SIBA PRASAD MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant has challenged the judgment dated 15 4 1998 passed by Shri K. B. Swain, Additional Sessions Judge, Balasore in S. T. No. 9/74 of 1997 convicting him under section 376 of the Ind ian Penal Code (for short 'I.P.C.') and sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000,00 in default, to undergo rigorous imprisonment for a further period of one year.

(2.) BRIEFLY stated, prosecution case is as follows : The prosecutrix (p. w. 5) had slept in her house with her daughter aged about three years in village Karanja under Baliapal police station in the district of Balasore and her husband (p. w. 6) had been to another village to earn his livelihood. It is alleged that on 6 2 1996 at about 2 a. m. the appellant (hereinafter referred to as 'the accused') knocked at her door and when she did not open the door, he forced his entry into the house by breaking open the bamboo Tati with a dagger in his hand and when p.w. 5 tried to raise hulla, the accused threatened her pointing the dagger at the neck of the child and forced her to lie down on the bed silently and committed rape on her. After departure of the accused from her house, p. w. 5 reported the incident to p. ws. 1, 3 and 4 and she was advised to stay in the house of her parents till return of her husband. In the morning p. w, 1 went to call p. w. 6, the husband of p. w. 5, and after his arrival the occurrence was narrated to him. On 8 2 1996 p.w. 5 accompanied by p. w. 6 went to Baliapal P. S and lodged the written report (Ext. 3) before the O.I.C. of the said P.S. (p.w. 10) who treated the same as F.I.R., registered the case and took up investigation. In course of investigation he examined witnesses, seized the wearing apparels of p. w. 5 and sent her for medical examination. He also sent the wearing apparels of the victim for chemical examination. On his transfer from the station p. w. 10 husband over charge of investigation to an S.I. namely, B. Satpathy, who in his turn handed over charge of investigation to p.w 8 on 23 8 1996. P.w. 8 arrested the accused, sent him for medical examination on2 1 8 1996 and forwarded him tocourt in custody and after completion of investigation submitted charge sheet under sections 458/ 376/342/505, I.P.C. against the accused who stood his trial after being charged under the aforesaid sections. But the learned Addl. Sessions judge has reflected in the impugned judgment that the accused Was charged under section 376, I.P.C. and finding him guilty of the said charge, convicted him, without mentioning a'bout the other charges.

(3.) MR . Mohapatra, learned counsel for the appellant, and Mr. Pradhan, learned Addl. Standing Counsel appearing for the State, were heard at length. While Mr. Mohapatra contended that the impugned judgment convicting the accused of the charge cannot be sustained because of improper appreciation of evidence on record, the learned Addl. Standing Counsel supported the impugned judgment.