PATRA MIRGAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) Conviction under section 376 I.P.C. and sentence to R.I. of 10 years also under section 354 I.P.C. and sentence to R.I. of 2 years in Sessions Case No. 33190 have made the appellant prefer this appeal from jail. The skeletogenous facts are that the victim lady P.W. I is the wife of the appellant's wifes brotherTs son. The appellant had married the sister of P.W. I father-in-law, was his domesticated son-in-law, and was residing in a separate house in the same compound of P.W. ITS house. In the village there are two groups, one of Mirgans and the other of Bhotras. P.W. I, who was a Bhotra girl, had married P.W. 5 who was a Mirgan boy. The appellant who was a Bhotra had married the paternal aunt of P.W. 5. The occurrence alleged against the appellant happened on two days, i.e. on 25.12.1989 and 27.12.1989. 25.12.1989 was a Monday. It is the prosecution case that on the first day of the occurrence the appellant entered inside the house of P.W. 1 during the absence of her husband husbands brother, his wife and son. P.W. I who had stood up on hearing the sounds of forcible breaking open of the bamboo door, was caught hold of by the appellant and he also pulled out the Saree from her rendering her naked and attempted to cohabit with her. P.W. 1 resisted such attempt and pushing the appellant, escaped through the back door of the house to the house of a neighbour P.W. 3 and thereafter they all came to the house. Seeing them the appellant ran away. She informed the matter to her husband next morning and a Panchayat was convened in the village. In the Panchayat the appellant admitted his guilt saying that his objectionable behaviour was because of his having been drunk and begged to be excused. Again on 27.12.1989 evening when P.W. I had gone out to ease, the appellant caught hold of her from her back near a tamarind tree and forcibly made her lie down. When she raised protest, the appellant, who had a knife in his hand, threatened her with dire consequences. He removed her Saree and under-garment, also removed his own clothes and forcibly cohabited with her. Hearing the sounds of P.W. I, P.Ws. 3 and 4 and one Santo Mirgan came there and discovered the appellant on P.W. I, both in a naked condition, and seeing them he ran away naked taking his knife and Lungi with him. The bangles of P.W. I had been broken and she had also sustained injury on her right wrist. The narrated the incident to her husband on his return and on the next day she along with her husband (P.W.5), and P.Ws. 3 and 4 went to the Out-post and made oral report but no action was taken. Since the police did not take any action, she lodged the complaint before S.D.J.M. on 29.1.1990 who took cognizance in the matter and committed the case to the Court of Session.

(2.) At the trial P.W. I in support of her case examined besides herself P.Ws.3 and 4 as the immediate post-occurrence witnesses and P.W.5 to whom she narrated the incident P. W. 2 deposed that he had seen the appellant as running away at a distance. The appellant examined the Ward Member of the village, Deenu Bhotra as D.W.I.

(3.) Reading the evidence of P.Ws. 1, 3 and 4 it is apparent that their evidence is wholly consistent and that the witnesses have stuck to the case as was revealed in the complaint petition. Mr. Acharya, the learned counsel for the appellant does not dispute such fact except pointing out some discrepancies which are minor in nature. But the main plank of his submission is the improbability of the case and the gross delay in filing the complaint without any explanation for the same. Certain admitted features as appear from the prosecution case are that in the village there were two groups as has been seen earlier. The appellant admittedly belonged to Bhotra group whereas P.W. I though a Bhotra girl had been married to a Mirgan man. There was also dispute between the appellant and P.W. ITs husband. D.W. I was the leader of the Bhotra group. There was assault between P.W. ls father-in-law and Bhotra people and hence there was misunderstanding between Bhotras and Mirgans. Admittedly P.W s. 3 and 4 are Mirgans. Another feature is that even though a Panch meeting was held on 26.12.1989 yet none of the Panch members have been examined. The complaint having been made little more than a month after the occurrence, there was no medical examination of P.W. I or the appellant. The only evidence regarding the physical violation of P.W. I is the oral evidence of P.Ws. 1,3,4 and 5. It is in this background Mr. Acharya submits that in view of the admitted enmity between the parties not only between different groups but also personally between P.W. 5 and the appellant, it was improbable that the appellant would attempt to commit rape upon P.W. I and accomplish it on the next day even after her complaint before the Panch and that the story on the contrary is a got-up and cooked up one so as to falsely implicate the appellant.