo rigorous imprisonment for six months, under Section 376 of the I.P.C.

(2.) PETITIONER and victim -informant P.W.5 are co -villagers. During the period of occurrence P.W.5's husband was employed and residing at Surat. Petitioner was a student of +2 Second Year Arts. Prosecution case is that the occurrence took place in the night on 4.10.1996 in the house of P.W.5 when she was sleeping in a room. Her father -in -law P.W.3 was sleeping in another room whereas P.W.5's mother -in -law was sleeping in the verandah. The house which had half constructed walls having no doors and windows was open from all sides. Petitioner trespassed into P.W. 5's room, gagged her mouth by means of a napkin, threatened her not to shout, raised her saree and forcibly raped her. P.W.5 could, however, manage to scream. Her parents -in -law rushed to the place of occurrence. Seeing them, Petitioner started running away. P.W.5 caught hold of Petitioner's banyan as a result of which a portion of the banyan was torn and remained with P.W.5. P.W.3 and P.W.5's mother -in -law also tried to catch hold of the Petitioner. However, he could manage to escape from their clutches. In the process P.W.5's parents -in -law sustained injuries. P.W.3 as well as P.W.6, who happens to be P.W.5's husband's elder brother, chased the Petitioner who ran away and entered inside his house. P.W.3 informed the villagers including P.W.2, who also happens to be brother of P.W.5's husband, regarding the occurrence. Despite reports submitted at Japakuda Out Post and Salipur Police Station no action was taken by police. In such circumstances, Director General of Police was apprised regarding the occurrence. As directed, P.W.8, the Circle Inspector of Police, Salipur visited the spot and received First Information Report Ext.1 from P.W.5. In course of investigation, witnesses were examined and P.W.5 was medically examined on police requisition by P.W.4. Seizures were affected. Subsequently, P.W.8's successor -in -office P.W.7 took charge of investigation and submitted charge -sheet against the Petitioner. Petitioner took the plea of false implication. In order to substantiate the allegations, prosecution examined eight witnesses of whom P. Ws.2 to 8 have already been introduced. P.W.1, a resident of occurrence village, did not support the case of the prosecution. Prosecution also relied upon documents marked Exts.1 to 9. Petitioner examined D.W.1 and relied upon document marked Ext. A. On appraisal of evidence on record, learned trial court convicted and sentenced the Petitioner as stated supra.

(3.) IN assailing the impugned judgments, it was contended by the learned Counsel for the Petitioner that both the courts bellow have utterly failed to appreciate the evidence on record. It was argued that there was inordinate delay in lodging the First Information Report and the explanation offered by prosecution is not acceptable. Prosecution witnesses developed the prosecution story at different stages. Though it was asserted that a torn piece of Petitioner's banyan was retained with P.W.5, the same was not produced in course of trial. Medical report does not support the allegation of rape. It was further argued that prosecution case militates against probability factors inasmuch as the allegation that the Petitioner committed rape on P.W.5 when she was sleeping in her house being surrounded by other inmates is incredible.