SANJAY BAG Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal is directed against the order of conviction and sentence dated 26-9-1998 passed by the Assistant Sessions Judge-cum-C.J.M., Balangir in Sessions Case No. 8 (b)/1 of 1998 wherein he convicted the accused for the offence under Section 376(2)(f) of IPC and sentenced him thereunder to undergo R.I. for ten years and to pay a fine of Rs. 5.000/-, in default to undergo R.I. for a further period of one year.

(2.) Bereft of unnecessary details the prosecution case is that on 25-9-1997 at about 10.00 a.m. while P.W. 2, a minor girl of about 8 years old was playing along with her friends-P.W. 4 and one Chenkidi alias Pratima in front of the house of Sisir Babu in Kansaripada of Balangir town, the accused came there and asked them to go with him to a nearby tank wherefrom he assured to bring lotus flower and give them. While P.W. 4 and Chenkidi did not agree to it, P.W. 2 proceeded with him towards that tank. On the way, he took her to a nearby bush on the backside of the R.I. office, spread his napkin under the bush, undraped the Chadi of P.W. 2 and lifting his own Lungi up, thrust his penis to her vagina. Out of pain when P.W. 2 cried he closed her mouth with his hand and committed rape on her. Thereafter he told her that he would give lotus flower to her in the evening hour and that she would not disclose the incident to any one. At about 11.00 a.m. when P.W. 1, the mother of the victim came to the place where the victim was playing she found her absent there. On query, Chenkidi, Smt. Padmini Achari (P.W. 5) and P.W. 4 informed her that the accused took her towards Malpada tank. While proceeding to that tank in search of the victim, on the way P.W. 1 found her coming crying. When questioned, she narrated the entire incident before her. On the same date at 1.30 p.m. P.W. 1. her brother and the victim (P.W. 2) went to Town Police Station, Balangir where P.W. 1 orally reported the incident before the L.I.C. who reduced the same into writing, treated it as FIR and directed the Sub-Inspector of Police (P.W. 10) to investigate into the case. In course of his investigation P.W. 10 seized the Chadi (M.O. 1) of P.W. 2, the Lungi of the accused (M.O. II), examined the witnesses, sent the victim and the accused to the hospital for their medical examination, arrested the accused and forwarded him to Court, seized the vaginal swab collected by the Doctor from the victim, sent the M.Os. I and II to the Deputy Director, RFSL Ainthapali, Sambalpur for chemical examination, collected the X-Ray plates of the victim and the accused, from the A.D.M.O., District Headquarters Hospital, Balangir, sent them to the Superintendent of V.S.S. Medical College, Burla for determination of their age, and after completion of investigation finding a prima facie case against the accused, submitted charge-sheet against him. The plea of the accused is complete denial of his involvement in the crime in question. In order to establish its case, prosecution examined ten witnesses of whom P.W. 1 is the informant and mother of the victim, P.W. 2 is the victim herself, P.W. 3 is a witness to the seizure of the Chadi of the victim, P.W. 4 is Muna Pandey, a friend of the victim with whom she was playing in front of the house of advocate Sisir Babu, P.W. 5 is the witness from whom P.W.1 knew that the victim had gone towards the tank with the accused, P.W. 6 is the doctor who examined the victim, P.W.7 is another doctor who examined the accused, P.W. 8 is a witness to the seizure of Lungi from the accused, P.W. 9 is the Assistant Professor of V.S.S. Medical College, Burla who after examining the X-Ray plates determined the age of the victim and the accused to be 8 and 18 to 20 years respectively and P.W. 10 is the I.O. The defence did not choose to examine any witness.

(3.) On assessing the evidence adduced on behalf of the prosecution, the trial Court held that the offence punishable under Section 376(2)(f) IPC was established against the accused beyond all reasonable doubt and as such, convicted and sentenced him thereunder as mentioned earlier.