STATE OF ORISSA Vs. KAMAKSHYA PRASAD MEHER

JUDGEMENT

(1.) The State has preferred the above Government Appeal No. 39 of 1990 under S.377 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) challenging the inadequate sentence passed against the respondent (hereinafter referred to as 'the accused') who has been convicted under S.376 of the Indian Penal Code (for short 'IPC') and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000.00, in default, to undergo rigorous imprisonment for a further period of two months, in Sessions Case No. 1/6 of 1990 by the Assistant Sessions Judge-cum-Chief Judicial Magistrate, Bhawanipatna. The accused had preferred Criminal Appeal No. 26 of 1990 in the Court of the learned Sessions Judge, Kalahandi at Bhawanipatna challenging the judgment of his conviction and sentence passed in the aforesaid case. The said Criminal Appeal No.26 of 1990 was transferred to this Court and has been re-numbered as Criminal Appeal No. 191 of 2000. Both the appeals were heard together and this judgment disposes of both the cases.

(2.) The prosecutrix (P.W.17), a young unmarried girl aged about eighteen years, was staying with her elder sister (P.W. 16) and brother-in-law (P.W. 14) in village Pilkia under Junagarh police station in the district of Kalahandi. While P.W. 16 was working as an A.N.M. in the Pilkia Health Sub-Centre and staying in the Mahila Samiti building, the accused was serving as a Malaria Surveillance Worker attached to the said Health Sub-Centre. On 7-9-1989 the accused went to the residence of P.W. 16 and informed her that he would come there in the next morning and both of them would go to village Kelia. P.W. 16 waited at her house till 8 a.m. in the morning of 8-8-1989 and since the accused did not come, she left for village Kelia with her husband (P.W. 14) expecting that the accused might have alone left for village Kelia. When P.Ws. 14 and 16 left their house, the prosecutrix (P.W. 17) and the children of P.W. 16 were there in the house. P.W. 16 remained in village Kelia till noon, but could not find the accused there and returned back to her house at 1.00 p.m. It is alleged by the prosecution that after departure of P.Ws. 14 and 16 from their house, the accused came to their house and enquired about P.W. 16. Being informed that she had already left for village Kelia, he went away, but after some time again came to the house of P.W. 16, caught hold of P.W. 17 from her backside, laid her down on the ground and forcibly committed rape on her against her will and without her consent. After leaving P.W. 17 in the house, the accused departed. Returning to her house at 1 p.m., P.W. 16 found P.W. 17 sleeping on bed and asked her to bring a glass of water and noticed that the condition of P.W. 17 was not good for which she enquired as to what happened and ultimately P.W. 17 disclosed about the rape committed on her by the accused. P.W. 16 intimated the matter to her husband (P.W. 14) and after ascertaining the fact from P.W. 17, P.W. 14 lodged written report (Ext. 16) at 4.30 p.m. on 8-8-1989 before the O.I.C. of Junagarh P.S. (P.W. 18) who registered the case and took up investigation. During investigation, the I.O. seized the Saya and Saree of P.W. 17 stained with blood and semen, examined witnesses and sent P.W. 17 for medical examination. He also seized one gunny bag stained with blood from the spot. P.W. 18 searched for the accused, but could not trace him out. He seized a full pant and a shirt of the accused. The seized garments were sent for chemical examination. The accused surrendered in Court on 11-9-1989 and was remanded to jail in custody. After completion of investigation, P.W. 18 submitted chargesheet under S.376, IPC against the accused who stood his trial.Defence plea is one of denial and false implication due to hostility with the elder sister of P.W. 17.

(3.) Learned Addl. Standing Counsel for the State and Mr. N.C. Panigrahi, learned counsel for the accused, were heard at length. While learned Addl. Standing Counsel urged for enhancement of the sentence passed against the accused, Mr. Panigrahi contended that the impugned judgment of conviction is unsustainable in law due to improper and incorrect appreciation of evidence on record and urged for setting aside the same.