DANARDAN PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal has been filed by the appellant challenging the order of conviction for the offence under Section 376, IPC in S.T.No. 15/134 of 1993 in the Court of Additional Sessions Judge, Balasore for his conviction under Section 376, IPC, appellant has been sentenced to undergo R.I. for seven years and to pay a fine of Rs. 500/ -. It has been ordered that if the fine shall be paid the entire sum shall be paid to the prosecutrix (P.W.No. 5). That order of conviction was passed on July 20th 1994 and the appellant as stated by learned counsel for the appellant was an under trial prisoner. Therefore, it is stated at the Bar that the appellant has already suffered the imprisonment as per the impugned judgment.

(2.) WHILE challenging the order of conviction Mr. S. K.Tripathy addressing the Court on behalf of Mr. D.P.Dhal argues that even if the entire logic adopted by the trial Court is correct, then also on a reference to the evidence of the prosecutrix (P.W.6) and the Doctor (P.W.No. 8) and the medical report Ext. 5, that does not make out a case of rape as defined in Section 375, IPC and punishable under Section 376(1), IPC and therefore appellant's conviction is liable to be set aside. After analysing the facts and evidence, learned Standing Counsel though initially defending the order of conviction under Section 376, IPC but on a re -reading the evidence on record, while agreeing to the argument of the appellant regarding no offence under Section 376, IPC having been made out, he argues that the evidence on record at least proves a case under Section 354, IPC. Learned counsel for the appellant does not dispute to the later part of the contention of the learned Standing Counsel.

(3.) THE occurrence as narrated by P.W.6 is with allegation of penetration and cohabitation. The evidence of P.W.No. 8 in that respect is the only link to find if the evidence of P.W.No. 6 is credible regarding the offence of rape. P.W.No. 8 (Dr.Kasturi Misra) in her examination -in -chief stated that -