FAGNU BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioners call in question the conviction and sentence u/Ss. 366/ 376/ 511 of the Indian Penal Code, 1869 (in short 'IPC') as awarded by the learned Assistant Sessions Judge, Bargarh and upheld in appeal by the learned Additional Sessions Judge, Bargarh. The petitioners were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 200/-, in default to undergo R.I. for one month more for the offence u/ S. 366, IPC and rigorous imprisonment for three years and to pay a fine of Rs. 200/-, m default to undergo R.I. for one month more for the offence u/ S. 376/ 511, IPC. In appeal the conviction and sentence u/S. 366, IPC were set aside; but the conviction and sentence u/ S. 376/ 511, IPC were confirmed.

(2.) The prosecution case, bereft of unnecessary details, is that on 4-11-1984 Santosini, the victim lady had gone to the fields to pluck green leaves. Thereafter she went to a nearby canal to take her bath and when she was about to come after finishing her bath, the petitioners caught hold of her from behind and dragged her along the canal up to the thrashing floor of one Nali Kheti. She was shouting for help. The petitioners made her naked, made her lie on the ground and were trying to rape her after making her naked. When she was struggling and shouting for help Adhikari Meli and Ranjit Dip, P.Ws. 3 and 1 respectively came from a nearby thrashing floor and on hearing their protest the petitioners fled away. The victim came back home, reported the matter to her mother-in-law since her husband was absent then; and after her husband (P. W. 2) returned information was lodged with police. Originally the petitioners were charged u/ S. 366/ 34, IPC; but additional charge u/ S. 376/ 511, IPC was framed against them. On consideration of the evidence on record, the conviction was made and sentence was awarded. The appeal filed by the petitioners brought them relief to the extent indicated above.

(3.) Main plank of argument of the learned counsel for the petitioners is that the evidence is so discrepant that no reasonable man could come to a conclusion about the offences having been committed by the petitioners. It is submitted that the evidence of P.Ws. 3 and 1 is discrepant to the core. In view of their categorical admission about their position near the canal, at the time of alleged occurrence they could not have seen anything as claimed by them. If their evidence is kept out of consideration, conviction should not be sustained only on the evidence of the victim lady. It is submitted that the courts below have attached undue importance to her evidence on a mistaken impression that a rustic Indian woman at the cost of her reputation and dignity would not make false allegations. It is also highlighted by the learned counsel for the petitioners that there was no injury on the victim, and if there was any resistance, as claimed by the victim, injuries were inevitable, particularly considering the allegation that rape was attempted on an uneven thrashing floor. It is also submitted that the scenario as described may at best amount to preparation for rape and not an attempted rape, even if it is accepted that the allegations are true. Alternatively, it is pleaded that the petitioners are young persons, belong to lower strata of the society and their family members are depending on their earnings for their livelihood and considering these aspects the sentence should be suitably modified. The learned counsel for the State, however, submits that the offences committed by the petitioners affected dignity and honour of a woman, which is so sacrosanct and there is no scope for any liberal sentence particularly when two courts below after careful analysis have found them guilty.